The Canons of Constitutional Law

Abstract

Academic and political debates about what texts are canonical in the liberal arts have been occurring for some time. In this Commentary, Professors Balkin and Levinson discuss canons and canonicity in the study of law in general and of constitutional law in particular. Canons, they contend, are not simply collections of texts. Skills, approaches, forms of argument, standard examples, and even stock stories can be equally canonical to a discipline or culture. The authors argue that the most significant differences between how canons are formed in law and in the liberal arts stem from differences in institutional context. First, because law schools are professional schools, concerns of pedagogy, cultural literacy, and academic theory diverge more in law than they do in the liberal arts and hence form distinct if overlapping canons. Second, because legal canons rely heavily on pronouncements of courts and legislatures, liberal arts scholars have more control over their canon than do legal scholars. Nevertheless, legal scholars do have some agency in forming their canon, and the authors contend that the canon of constitutional law needs serious revision. The current study of constitutional law is too much centered on the opinions of the Supreme Court and lacks comparative and historical perspective. The narrowness of current canonical materials has had unfortunate effects for constitutional theory and legal education, encouraging too much specialization and focusing attention away from basic questions about the justice of the legal system. A revitalized constitutional canon should pay attention to structural questions that do not often come before courts, and it should include nonjudicial interpreters of the Constitution, particularly representatives of political and social movements whose interpretations often shape and influence the direction of constitutional interpretation.