Our perfect constiitution? What should we be teaching our students?

[Earl Maltz]

I have a dramatically different vision of our job in the classroom.  In my 
view, law school is nothing more than a professional school.  My job is not 
to raise the social consciousness of my students, or to equip them to 
engage in the great political and jurisprudential debates of our age.  It 
is to provide them with the technical skills necessary to competently and 
zealously represent their clients.  Period.  Thus, my class is focused 
narrowly on doctrine, while reminding my students that facts and politics 
plays a large role in shaping the decisions of the courts (particularly in 
constitutional law, and most particularly in the Supreme Court). High 
theory has little place in my classroom, and I try  hard (unsuccessfully at 
times) to refrain from giving my personal opinions on cases.

At 02:48 AM 11/6/2005 -0600, Sanford Levinson wrote:
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>I'd like to offer and extended riff on Malla's excellent question:  My 
>concern is that we (Americans, law professors, etc.) are too complacent 
>about the ostensible merits of our Constitution.  (My messages are coming 
>from <?xml:namespace prefix = st1 ns = 
>"urn:schemas-microsoft-com:office:smarttags" />Bellagio, Italy, where I 
>have just finished a manuscript, which will be published by Oxford, called 
>"The Iron Cage of the US Constitution."  It offers a full-scale critique 
>of the Constitution, in which I now have very little "faith.")  I think 
>there's lots in what Mark Graber has to say, for example (there always 
>is); there's lots in what Eugene has to say (there always is); and so on 
>through all the members of this list, whose seriousness and dedication I 
>cherish whether or not I agree with them/you.  But I fear that the subtext 
>of many of the postings ifs a version of the argument that ours is a 
>basically "perfect Constitution," in the sense that there's really nothing 
>drastically wrong with it.  I respectfully disagree.
>
>
>
>Some of what is wrong is only of "theoretical" interest, until it becomes 
>relevant:  Would anyone on this list defend the one-state/one-vote rule by 
>which the House will break a deadlock in the Electoral College?  Other 
>things, like the legal imperviousness of failed presidents to being forced 
>out of office unless, as with Nixon, everyone believes they're criminals, 
>are decidedly less theoretical.  Ditto on the problems attached to "life 
>tenure," which, as Tom Ginsburg points out in his valuable book on 
>judicial review in Asia, usually means, in other countries that have "life 
>tenure," service until 65 or 70.  Only in the US, I believe, has judicial 
>office become a feudal-like personal res, to be held until a Justice dies 
>or chooses to retire well into his/her 80s.  Most of these are obviously 
>controversial; I know that Mark disagrees with me about the demerits of 
>life tenure.  But I think that they are scarcely the subjects of 
>sufficient discussion among een the elite public, let alone the public at 
>large, or by our students.  I look forward next year to giving a 
>Constitution Day talk somewhere lacing into the Constitution, but I 
>strongly suspect that most such talks are in praise of it, which I think 
>is unfortunate.
>
>
>
>Frankly, I find the citation to Churchill's dictum on democracy 
>fatuous.  What he said made sense when the alternatives were communism or 
>fascism.  But what he said is almost completely meaningless if the debate 
>concerns exactly what democracy means or what political systems best 
>instantiate it.  One can say, truthfully I think, that "constitutionalism 
>is the worst system of government, except for all the others," if the 
>contrast terms are divine right monarchies, Hussein-like dictatorships, 
>and the like.  But if the issues is what constitutionial system best 
>captures what we think are the values of that constested notion called 
>"constitutionalism, then it is simply unhelpful, ato say the least, to 
>quote Churchill (as modified).  .
>
>
>
>So the question boils down to this, I think:  Is there ANYTHING we might 
>learn from the fact that most countries in the world--which by any fair 
>analysis are liberal democracies--have quite explicitly chosen quite 
>different schemes of constitutionalism from our own?  Is the ANYTHING we 
>might learn (and teach our students--thus Marla's question) from the fact 
>that the German and Spanish constitutions have apparently been far more 
>influential as models for post-1989 constitution drafters than our 
>own?  Is there anything we can learn from the fact that the two countries 
>whose "nation building" we celebrate and use as a model for what is 
>possible in Iraq--Germany and Japan--have constitutions that are quite 
>different from our own, even when the US influence was presumably at its 
>peak?
>
>
>
>The most attractive thing about our own Founding Generation, 
>intellectually, was that they were openly willing to read about what we 
>would today call comparative government and learn from what they read, as 
>well as the "lessons of experience."  They also included an amendment 
>clause, which, as it turns out, is, I think, one of the chief deficiencies 
>of the Conostitution because it is too stringent, but which, nonetheless, 
>also symbolizes the fact that they believed the Constitution might well be 
>found imperfect by future generations and, thus, subject to change.  They 
>even included a provision for a new convention.  And, for what it is 
>worth, it is also the case that they disdained being hemmed in by the 
>procedures set out by the Articles of Confederation.  In any event, my 
>fear is that we as a culture have forgotten what is most admirable about 
>the Founders and instead have become Blackstone-equivalents who simply 
>worship a Constitution that is, I believe, demonstrably deficient in many 
>respects.
>
>
>
>For what it is worth, I think the contemporary "left," such as it is, is 
>every bit as bad as anyone else, if not worse, since the preferred 
>approach to responding to such suggestions as flag-burning and 
>anti-gay-marriage amendments is often not to denounce them as bad ideas, 
>which they are, but rather to say that there is something awful about the 
>very idea of amending the Constitution at all (Kathleen Sullivan's 
>"amendmentitis" critique), which is a pernicious idea.  It is the right, 
>for better and worse, that is actually willing to suggest what they 
>believe to be needed changes (remember the "balanced budget amendment" in 
>the old days when the Republicans were the party of fiscal discipline?).
>
>
>
>Finally, to return once more to Marla's question, and to other posts of 
>mine, is it really desirable that law students, who, for better and very 
>much for worse, will disproportionately become the "leaders of tomorrow," 
>will graduate well trained in the debates over "levels of scrutiny" but 
>have almost literally no idea that the rest of the world has rejected much 
>of what is most basic about the Constitution with regard to the structures 
>it establishes?  (This is meant as a rhetorical question, but I fear it is 
>a real one, since one response is that our students as lawyers will have 
>to master the rhetorical gimmickry of levels of analysis whereas they will 
>not, as lawyers, ever have to have informed views about the virtues of 
>quasi-parliamentary systems as against our own fixed-term presidency.)
>
>
>
>sandy
>
><?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
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>----------
>From: conlawprof-bounces at lists.ucla.edu on behalf of Malla Pollack
>Sent: Sat 11/5/2005 5:38 PM
>To: RJLipkin at aol.com; VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
>Subject: demystifying the Constitution-- was RE: Controlling 
>Administrations you don't like
>
>Bobbys post raises a teaching issue on which I would appreciate the list 
>memberslearned insight.  How do you get students (usually unused to 
>critical thinking) to look at the US Constitution as a set of choice made 
>by men, as opposed to something too sacred to be disliked even in 
>details?  Or am I oddfor believing that halos are not helpful.
>
>
>
>Malla Pollack
>
>Professor, American Justice School of Law
>
>Visiting Univ. of Idaho, College of Law
>
>mpollack at uidaho.edu
>
>208-885-
>
>
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