1) Do we teach that we are living in unique times with a unique President raising unique separation of powers, federalism, and rights issues? If so, how do we deal with pro-MAGA students?
2) Do we raise the question whether we are in or facing a constitutional crisis? How do we do that without sounding partisan?
The answer is no. That is, no to the first part of the question, and then we don't need to reach the second part of your question... except to to turn it around and ask you to ask yourself what it says about you. You don't want to sound partisan? You need to deal with students who are not on your side?
I think I know how you'll answer. You'll claim that you are not partisan. You're just right. Those MAGA students over there are wrong but they believe that they are right. You'd like to portray them as political in a way that you think you are not, and how can you do that if the cases you're reading back them up?
When I was a law student — 1978 to 1981 — I found conlaw tedious because the professors were always looking back on the Warren Court, the Court that got things right, and Court is getting things wrong now. It was particularly tedious because that was before the Federalist Society emboldened conservative students. One reason I wanted to teach law is because law school deprived me of the vigorous debate I thought I was going to have. Finally, here it is: Constitutional Law! This is going to be great! — I thought, as I sat down on the first day.
By the way, Professor Segall's 20th question is about the Federalist Society:
How much time, if any, should we spend on the Federalist Society's role in generating the reversal of so many precedents across constitutional law and for sponsoring all six current GOP justices?
Spend as much time as you spend on the role of liberal institutions that engage in litigation and work on judicial nominations.
Posts
44 comments:
"I was sure that Hillary Clinton was about win the election and that after she appoints the successor to Justice Scalia, with 5 strong liberals on the Supreme Court, constitutional law was going to become very boring."
Oh, right. Like the Russian Revolution was boring.
The purpose of the Constitution was to create a unique social contract that allowed individual freedom to be maximized while maintaining social harmony.
The purpose of Eric Segall's questions is to gain power for his political tribe.
Until you get your priorities correct and your actions match your words your effort is going to fail.
Maybe they could teach why just 5 federal courts think it is perfectly fine to issue nationwide injunctions before actually hearing the full case?
I think I know how you'll answer. You'll claim that you are not partisan. You're just right. Those MAGA students over there are wrong but they believe that they are right. You'd like to portray them as political in a way that you think you are not, and how can you do that if the cases you're reading back them up?
The success of failure of a social contract is the number of people in society that accept the results of the contract.
There will always be people who disagree with the outcomes.
But do they continue to work within the system or do they try to tear it down?
Constitutional law professors as a group are just bad.
They should have the Constitution memorized. There are not very many words in it. They should know the federalist papers well.
Instead you have people like Ann teaching Constitutional law. Ann believed that the Constitution and the Bill of Rights included a federal right to an abortion.
The whole edifice is just absurd.
Using the labels outs you as not a thinker. You should never been promoted to where you are in the first place…
…at the least articulating your opposition’s positions accurately will help you answer your own questions or help you find them irrelevant…
I don’t know why but I’ve been reading this blog since the beginning (2004?) and I think professor Althouse’s view on core constitutional issues has changed dramatically from then till now. I assume she has no problem with the executive orders sanctioning law firms for representing people or employing people trump doesn’t like.
I would phrase my comment as a question but one thing I’ve learned is that the professor hardly ever responds to questions. Her blog her choice
---- The answer is no.
A+
---- That is, no to the first part of the question, and then we don't need to reach the second part of your question... except to to turn it around and ask you to ask yourself what it says about you. You don't want to sound partisan? You need to deal with students who are not on your side?
I think I know how you'll answer. You'll claim that you are not partisan. You're just right.
Another A+ and an F for the author.
…and I have a question- what are you going to do if this point of view you believe is ephemeral outlives Trump? Maybe you really should retire…
Jimmy numbers, maybe if Trump had actually done what you'd said that she'd have a reason to respond. Your "question' is so biased as to be largely rhetorical.
Early in the 20th Century there was a political cartoonist who had an Irish bartender Mr. Dooley as a character. There was a cartoon where "Mr. Dooley" opined, "Of course the Supreme Court reads the election returns". Things evolve over time. The same folks who rejoice over the reversal/overturning of Dredd Scott and Plessy v. Ferguson are aghast at the utter horror of overturning Roe v. Wade. If you want to have a "living constitution" then you better be ready for some teenage tantrums of one kind or another.
My experience was that Con Law was was taught as a kind of Greatest Hits album of liberal triumphalism. No uncomfortable questions were socially appropriate.
Now Federal Jurisdiction, otoh, using the Hart and Wechsler casebook, was a meaty exploration of the meanings of federalism, separation of powers, legitimacy and legality.
Law professors taught me how to see the categorical split between high cognitive function and good mental health.
I went to Boalt Hall for law school. Being Boalt Hall I assumed I was the only conservative in the whole student body. I was pleasantly surprised that Senator Ted Stevens’ daughter was in my mod. So there were at least two conservatives.
Con law was my favorite subject. My professor didn’t make it political and focused on commerce clause cases to give us a deep dive into a single subject instead of a little taste of everything. Interestingly, at Boalt Con Law was an elective course and not required at all to get a degree.
“ Do we teach that we are living in unique times with a unique President raising unique separation of powers, federalism, and rights issues? If so, how do we deal with pro-MAGA students?”
Most MAGA students would agree that Trump is unique. They just think he’s good-unique, not evil-unique. And they believe he shouldn’t be unique, because there should have been bunches of aggressive R presidents before him.
RR
JSM
An interesting collection of leading questions.
Profs of all ideological colors should be rejoicing that the country has become an exam question!
RR
JSM
How did he teach conlaw in times with a non compos mentis president and an unelected executive who refused to enforce the nation's immigration laws?
the people are to be TOLD.. Not asked..
Democracy REQUIRES complete obedience
People are to be LED. FORCE compliance!
When I was a law student — 1978 to 1981 — I found conlaw tedious because the professors were always looking back on the Warren Court, the Court that got things right, and Court is getting things wrong now.
Althouse, I was a few years ahead of you, but clearly remember my ConLaw professor (Professor Fletcher). Very liberal, but even he had a difficult time teaching Justice Douglas's argument that rocks and rivers had some sort of "rights" under the Constitution. He was a big fan of JFK and clearly hated Nixon. His wife (Betty Fletcher) was a partner in a big Seattle law firm (in that day, female partners were rare) and she eventually went on to be appointed to the WA State Supreme Court. Name was often thrown around as a potential USSC Justice (first woman!!!) but fortunately, Carter never had a chance to appoint anyone.
Didn't Obama teach Con law at U of Chicago? I believe he was on staff, paid fully to maintain an office on campus, then taught a single course (each semester?) after several years had gone by
I did my undergrad at UC San Diego and two of the eight residential colleges are named after former Supreme Court justices -- Earl Warren and Thurgood Marshall. I was a Marshall student, but it was called Third College when I attended long ago.
I'm not sure why the heavy emphasis on justices at UCSD since UCSD is a very techie, science-focused place. The other colleges are named after Roger Revelle (oceanographer), John Muir (the naturalist), and Eleanor Roosevelt (activist, former first lady). Colleges Six, Seven and Eight are unnamed. Would they dare name one after Clarence Thomas? Personally, I'd like to see more scientists honored. It's such a political football though, unfortunately, and the administration leaves the colleges unnamed for years and years.
I took a ConLaw course at UNCC sometime around '78. It was taught by a Professor Brenner who clerked for Felix Frankfurter. Teaching it was a lot simpler than Eric Segall's 20 questions.
We used Robert Cushman's "Cases in Constitutional Law." We read 43 cases from Marbury to Roe. We were told to break down the decision into five parts: the basic facts, how it progressed through the court system, the issue(s) involved, the decision and the reasoning.
It was the hardest course I ever took. I'm not a lawyer, but had to learn to reason like one. I'm not proud of my academic record, but I worked hard in that class.
Biggest takeaway was realizing that Roe v. Wade was a bogus decision, spending page upon page trying to find a right to medical privacy in the Constitution that simply wasn't there.
they got very little right, even when they came to the right conclusion, using sociological data instead of statutes for instance, or conjuring griswold out of whole cloth, because they wanted to warp the constitutional fabric,
reveille was the scientist that gore extrapolated the findings for
'earth in the lurch' as Rush used to call it, 'there shall be no law' well progs have a way of working around that,
you can't try a president in office, or outside, only impeachment and removal, yet the dems found a work a round, they were sloppy, the next time,
in the documents case, there was only judge who actually bothered to read the law, the other proscriptions fell by the waysides in Atlanta, but they came very close to succeeding in dc
"The purpose of the Constitution was to create a unique social contract that allowed individual freedom to be maximized while maintaining social harmony."
Oh, come off it. The purpose of the Constitution was to take a couple more turns on the bolts holding together the ramshackle coalition that had somehow managed to defeat the most powerful nation on Earth, in the sober estimation that the battle might be over but the war was just beginning. Unless maybe your view is that the institution of slavery allows individual freedom while maintaining social harmony.
Epstein, and Yoo and Epstein, no longer have law podcasts at Hoover because nothing relates to principles anymore so there's nothing to say. You can say what should happen but it never does.
constitutions of 'positive liberty' like the Soviets, the South Africa, et al, have become durable tyrannies, or mere hellscapes, one fmr justice, raved over the last over the American, this is part because they mistake the source of law, it is not man, but god given,
To me, it's astonishing this is so "difficult". I took Con Law while I was at Harvard Law School 1976-79. I also made some money on the side doing research for his future (successful) Con Law textbook for Larry Tribe. I had Steve Breyer as a Professor (terrific, btw -- a great Socratic style teacher). I do claim to know this part of the academic world as it existed half a century ago.
What I recall is it was, even by those with a view like Larry, they still taught Con Law as
a historical study -- here are the great controversies, there the important dissents and opinions, and here the great arguments for and against how it worked out.
The professors' views were....identifiable, but not overtly
pressed. In 1976-79, I never felt I had to "agree" with a professor's view, so long as I knew the case law and I had a well-thought-out view. And this was soon after the Harvard riots of 1969 -- not like it was in the distant past.
I do not know what goes on at HLS today. But if Con Law is
being taught there or elsewhere as a right/wrong thing, then ....
I mean, what can we expect? Not good.
As we know, any party that has the White House and Congress can (constitutionally) neuter the Court. That sounds "awful" to some, but the UK
has always lived with it (Parliamentary supremacy).
Epstein on Rule of Law remains the best podcast on anything ever youtube.
He used to argue everything starting like that. You can see it will no longer work.
if power is your objective, in itself, then principle serves little,
eg: if freedom of speech can only serve 'fundamental transformation' then it is a dead letter, as it became largely under the tech companies from 2021-2025, with some exceptions, because the major publishers didn't care about
the truth,
Which brings me to another point.
I suspect most Americans think the US is more democratic
that the UK. The reverse is true (once you understand the monarch has no power).
The UK has an omni-competent Parliament. Judges (especially nowadays
under some Euro treaties) can try to end-run Parliament,
but essentially the judicial part of UK government has about 2% of the power of the US judicial branch.
Let us recall the Constitution establishes the judicial branch,
but does not allocate its powers versus the legislative and executive branches.
John Marshall claimed the judicial was a co-equal branch
branch. Nobody succeeded in opposing his diktat, although famously Jackson uttered his famous words.
but only FDR did through the court packing strategem, one might say some 70 years later obama prevailed upon the weak willed 'its a tax' and the less said about obergefell the latter,
well there is nothing like the bill of rights in the uk, so citizens really are at a disadvantage, then you have how spectacle at hungerford and dunblane made any self defense a moot pointa similar thing happened with the port arthur even in another Commonweath country of Australia, hence what occurred in 2020
so there was a time when Tribe was not evil, good to know, by the 80s, he had dispensed with that precept, once there was a balance of constitutionalists like Scalia, but the more they were selected the more academia tilted left, of course the likes of say Lino Gragiia were marginalizes,
Con Law was also my favorite subject in school. This was because I knew nothing about it as Florida had just dropped the requirement of 12th grade Capitalism vs. Communism. (That was stupid but Reubin Askew was gov at the time). The prof was intelligent, well-versed and certainly IIRC didn't try to teach us right vs wrong in his opinion. The writer of the article above -- he doesn't see what he is saying? The Left, as always, is simply insane. Anything is permissible because Orange Man Bad.
one might say it depends if the Parliament, has a republican (small r) or a democratic (popular liberty) even under the Tories, they seem to have ignored the people's rights, now under Labout the state apparat seems totally empowered,
in the US as with Spain for instance, federalism made for different results in states and provinces, ie the Madrid province was more flexible under the ridiculous lockdown rules, akin to Florida,
he knows exactly what he is saying 'tails you lose, heads he wins' the result is what matters,
it seems like he subscribes to the green eggs and ham strategy,
that judge boasberg xinis and company follow, the President can do nothing, except if tis section 1512, the President can do anything to anyone,
I would spend one day on Roe and Casey, and one day on Carhart and Dobbs.
Carhart (and Carhart II) are the obvious infanticide cases, the "hard" cases that liberals want to ignore. I doubt those cases make it into the ConLaw casebooks. But you can't understand why the happy narrative of Casey fell apart if you ignore the brutal reality of Carhart.
So those are the four cases law students ought to read: Roe, Casey, Carhart, Dobbs. There are other fucked up abortion cases, but Carhart is the most brutal and obvious explanation for why the pro-life movement won this fight.
the kelo decision was as perfect a subversion of eminent domain as possible, does he have any quarrel about that,
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