Interesting article in the NY Times about teaching constitutional law in an era when the Supreme Court is ever more willing to reject precedent. One law professor says,
One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means. And the degree of difficulty of that proposition has never been higher.
Another:
While I was working on my syllabus for this course, I literally burst into tears. 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.
This being a NY Times article, the onus is all loaded onto the current conservative court, but I think that is unfair. I strongly support abortion and gay marriage, but I can't find either one in the Constitution. If I wanted to put a non-political interpretation on all of this, I would say that as the Constitution gets older and older it is less and less able to provide guidance on our issues.
And I suspect that is true. Honestly, though, I find the notion that there was ever anything apolitical about interpreting the Constution ridiculous. The Constitution says nothing about race, but somehow past generations of justices found a lot of race in it. The Court upheld the internment of Japanese Americans and flip-flopped in a big way on Federal regulation of business activity. I can't see any past golden age of justice in America, or of respect for the Supreme Court.
So if there was really some kind of consensus judicial philosophy in the Cold War era, the consensus was simply that pushing political agendas too hard would be bad politics. That no longer seems to be true; now most Americans are perfectly happy to see the Court ram their political preferences down their opponents' throats, so that is what the justices are doing.
And while law professors are torn about all of this, law students are not:
I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand and he asks, ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.
Others I spoke to agreed with this assessment. “We’re witnessing a transformation in the New Deal consensus. . . . Our students are increasingly rejecting it, progressives and conservatives. They are less judicial supremacists. They are more willing to question courts.” He added, “We have to figure out what the new world is going to look like. I don’t know.”
This is the challenge we face as a nation: holding it all together as the arguments get ever angrier and less constrained.
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“We’re witnessing a transformation in the New Deal consensus. . . . Our students are increasingly rejecting it, progressives and conservatives. They are less judicial supremacists. They are more willing to question courts.” He added, “We have to figure out what the new world is going to look like. I don’t know.”
The so-called "New Deal consensus" was entirely predicated on a sort of "gentleman's agreement" in politics, wherein everyone went along with a bunch of unwritten rules, despite there being no actual enforcement mechanisms to ensure they were followed.
If we're so concerned about loss of trust in the courts over the erosion of these unwritten rules... then how about we make actual WRITTEN rules with clear enforcement mechanisms?
If the smooth operation of our courts is dependent on the good faith of the actors involved, then how about we actually legally require those involved to act in good faith, or face penalties for doing otherwise?
This isn't some radical new concept - we already do this is other areas of society. We have fiduciary agreements in all sorts of fields - why not in government?
Isn't the concept of "checks and balances" central to American values? If our current "gentleman's agreement" isn't sufficient to check and balance the different factions within our modern political sphere, then why don't we make adjustments and actually codify things formally?
Our members of Congress are behaving badly and getting away with it? Then clearly we need some new rules, and someone to enforce them OTHER than the members of Congress themselves.
Our supreme court justices are behaving badly and getting away with it? Then maybe they shouldn't be the only ones who can police their own behavior! If the court is unwilling or unable to take punitive action against its own members who are engaging in scandalous behaviors, then clearly someone ELSE needs to be in charge of policing them.
I've made this point in the past, but in the Venetian Republic, if someone was in a position of great national trust - like an admiral - and they broke that trust, or otherwise performed in a way that was harmful to the nation, they were dragged away in chains, to be stripped of all power and banished from public life - if not just outright locked in a hole for the rest of their life.
Trump spurred on an angry mob to attack the Capitol, with intent to kidnap or kill members of Congress, and to forcibly falsify the election certification. There is no ambiguity about that - it is plain, simple fact. He should have been immediately hung as a traitor - or at the very least, arrested, sentenced, and locked away for life.
But for some reason, one half of the country openly moved to protect him in the name of Factionalist politics, despite his unquestionable malfeasance, and the other half were too timid and feckless to press the issue and demand the unholding of not just moral principle, but written law.
The "gentleman's agreement" has become utterly corrupted. Neither side is holding up their end of the supposed bargain. It's long past time for actual rules, and for those who break them to be ousted from power.
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