The Crisis in Teaching Constitutional Law


Saturday, March, 2024

by Patrick Reevell

sunsteinsharot

If you attended law school at any time over the past half-century, your course in constitutional law likely followed a well-worn path.

First you learned the basics: the Supreme Court’s power to say what the Constitution means. Then you read and discussed cases that set precedents for different parts of the Constitution — the commerce clause, presidential powers, due process, equal protection and so on. Finally you studied how the court balances individual liberties against the government’s need to act in the public interest.

It was all based on an underlying premise that has long bound together everyone involved in the project of training the next generation of lawyers: The Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity than in imposing a partisan agenda.

The premise no longer holds today. Many in the legal world still believed in the old virtues even after Bush v. Gore, the 5-to-4 ruling that effectively decided the 2000 presidential election on what appeared to many Americans to be partisan grounds. But now, the court’s hard-right supermajority, installed in recent years through a combination of hypocrisy and sheer partisan muscle, has eviscerated any consensus.

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way.

“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, a professor at the University of Michigan law school, told me.

Rebecca Brown, at the University of Southern California, has been teaching constitutional law for 35 years. “While I was working on my syllabus for this course, I literally burst into tears,” she told me. “I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.”

At least she’s still trying. Larry Kramer, a widely respected legal scholar and historian who was my constitutional law professor at N.Y.U. 20 years ago, called it quits in 2008, on the heels of the Supreme Court’s divisive decision in District of Columbia v. Heller, which struck down decades of precedent to declare for the first time that the Second Amendment protects an individual right to bear arms. Many observers felt that Heller’s majority opinion, by Justice Antonin Scalia, intentionally warped history to reach a preordained result.

Professor Kramer was the dean of Stanford law school at the time, and after the Heller ruling, he told me recently, “I couldn’t stand up in front of the class and pretend the students should take the court seriously in terms of legal analysis.” First-year law students, he felt, “should be taught by someone who still believed in what the court did.”

Patrick Reevell

Patrick Reevell serves as the principal political analyst at RicanMagazine, specializing in American politics. He delves into elections, public sentiment, demographic shifts, and polling trends. With a keen eye for detail, Reevell provides insightful commentary on the dynamics shaping the political landscape.