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The Crisis in Teaching Constitutional Law

NWRatCon

NWRatCon

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The Crisis in Teaching Constitutional Law (Opinion, NYT)​

Gift article

Notwithstanding the headline and dire content of this piece - with which I agree wholeheartedly - I was buoyed by one thought: at least I am not alone.

Over the latter half of my career, I, too, have been dismayed by the annual ritual of seeing the historic principles of constitutional interpretation jettisoned in field after field. I had wondered how my professors navigate a world of such naked partisanship where the Court dispenses, willy-nilly, with any legal conception that stands in the way of their political goal. Now I have an answer: many do not, and the rest are as bewildered as I.

"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."
 
The self delusion and bubble mentality of the left never fails to impress.
 
NWRatCon said:

The Crisis in Teaching Constitutional Law (Opinion, NYT)​

Gift article

Notwithstanding the headline and dire content of this piece - with which I agree wholeheartedly - I was buoyed by one thought: at least I am not alone.

Over the latter half of my career, I, too, have been dismayed by the annual ritual of seeing the historic principles of constitutional interpretation jettisoned in field after field. I had wondered how my professors navigate a world of such naked partisanship where the Court dispenses, willy-nilly, with any legal conception that stands in the way of their political goal. Now I have an answer: many do not, and the rest are as bewildered as I.

"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."
Click to expand...
You raise a good point. I took my course back in the '80s and I'm wondering if I took it again today, at the same university (doable as an audit), how the coursework has changed, if at all?
 
NWRatCon said:

The Crisis in Teaching Constitutional Law (Opinion, NYT)​

Gift article

Notwithstanding the headline and dire content of this piece - with which I agree wholeheartedly - I was buoyed by one thought: at least I am not alone.

Over the latter half of my career, I, too, have been dismayed by the annual ritual of seeing the historic principles of constitutional interpretation jettisoned in field after field. I had wondered how my professors navigate a world of such naked partisanship where the Court dispenses, willy-nilly, with any legal conception that stands in the way of their political goal. Now I have an answer: many do not, and the rest are as bewildered as I.

"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."
Click to expand...
No-------the CRISIS is the lack of participation in elections that causes less qualified persons to fill courts. The people WE elect chose these bozos
 
I'm pretty sure I still have a few of the books from my Constitutional law classes floating around here. Including the 8" thick one packed with SCOTUS cases. Might as well have used it as a doorstop considering precedent no longer matters with this SCOTUS.
 
poppopfox said:
You raise a good point. I took my course back in the '80s and I'm wondering if I took it again today, at the same university (doable as an audit), how the coursework has changed, if at all?
Click to expand...
I simply can't imagine. That's why this article struck such a chord.
 
NWRatCon said:

The Crisis in Teaching Constitutional Law (Opinion, NYT)​

Gift article

Notwithstanding the headline and dire content of this piece - with which I agree wholeheartedly - I was buoyed by one thought: at least I am not alone.

Over the latter half of my career, I, too, have been dismayed by the annual ritual of seeing the historic principles of constitutional interpretation jettisoned in field after field. I had wondered how my professors navigate a world of such naked partisanship where the Court dispenses, willy-nilly, with any legal conception that stands in the way of their political goal. Now I have an answer: many do not, and the rest are as bewildered as I.

"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."
Click to expand...
Well, I wonder which decisions by the court make you come to your conclusion?
 
Some of the Cases that overturned previous precedents. Who got it right?
West Coast Hotel Company v. Parrish (1937). In a 5-4 decision, the Hughes court overturned a decision from the previous year, now stating that the establishment of minimum wages for women was constitutional. The decision was seen as ending the court’s Lochner era.

West Virginia State Board of Education v. Barnette (1943). In a 6-to-3 decision, the Court overruled Minersville School District v. Gobitis (1940). Justice Robert Jackson’s majority opinion affirmed that forcing public school students to salute the American flag was unconstitutional. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,” Jackson famously wrote.

Brown v. Board of Education of Topeka (1954). A unanimous Warren Court (pictured above) decided that a separate but equal policy of educational facilities for racial minorities, consistent with Plessy v. Ferguson (1896), violated the 14th Amendment’s Equal Protection Clause.

Mapp v. Ohio (1961). Overruling Wolf v. Colorado (1949), the court said in a 6-3 decision that evidence gathered by authorities through searches and seizures that violated the Fourth Amendment could not be presented in a state court—otherwise known as the “exclusionary rule.”

Gideon v. Wainwright (1963). Justice Hugo Black’s unanimous opinion invalidated Betts v. Brady (1942) and required state courts to appoint attorneys for defendants who cannot afford to retain lawyers on their own.

Miranda v. Arizona (1966). In a 5-4 opinion, Chief Justice Earl Warren concluded that police violated Ernesto Miranda’s rights by not informing Miranda that he could remain silent and also ask for an attorney during interrogations. The ruling invalidates two court rulings from 1958: Crooker v. California (1958) and Cicenia v. Lagay (1958).

Katz v. United States (1967). In a 7-1 decision (Justice Thurgood Marshall did not take part in the case), the court determined that a man in a phone booth could not be wiretapped by authorities without a warrant from a judge. The decision overturned two prior Supreme Court decisions: Olmstead v. United States (1928) and Goldman v. United States (1942.)

Brandenburg v. Ohio (1969). The court decided that Ohio’s criminal syndicalism law, barring public speech calling for illegal activities, was unconstitutional on First and 14th Amendment grounds unless the speech incited “imminent lawless action.” The decision overruled Whitney v. California (1927).
 
Gregg v. Georgia (1976). In a 7-2 decision from Potter Stewart, the court ruled that Georgia’s capital punishment laws didn’t violate the Eighth and 14th Amendment’s prohibitions on cruel and unusual punishment. The court invalidated McGautha v. California (1971), a prior death-penalty case.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). A divided court invalidated parts of two prior decisions, Thornburgh and Akron I, as inconsistent with Roe v. Wade.

Atkins v. Virginia (2002). The Supreme Court held that executions of intellectually challenged criminals were “cruel and unusual punishments” barred by the Eighth Amendment. The decision overturned Penry v. Lynaugh (1989).

Lawrence v. Texas (2003). Justice Anthony M. Kennedy, in a 6-3 ruling, cited the Due Process Clause and invalidated a Texas law making it a crime for two persons of the same sex to engage in sexual conduct. The decision overturns Bowers v. Hardwick (1986).

Citizens United v. FEC (2010). By a 5-to-4 decision, Justice Anthony M. Kennedy writes for the majority and says the First Amendment did not permit the government to ban corporate funding of independent political broadcasts during election cycles. The decision overturned Austin v. Michigan Chamber of Commerce (1990) and parts of McConnell v. FEC (2003).

Obergefell v. Hodges (2015). In a 5-4 opinion, Justice Kennedy said the 14th Amendment’s Due Process Clause guaranteed the right to marry as a fundamental liberty that applied to couples regardless of their sex. The decision overruled a one-sentence ruling in Baker v. Nelson (1972).

South Dakota v. Wayfair (2018). In another 5-4 decision from Justice Kennedy, the court said sellers who engage in significant business within a state may be required to pay taxes, even if the business does not have a physical presence in the taxing state. The ruling overturned Quill Corp. v. North Dakota (1992).

Janus v. American Federation of State, County, and Municipal Employees (2018). In a 5-4 opinion from Justice Samuel Alito, the court said the state of Illinois violated the First Amendment by extracting agency fees from nonconsenting public-sector employees. The decision overturned Abood v. Detroit Bd. of Education (1977).
 
tshade said:
No-------the CRISIS is the lack of participation in elections that causes less qualified persons to fill courts. The people WE elect chose these bozos
Click to expand...
More thoughts from left field?

1710340897856.jpeg

P.S. there is no correlation between the number of people voting and the quality of politicians for whom these greater numbers vote.

You're right on one thing though - we elected them. But again, more "we" =/= better qualified "them" - but how that pertains to this thread's topic is anyone's guess.
 
Rich2018 said:
Whereas no-one is impressed by anything that the right has to offer.
Click to expand...
And by "no-one" you mean yourself and other people inside your bubble.
 
I have absolutely ZERO problem with blowing through a precedent, if that precedent was wrong.

No Supreme Court is bound by the decisions of the past, nor should it be.

Obviously, a future leftist court will almost certainly either greatly diminish or overturn the Heller/Bruen precedents.

Obviously, a future leftist court will overturn Dobbs, though hopefully they DON'T return to the Roe/Casey regime but instead base abortion rights on the implied right of privacy found in the Ninth Amendment.

No problem at all with blowing away precedent. It is the WHY that matters.
 
Safiel said:
I have absolutely ZERO problem with blowing through a precedent, if that precedent was wrong.

No Supreme Court is bound by the decisions of the past, nor should it be.

Obviously, a future leftist court will almost certainly either greatly diminish or overturn the Heller/Bruen precedents.

Obviously, a future leftist court will overturn Dobbs, though hopefully they DON'T return to the Roe/Casey regime but instead base abortion rights on the implied right of privacy found in the Ninth Amendment.

No problem at all with blowing away precedent. It is the WHY that matters.
Click to expand...
That is a fundamental distinction that some people simply cannot grok.
 
Safiel said:
I have absolutely ZERO problem with blowing through a precedent, if that precedent was wrong.

No Supreme Court is bound by the decisions of the past, nor should it be.

Obviously, a future leftist court will almost certainly either greatly diminish or overturn the Heller/Bruen precedents.

Obviously, a future leftist court will overturn Dobbs, though hopefully they DON'T return to the Roe/Casey regime but instead base abortion rights on the implied right of privacy found in the Ninth Amendment.

No problem at all with blowing away precedent. It is the WHY that matters.
Click to expand...
Agreed. It is the Why that matters, and the why in recent USSC opinions seems more motivated by partisan loyalties than in judicial (unpartisan/unbiased) reasonings, imho.
 
Safiel said:
I have absolutely ZERO problem with blowing through a precedent, if that precedent was wrong.

No Supreme Court is bound by the decisions of the past, nor should it be.

Obviously, a future leftist court will almost certainly either greatly diminish or overturn the Heller/Bruen precedents.

Obviously, a future leftist court will overturn Dobbs, though hopefully they DON'T return to the Roe/Casey regime but instead base abortion rights on the implied right of privacy found in the Ninth Amendment.

No problem at all with blowing away precedent. It is the WHY that matters.
Click to expand...

Your scenario eliminates the rule of law and replaces it with the rule of judges.
 
j brown's body said:
Your scenario eliminates the rule of law and replaces it with the rule of judges.
Click to expand...

Not at all.

Why should a bad precedent stand.

Should Plessy have stood just because it is a so called "precedent."

Absolutely not.

Judges have a responsibility to clean up the errors of their predecessors.
 
tshade said:
You didn't even read my entire two sentence post.

Typical Trumper.
Click to expand...
Oh, I read them, both sentences; and with all due respect, it's obvious the one who's clueless about what you wrote is... you - hence my "thoughts from left field" which my post adequately explained.

I'd be glad to explain your post to you again, but I'm doubtful it'd do any good - you know, me being a "Trumper" and all (which btw, you got that wrong too - so at least you're batting 1000).
 
Safiel said:
Not at all.

Why should a bad precedent stand.

Should Plessy have stood just because it is a so called "precedent."

Absolutely not.

Judges have a responsibility to clean up the errors of their predecessors.
Click to expand...
Which is going to give the next principled court a lot of work to do.
 
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