The Technicolor Constitution: Popular Constitutionalism, Ethical Norms, and Legal Pedagogy

Abstract

In order to educate lawyers effectively, legal education must orient legal principles within the greater purpose of the law: to serve as the vehicle for a society striving to realize democratic ideals. Too often, however, students are not asked to examine the variant shades of the Constitution; they are not asked to question the efficacy of court decisions. They are not asked to concentrate on what the law "should be" as well as what the law "is." The role of lawyers as policymakers and guardians of democratic values has for too long been virtually ignored in the law school curriculum. Consequently, the aim of this essay is to support my opinion, with particular reference to law school pedagogy, that popular consideration of the Constitution as a tool for social betterment should be more highly valued and encouraged. The essay is an effort to put law in historical context, tracking episodes in American constitutional history in which the people were more protective of constitutional liberty than the courts were disposed to be - episodes in which the people shaped the content of a constitutional norm and the courts followed. Inquiry and challenge proved in these instances what law schools often fail to assert with authority: The Constitution is a document of the popular conscience. The essay concludes with some observations concerning the proper place of "popular" constitutional theory in constitutional education.

Keywords: pedagogy, constitutional law, popular constitutionalism