The Next Required Law School Course: History of America’s Foundings

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St. Mary's Law Journal


The Supreme Court has cited the Federalist Papers hundreds of times to analyze the meaning of the Constitution. The Anti-Federalist Papers, on the other hand, receive few citations in the Court’s opinions. The prevalence of Federalist Paper citations and the dearth of Anti-Federalist references necessitate a similar response from law schools everywhere: a required history class that covers the Founding Era, among other periods. The Court’s citations to the Federalist Papers alone evidence the importance of this era to constitutional law. The prominent role of amicus briefs from historians confirms that importance. But law schools must do more than teach what the advocates for ratifying the Constitution believed it meant. They must also provide students with the tools of historical analysis needed to develop a nuanced understanding of what made the Constitution so revolutionary and how its ratification process revealed important hopes and fears.

Law schools should also make the Reconstruction Era a part of that required course. Coined The Second Founding by Eric Foner and others, this era transformed the Constitution through the Thirteenth, Fourteenth, and Fifteenth Amendments and witnessed fundamental changes in the general understanding of “We, the People.” This era’s Congress has been called “the Congress of the Revolution” for its work on civil rights. Supreme Court opinions have hinged on channeling the spirit of these “Reconstruction Amendments” and their accompanying legislation.

Similarly, many justices have leaned on the spirit and text of these transformational amendments to ensure their core is preserved. For example, in Maine v. Thiboutot, the Court held that laws from the Reconstruction Era “‘must be given the meaning and sweep’ dictated by ‘their origins and their language’—not their language alone.” It is those “origins” that are unacceptably absent from legal pedagogy. Students must also learn how to analyze and respond to legal arguments grounded in historical analysis. Though students necessarily master a narrow type of historical inquiry, identifying and evaluating precedent, too few students learn how to spot and challenge historically-oriented adjudication that activist judges have used to break from precedent. Fearful of being called out for “law-office history,” courts avoid attempting to ground their decisions in superficial historical analysis. This Article makes a case for the American Bar Association requiring law students to complete a history class on the nation’s two “Foundings.”

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