Even the “smartest” and best educated in the country have been consumed by the moment’s heat, and they’re so filled with feelings that they’re changing their syllabus.
President Trump is transforming the study of constitutional law.
The nation’s law professors have spent the summer revising their courses to take account of a president who generates fresh constitutional questions by the tweet. When classes start in the coming weeks, law students will be studying more than dusty doctrine. They will also be considering an array of pressing questions.
When is firing a subordinate to thwart an investigation obstruction of justice? Can a sitting president be indicted? Can the president pardon himself? May he accept financial benefits from foreign governments? Are his campaign statements evidence of religious bias? Must Congress authorize a nuclear strike against North Korea?
These would all make for cool and fascinating blog posts, musing about one-off questions that have miraculously eluded deep scholarly scrutiny over the past couple centuries. We could argue. We could thrust, parry, riposte, all without every reaching any actual decision since there is no settled ruling upon which to rest. Oh, such fun!
But the “smartest” are deeply taken with the things they feel are critically important and fascinating at any given moment. And if that wasn’t enough, they feel the need to tell their captive audience of young, bright-eyed, bushy-tailed and unduly passionate students their most brilliant theories about these critically important issues.
“Teaching the Constitution has never felt more urgent, like unraveling a mix of ‘Apocalypse Now’ and ‘Alice in Wonderland,’ but with the highest possible stakes,” said Laurence H. Tribe, a law professor at Harvard and vocal critic of Mr. Trump, who also represents plaintiffs challenging foreign payments to Mr. Trump’s companies. Many law professors, including several quoted in this column, have signed briefs opposing Mr. Trump’s actions.
Before reaching Larry’s extreme urgency, it should be noted that rumors of his intimate involvement with Louise Mensch are completely unfounded, and there is no confirmation that he was observed whispering tender endearments to her over a fine Mountain Dew, glistening in the neon candlelight of Tasty Burger.
There is much to learn about the Constitution, and for the students assigned to Tribe’s class, it’s reasonable to expect them to learn it. But emoluments is not one. Due process? You bet. Equal protection? Sure. In fact, there’s more than enough to learn about Con Law to take up a couple years of school, law that stands a pretty decent chance of finding its way onto a lawyer’s plate during the course of a career. But emoluments?
Generations of law students have grappled with the same basic issues in their constitutional law classes: the separation of powers, federalism, the Bill of Rights, equal protection, due process. Mr. Trump, a one-man course in constitutional arcana, is supplementing that curriculum with some seldom-examined provisions of the Constitution.
Perhaps Larry Tribe can be forgiven, having suffered a breakdown alternately called Trump Derangement Syndrome or Losing His Shit. But as Adam Liptak points out, there is already a lengthy list of subjects one learns in 1L that actually serve a useful purpose to lawyers, and more importantly, their clients, in the practice of law. Even if you attended Harvard, judges and juries will expect you to show minimum competency.
Court: Counselor, what is your suppression argument?
Harvard Educated Lawyer: The evidence should be suppressed, your honor, but let me tell you about the failure of the 25th Amendment to provide an alternate means of declaring an election null and void, removing an illegitimate president and replacing him with …
Academics are having a field day, suddenly empowered to offer their utterly baseless and most deeply felt theories. Until Trump, they only got to tell them to each other during those faculty teas better known as circle jerks, where they fawned on each other’s civil tons, interrupted only occasionally but the dreaded, “that’s interesting.”
Now, everyone seems to care, to the extent that they are leading a revolution to undermine everything that ever was in law, with the limitation being that it will only apply to Trump because he’s awful and not at all Obama.
Legal scholars around the nation said the nation might soon decide whether its sacred founding charter was built to last.
That is “what’s different about teaching con law in the Trump era,” said Leah Litman, a law professor at the University of California, Irvine. It requires, she said, “acknowledging that much of what we consider settled beyond the capacity of lawyers to unsettle it may not be so settled after all.”
Any questions, class?
First, there is a practical reason: there is only a finite number of class hours. (We have only four hours to teach the entirety of structure and rights.)
Second, in the heat of the moment, it is hard to know what is important in the long term.
Of course, Josh could just ask Leah Litman, because she knows stuff and hates Trump almost as much as Larry Tribe, so she can surely be trusted.
There is a third reason for avoiding the current events model of constitutional law: it is much harder to teach cases that personally affect people.
Finally, there is a cost to focusing on the kinetic issues of the day: alienating large segments of the class.
Reasons three and four are related, obviously, but when you’re filled with passion, isn’t this what it’s really all about?