The Crisis in Teaching Constitutional Theology (lee j. strang, 3/20/24, Law & Liberty)

I was surprised by Jesse Wegman’s essay, “The Crisis in Teaching Constitutional Law,” which purports to show that a newly “politicized” Supreme Court has exploded the possibility of teaching the foundation of our legal system. I hadn’t experienced a crisis teaching constitutional law and, to be honest, I was also a little embarrassed for my profession by some of the over-heated rhetoric by faculty Wegman interviewed. One of the interviewees even succumbed to sobbing: “While I was working on my syllabus for this course, I literally burst into tears.” The reason? “I couldn’t figure out how any of this makes sense.”

I haven’t had that problem; I haven’t cried even once while writing my syllabi, and it’s not for lack of teaching constitutional law. I have been teaching US constitutional law, constitutional interpretation, and Ohio constitutional law, since 2005, and I co-edit a casebook Federal Constitutional Law, so I’m familiar with what it takes to teach constitutional law. My primary pedagogical goal is to give my students the knowledge and tools they need to effectively advocate on their clients’ behalf. This body of knowledge includes the key cases and the doctrines that govern discrete areas of law, and the tools include the conventional building blocks of constitutional interpretation, such as textual, structural, and precedential arguments. I continue to do so four times a week this semester without any significant difficulty, and certainly without any greater difficulty compared to twenty years ago when I began teaching. […]

Wegman’s evidence supporting the purported crisis is exceedingly thin. At one point, Wegman complains that “these justices have moved quickly to upend decades of established precedent.” It’s not clear if Wegman is lamenting both the alacrity and the overruling of precedent, but even if it is both, it’s hard to take this “crisis” seriously, at least in context of the broad sweep of American history. Anyone who has taught one of the Warren Court’s many areas of doctrinal innovation knows that today’s Court is no more innovative than prior Courts. Moreover, as someone whose goal it is to teach all cases—including those challenging ones authored by Chief Justice Warren—charitably, I can confirm that any difficulty in teaching Bruen, Students for Fair Admissions, and the others Wegman complains of pales in comparison to the herculean task of painting Miranda v. Arizona (1966), as a good-faith interpretation of the Fifth Amendment.