Peter Berkowitz writes that “despite the lip service they pay to liberal education, our leading universities can’t be bothered to require students to study The Federalist [the two volumes of 85 essays by John Jay, James Madison and Alexander Hamilton] — or, worse, they oppose such requirements on moral, political or pedagogical grounds. Small wonder it took so long for progressives to realize that arguments about the constitutionality of ObamaCare are indeed serious.” In particular, he notes that elite law schools “do not require their students to read, let alone master, The Federalist’s major ideas and main lines of thought.”
The observation about law schools caught my eye. Even some decades ago my law professors would have thought it preposterous to teach “The Federalist” in a constitutional law class. In an undergraduate class on the post-Revolutionary America, perhaps. But in law school? It would never have crossed those professors’ minds.
As Berkowitz notes, this disinterest can be attributed in part to the fetish with the so-called “living Constitution that grows and develops with society’s evolving norms and exigencies.” I’ll add a couple thoughts to that insight.
The first has to do with the transformation of law schools from intellectual institutions to professional trade schools. Especially with the astronomically high tuition at most law schools, the emphasis, by necessity, is on preparing students for the practice of the law. The shift from the “study of the law” to the “study of how to practice the law” is pronounced and evidenced by the plethora of “clinics” in various aspects of the law. In such an environment, careful study of “The Federalist” would be a luxury students literally cannot afford. How often does “The Federalist” come up when you are a bankruptcy attorney? Classes in legal research or in copyright law or environmental law are now “essential” depending on students’ career ambitions. “The Federalist”? Not so much.
Second, law schools have given way to the notion that the Constitution is whatever the Supreme Court says it is. In a sense this is true insofar as the principle of judicial review has been concretized and the other branches assent to the courts’ decisions. But the idea that the Constitution has objective meaning that can be ascertained, in part by studying works like “The Federalist,” is still resisted by the vast majority of elite law school faculty. Even weirder from faculty members’ vantage point is the idea that you can thereby assess whether the Supreme Court got a case “right” or “wrong.” That sort of assessment, using the Constitution, its text and its meaning as the touchstone for judicial interpretation is not in fashion, and hasn’t been for decades now, at elite law schools. Students study precedent and view newer decisions as either departures from or natural consequences of earlier cases. But assess that a decision, and maybe a great number before that, are just plain wrong because they misunderstood an aspect of the Framers’ intent or the structure of the Constitution? Perish the thought.
Berkowitz is right that “so many of our leading opinion formers and policy makers seem to come unhinged when they encounter constitutional arguments apparently foreign to them but well-rooted in constitutional text, structure and history.” The reason in large part is the defect in legal and collegiate education, and the mindset behind the indifference to seminal documents that reveal the ingenious and enduring structure of our Constitution.