Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching

In 1983 Martin Shapiro worried that the “new jurisprudence of values” being promoted by the new generation of public law scholars in political science would “serve as a cover for slipping back into playing ‘little law professor’ for undergraduates.” Proponents of the “jurisprudence of values” in political science, who engaged in constitutional theorizing about individual rights and the structure of governing institutions, would “writ[e] conventional case law doctrine” that “contain[ed] no distinctive political analysis.” Worse, the fruits of the behavioral revolution might rot should normative concerns take center stage in public law inquiry. Rather than further integrate the study of courts into mainstream political science, public law scholars would spend their time telling Supreme Court justices how to do their jobs. Shapiro predicted, “[P]olitical scientists trained in the empirically oriented ‘American politics’ field will be shoved to the edges of ‘public law,’ and political jurisprudence will be converted to ‘legal and political theory.’” Abandoning American constitutionalism was the best antidote for the threat a jurisprudence of values presented to the social science study of law and courts. Students of the judicial process, Shapiro declared in 1989, should explore “any public law other than constitutional law, any court other than the Supreme Court, any public lawmaker other than the judge, and any country other than the United States.” Recent developments in the public law subfield have confirmed some of these fears, while alleviating others. Prominent scholars continue paying disproportionate attention to American constitutional law as handed down by the Supreme Court of the United States. Twenty-nine of the forty-two awards for scholarship given out since 1990 by the Law and Courts section of the American Political Science Association have gone to works on the Supreme Court or American constitutional law. This public law scholarship, however, speaks with political science voices. Both behavioral and humanistic scholars are developing distinctive empirical and normative insights into American constitutional law, theory, and politics. Their work makes connections between ongoing constitutionalist themes and such traditional concerns of political science as political development, rational agency, comparative analysis, political institutions, and political philosophy. Law and Courts studies on the implementation of judicial decisions, sophisticated voting on constitutional courts, the interaction between elected and judicial officials, constitutional analysis outside the courts, and the broader ideological foundations of constitutional doctrine are beginning to lead, rather than always follow, academic law. A small but increasing number of distinguished law professors now borrow from public law analysis in political science to garner new insights into American constitutionalism. Remarkably, at a time when more academic lawyers play “little political science professor” in their scholarship, many political scientists continue playing “little law professor” when teaching basic undergraduate courses on constitutionalism. The new constitutional scholarship in public law has not made substantial inroads into the undergraduate syllabus. Undergraduates taking political science courses on constitutional law too often read the same cases and perform the same exercises as students taking second year constitutional law courses in law school. Judging from syllabi alone, the most important development in political science scholarship during the past forty years has been the additions to Robert McCloskey’s classic, The American Mark A. Graber is a professor of government at the University of Maryland, College Park and a professor of law at the University of Maryland School of Law ([email protected]). He is the author of Transforming Free Speech, Rethinking Abortion, and Dred Scott and the Problem of Constitutional Evil. The author thanks Rogers Smith, Howard Gillman, Keith Whittington, Ran Hirschl, Jennifer Hochschild and several (not-so) anonymous reviewers from their advice and encouragement. Apologies to the numerous talented young students of public law whose fine works were omitted to conserve space. Review Essay