Today's New York Times has a piece by Jesse Wegman on "The Crisis in Teaching Constitutional Law" that reflects the kinds of sentiments I've heard at conferences, lunch tables, and especially on social media—that it is hard to teach constitutional law today because the Supreme Court is doing such lawless stuff.
"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."
And so on. I have heard many others voice these concerns, and I worry that they demonstrate a lack of perspective that will dis-serve our students.
