On Monday, my constitutional law class will meet for the first time this semester, and I don't have the slightest idea what to tell the students about the subject we'll be discussing for the next 13 weeks.
I've taught the class before, and by now I know most of the canonical cases as well as I know my own phone number. My problem is that I'm no longer sure there's really a subject to teach.
I don't seem to be the only one confronting this problem. As Harvard Law School professor Lawrence Tribe recently observed: "Conflict over basic constitutional premises is today at a fever pitch. Ascertaining the text's meaning; the proper role and likely impact of treaty, international and foreign law; the relationships among constitutional law, constitutional culture and constitutional politics; what to make of things about which the Constitution is silent — all these, and more, are passionately contested, with little common ground from which to build agreement."
As a result, Tribe says he will not attempt to publish a revised version of his much-read treatise on constitutional law. And if Tribe, no shrinking violet, can no longer figure out how to write a treatise on constitutional law, where does that leave those of us lesser mortals who just want to teach the topic in a way that is honest, useful and fair?
Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals in Chicago, who also lectures at the University of Chicago Law School, joined the fray last year, writing that most constitutional questions "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms…. It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly."
What are your thoughts?
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