Neglected Policies: Constitutional Law and Legal Commentary as Civic Education

Neglected Policies: Constitutional Law and Legal Commentary as Civic Education, by Ira L. Strauber. Durham, NC: Duke University Press, 2002.

In the old days, political scientists studied and taught constitutional law much as law schools did: by reading, briefing, and discussing cases. One famous

teacher insisted that the most important question in a student's brief was: "How would you have decided this case?" Once the behavioral revolution hit the judicial field, some enthusiasts preferred counting votes to reading cases. This way of studying law has produced two conflicting models of judicial decision making: the attitudinal, which maintains, not without empirical support, that judges' votes reflect their policy preferences, and the legal, which stresses precedent and doctrine. At present, the attitudinalists appear to have the advantage.

Ira Strauber presents yet another pedagogical approach. He criticizes the "interpretive community" (teachers and critics) for overemphasizing "the ideology of involvement," "the law's formalisms," or both (p. 1). His preferred approach is an "agnostic skepticism" that emphasizes "commonplace contingent and/or circumstantial social-fact, social-scientific, and consequentialist considerations" (p. 2). The underlying premise (though not necessarily the conclusion) of agnostic skepticism is that there are no right answers or perfect rules.

This "middle course" employs hypothetical questions and stresses the "underdeterminacy" (p. 3) of ideology and formalisms. Agnostic skepticism discourages unwarranted certainty and promotes civility and tolerance. An interpretive community guided by agnostic skepticism will do a better job of civic education; people trained in these habits of mind will make better citizens. The last chapter asserts that "teachers and critics should link legal and political lessons (like those taught here) to people's mundane concerns about private relations" (p. 220). The author's failure to develop this idea is the book's only disappointment.

Strauber is realistic about the limited prospect of civic educators substituting agnostic skepticism for the traditional classroom arguments over abortion and capital punishment or the equally familiar formal analysis of interstate commerce doctrine. Strauber's pedagogy is intended to complement traditional methods, not to replace them. Neither ideology nor formal analysis works with all cases. An ideological approach to Dred Scott or Korematsu amounts to flogging a dead horse; nor will doctrinal analysis help much with Bush v. Gore. In these contexts, either approach is all too likely to result in student agreement about judicial stupidity, ignorance, bias, or worse. While these exercises may increase student solidarity, they have limited value as learning tools.

The reader whose curiosity is piqued by agnostic skepticism will not be frustrated by this book. Strauber provides several well-constructed, fleshed-out descriptions of how agnostic skepticism works in practice. For example, when he substitutes agnostic skepticism for the usual formalistic approach to federalism, he finds "a neglected constitutional politics of cooperation and competition that has little to gain from disputes about the sufficiency of facts to determine whether the substantive-effects test is satisfied or not" (p. 139). Point taken: constitutional law has too often stressed federalism at the expense of intergovernmental relations. In the abortion cases, agnostic skepticism remarks "the coincidence between the casey decision and the ambivalent attitudes and values of most citizens as contrasted to the attitudes and values of abortion activists and litigators on both sides" (p. 169).

Neglected Policies demonstrates the truth of the old academic adage that teaching and scholarship complement each other. The author's fresh approach to the study of public law unites case analysis with judicial process without burying the reader in numbers. But the author has not convinced this reviewer that agnostic skepticism is a superior mode of civic education. Will this pedagogy promote civility and tolerance, or will it encourage students to become more apathetic than they already are? Agnostic skepticism can easily deteriorate into an "on the one hand, on the other hand" stance more conducive to shrugged shoulders than joined hands. Nevertheless, Ira Strauber makes a strong case that agnostic skepticism is worth a try.