Josh Blackman:

Randy Barnett and I have written a new essay, titled Coping With a Court One Disagrees With. This essay was inspired, in part, by a recent New York Times article that identified a “crisis” in teaching constitutional law. In our view, there is no crisis. But we can relate with professors who are having difficulty teaching decisions they disagree with. We’ve done it for the entirety of our careers. We suggests that our method of teaching may be useful for liberal and progressive professors who are having trouble coping with the current court.

Here is the abstract:

Is there a “crisis” in teaching constitutional law? In our view, there is not. Still, we can empathize. As libertarian-conservative-ish law professors, for years we taught Supreme Court decisions that we disagreed with. We teach constitutional law as a historical narrative that began at the founding and continues to this day. The narrative approach underscores the contingent nature of what at any given time appears to be fixed and unchangeable. The narrative also remains remarkably stable from year to year even as new cases are added. This approach also makes preparing one’s syllabus relatively easy to do each year, regardless of what the Supreme Court may have decided in its most recent term.

The pedagogy we developed was premised on a Supreme Court jurisprudence we largely disagreed with. Indeed, we still disagree with much of this jurisprudence, especially the cases that were decided right before, during, and after Reconstruction. While some of these cases, like Prigg, Dred Scott, and Plessy are now in the anti-canon, others like Slaughter-House, Cruikshank, and the Civil Rights Cases remain good law. This pedagogy worked before 2016 and it will continue to work no matter what happens in the future. We submit that the time is ripe for liberal and progressive professors, especially those who are having trouble coping with the current Supreme Court, to consider adopting our narrative approach to the constitutional canon and anticanon.