Taking the Constitution Seriously

Crisis, June 1, 1987.


Unlike the first federal judges, whose formal legal education was likely to have been very limited indeed — John Marshall was largely self-educated in the law and John Jay, the first chief justice, learned his in an office–today’s judges come from the schools where they are formally instructed in the various branches of the law, including constitutional law. There is probably not a law school in the country that does not offer that particular instruction or many that do not make it part of the required curriculum. There is, however, good reason to doubt that many, or even if any, offer a course in the Constitution. It is in fact not unusual to encounter constitutional law courses that begin with the Fourteenth Amendment, a practice that is defended on the ground that, after all, the schools are in the business of training practitioners and the great bulk of an attorney’s constitutional law practice will be in the area of the Fourteenth Amendment.

The situation is only marginally better in the colleges. Jefferson advised students interested in the law to read Adam Smith’s Wealth of Nations, “the best book extant” on political economy; Montesquieu’s Spirit of the Laws; Locke’s little book on government, “perfect as far as it goes”; and, “descending from theory to practice there is no better book than the Federalist.” Such advice is rarely given today, and almost never as part of a curriculum in constitutional government. Undergraduates will be offered courses in constitutional law, but in the typical political science department that is likely to involve the study of judicial behavior or, at best, civil liberties. And there, as in the law schools, that means the study of Fourteenth Amendment rights, with the consequence that there, again as in the law schools, constitutional government comes to mean go government within the limits prescribed by the judiciary and only nominally by the Constitution, or by a Constitution kept “up to date” — which is to say, revised — by the judiciary.