Health Care Question - Scalia a likely 5th vote in favor?

[Miguel Schor]

I tend to agree with Howard that emphasizing ideology in a constitutional law class might well undermine the task of turning out good constitutional citizens.  I also think we should teach more than just the doctrine and include matters such as constitutional design, constitutional theory, and constitutional politics.   In the discussion of the constitutionality of the health care bill, for example, there has been a lot written about doctrine but very little about theory.   One could spin out a doctrinal reason why the health care bill isn't commerce; one could also spin out a theory why it is.  But it takes a theory to beat a theory.  We have had a theory on the table for the better part of a century which is that the Court defers to the elected branches when it comes to social welfare legislation.  So what theory beats democracy when it comes to the constitutionality of the health care bill?  Miguel

On Mar 23, 2010, at 8:55 AM, Howard Schweber wrote:

> 
> Eric writes:
> 
> I sincerely wonder which side of the coin (values or doctrine) we should 
> be emphasizing with our students and our scholarship (accepting students 
> must learn doctrine for bar exam and talking the talk purposes).  I 
> promise not to mention this "values" things again (at least for  while).
> 
> 
> 
> This comes up quite often, of course.  So I'll toss in two cents.
> 
> It all depends on what we conceive to be our mission as teachers.  If 
> our mission is to make students better prognosticators of individual 
> justices' likely decisions, then the attitudinal model is undoubtedly 
> useful.  If our mission is to teach our students the conceptual language 
> that is used in this country to debate constitutional questions in 
> courts, then the doctrine is not quite so epiphenomenal as all that, 
> particularly if we teach it with a critical eye (as I am sure we all do, 
> although I am equally sure that we critique the reasoning from varied 
> perspectives).  And if we think that some part of our mission is to try 
> to educate our students to be good constitutional citizens -- that is, 
> if there is an element of civic aspiration involved in educating 
> citizens about their constitution and the work of institutions that 
> employ it -- then we might worry that teaching a focus on judges' 
> "values" in the sense that Eric uses the term breeds a cheap and easy 
> cynicism.  We might even worry about what attitudes such teaching breeds 
> among our nation's lawyers.
> 
> Howard Schweber
> Dept. of Poli Sci
> UW-Madison
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