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The Founders' Constitution:

This year, George Mason Law School inaugurated a new, required first-year course, The Founders' Constitution, which serves as a prerequisite to the required course in Constitutional Law. A new website for the course explains:

Law school curricular development requires making guesses about the future of legal practice, but that should not mean constantly chasing the latest trend. Too much focus on the latest hot specialty runs the risk of short-changing students' appreciation of the permanent things in our legal culture. George Mason's faculty considers it crucial for students to know something about the Constitution and its creation before they attempt to understand what the Supreme Court has had to say about it. Supreme Court case law, not the Constitution itself, is what Constitutional Law courses are conventionally about.

The Founders' Constitution course will require students to read a large number of important original legal sources familiar to the founding generation, ranging from Magna Carta and the English Bill of Rights to the Federalist (and Anti-Federalist) Papers, along with constitutional debates at the Philadelphia Convention and in the First Congress. While a few law schools offer narrowly-focused elective classes dealing with constitutional history, none has a comprehensive, required course comparable to The Founders' Constitution. The course, offered for the first time in spring 2008, is a prerequisite to Constitutional Law.

Judges come and go, along with elected officials, but the Constitution endures. It is essential that future lawyers have a fundamental understanding of this central governing document.

More information about the course, including a model syllabus, is available at its website.

Hartley (mail):
It's a shame you have to go to law school to take this - it ought to be required for anyone running for public office..
2.13.2008 6:55pm
Pon Raul:
Bravo!!!

Was is Scalia that commented that one problem with the law is that law schools teach common law first? Is this class a thoughful reaction?
2.13.2008 6:56pm
Pon Raul:
Hartley,

Hell, it should be a required High School course.
2.13.2008 6:57pm
Wahoowa:
This is an excellent innovation(?) in law school curriculum that should be adopted by all law schools across the nation post-haste.

It's also an evil Federalist Society plot to indoctrinate all our impressionable 1Ls with things like history and original intent/understanding. Oooooh, those sneaky originalists! [/sarcasm]
2.13.2008 7:00pm
Cornellian (mail):
I think it's an excellent idea and it will give students a much better appreciation of the difficult choices the Court has faced over the course of its history.
2.13.2008 7:00pm
Dave N (mail):
I agree it is an excellent idea--and I second the recommendation that this class be taught at all law schools. It certainly provides a better grounding in the Constitution than most law students have (or receive) in other classes--including ConLaw.
2.13.2008 7:03pm
JohnO (mail):
When I was a 3L, I wrote a paper on he Emoluments Clause and had to read a lot of Founding-era documents, such as large portions of Farrand's reports on the Constitutional Convention, as well as the Federalist and Anti-Federalist Papers. The project was extremely worthwhile in gaining an understanding of the thought processes behind the Constitution. Sounds like GMU's courts would be much like the project I went through to understand the history behind the provision I was writing about.
2.13.2008 7:04pm
OrinKerr:
David,

What does this new class replace? Is it taught instead of contracts or torts, or something like that? Or is it in addition to the other courses?
2.13.2008 7:09pm
Elliot Reed (mail):
I understand why law schools want to follow Harvard's [1] example by adding more mandatory 1L courses that have little to no relevance to most lawyers' practices, but will sound sexy to law school applicants. They help raise the school's all-important U.S. News ranking and let the faculty get away from teaching boring subjects like contracts. But increasing the school's prestige at the expense of its actual quality of education is hard to condone.

[1] There are some good things about Harvard's reforms: legislation and regulation are a lot more important than, say, property. But there's no way adding public international law or the hopelessly fuzzy-sounding "problems and theories" to the 1L curriculum was a step forwards.
2.13.2008 7:10pm
DavidBernstein (mail):
Orin, room for this class was made by reducing required Constitutional Law from 6 credits to 4. No other courses were affected.
2.13.2008 7:14pm
alias:
Interesting. The idea of taking a course like this before con law seems great, but making it a requirement seems a little heavy-handed.

I predict that Yale's response will be to make a course on the Sociology of Victims of the White Male Establishment a required prerequisite to con law.
2.13.2008 7:18pm
shush!:
David, obviously, the course does not replace contracts or torts, but like Orin, I'm wondering how it fits in. I'm a GMUSL grad. I remember we had a required "Law &Economics" course the first semester. I can't remember a similar required course the 2nd semester. ... So, please explain: How will the course be fitting in?

AND, I'd say it's a good idea! I remember surviving Constitutional Law, but never really studying the Constitution. Not all law students were Political Theory majors in undergrad.
2.13.2008 7:19pm
Benjamin P. Hayek (mail) (www):
Wow. I sure wish I had been forced to take a class like this at law school - or at least been given the opportunity to take it as an elective. This is definitely my "ray of hope" for the day - if not the year.
2.13.2008 7:20pm
shush!:
To answer my own question, here's how GMUSL fits it into the 1st year:

1st Semester:
legal research/writing
Torts
Contracts I
Property
Econ &Law

2nd Semester:
legal research/writing
Contracts II
Civ Pro
Crim. Law
"Founders' Constitution"

As I recall, we had two semesters of Torts, but GMUSL isn't intending to produce many "ambulance chasers." :-)
2.13.2008 7:31pm
guest:
This sounds like an OK course if you are interested in history and Con Law. That said, I dont see why it should be a required course. This sounds like history, not law.
2.13.2008 7:33pm
AD:
The course is a great idea but I can't disagree more with the "required" nature. Like Orin, I'm confused about what it replaces. Does the standard Constitutional Law course now have less classroom hours? There's already too much material in most Con Law courses.

Sounds like a great elective but a relatively poor 1L requirement.
2.13.2008 7:34pm
DavidBernstein (mail):
Obviously, generations of law students have done without the course. But all new lawyers take an oath to uphold the Constitution, and this course is likely to give our grads a significant advantage over others in knowing what that oath entails (unless you think that "the Constitution" and whatever 5 Justices happened to say about it most recently are one and the same).
2.13.2008 7:35pm
Clayton E. Cramer (mail) (www):

Obviously, generations of law students have done without the course.
And look at the mess that has resulted.
2.13.2008 7:40pm
bla bla (mail):
Awesome class.
2.13.2008 7:41pm
OrinKerr:
Obviously, generations of law students have done without the course. But all new lawyers take an oath to uphold the Constitution, and this course is likely to give our grads a significant advantage over others in knowing what that oath entails (unless you think that "the Constitution" and whatever 5 Justices happened to say about it most recently are one and the same).

Although I appreciate this sort of public-spiritness, this seems like a weak argument in favor of the course. Questions of constitutional structure don't come up often in legal practice. And presumably you wouldn't want a Mason graduate to enter state government and proceed to violate people's right to free speech and their right against unreasonable searches and seizures on the theory that the "real" Bill of Rights only applies to the federal government, not the states, and that the "incorporation" of the Bill of Rights was just whatever 5 Justices happen to think. You could certainly believe this, but don't see how embracing such a view would give Mason graduates a significant advantage in any practical sense. (Unless a state government was actively looking to hire graduates who did not feel bound by Constitutional law doctrine, which seems unlikely.)

I would think that from the law school's perspective, the real benefit is branding: If you're going to carve out a niche as a school that is different, you actually need to make sure the school is different. It's pretty easy to take 2 credits of the con law course that would have been spent on similar materials and categorize it as a separate course, and I would think this helps Mason sell the brand.

I should add that the course sounds quite interesting; having benefited greatly from the insights of Nelson Lund at a recent Liberty Fund conference on these same topics just a few weeks ago, I would think it would be particularly lucky to take the course with him.
2.13.2008 7:50pm
Student:

This sounds like an OK course if you are interested in history and Con Law. That said, I dont see why it should be a required course. This sounds like history, not law.


Yeah that constitution....not a bit of law there. In fairness though, given some of the court's decisions it probably is accurate to describe the actual text of the constitution as "history" rather than law. That whole due process thing seems to be pretty much "history" with respect to property. Hmmmm.....the second amendment..."history"? Or "law"?
2.13.2008 7:50pm
guest:

Yeah that constitution....not a bit of law there. In fairness though, given some of the court's decisions it probably is accurate to describe the actual text of the constitution as "history" rather than law. That whole due process thing seems to be pretty much "history" with respect to property. Hmmmm.....the second amendment..."history"? Or "law"?

The Federalist Papers and the debates at the Constitutional Convention are not law. The Magna Carta and the English Bill of Rights are not American law. They are legal history.
2.13.2008 7:58pm
Oren:
But all new lawyers take an oath to uphold the Constitution, and this course is likely to give our grads a significant advantage over others in knowing what that oath entails
Unless those lawyers believe that the meaning of the Constitution changes in time, in which case they will know what the oath would have entailed 200 years ago.
2.13.2008 8:00pm
Steph (mail):
You say the Magna Charta and English Bill of Rights are not American Law. I beg to differ. They could be pled and are being argued before the high court as we write. See the briefs in DC v Heller
2.13.2008 8:08pm
davidbernstein (mail):
Orin,

I should note that this is my idiosyncratic rationale for why this is not "just" a history course, not an "official" or unofficial George Mason rationale for the course, which I had no part in planning or designing.

So, again with the caveat that I speak only for myself, while it's true that "questions of constitutional structure don't come up often in legal practice," for most attorneys constitutional questions rarely if ever arise at all in practice. So why is constitutional law on the bar exam, and why is it required everywhere, except for the sense that all lawyers should know it as part of their oath as public officers of a sort, sworn to uphold the Constitution?

Also, my point was not that the USSC's decisions are not "the law", but that they are subject to shifting political and intellectual winds, and the vagaries of political appointments to the Court whereas the text and history of the Constitution are what they are, and will always inform constitutional debate in any event.

And contrary to your state legislator example, which would seem to violate the Supremacy Clause, there is often plenty of room for independent constitutional decisionmaking without conflict with the USSC. Consider that the USSC has basically abdicated its responsiblity to enforce the General Welfare Clause and Commerce Clause, and left it to Congress to exercise it judgment in these areas. Just because the Court ALLOWS Congress to pass legislation that would seem to violate these clauses doesn't mean that Congress is REQUIRED to. And what if a state legislator decides that regulatory takings deserve constitutional protection, even if the Court says they don't? Or that all interrogations should be videotaped to comply with due process, even if the Court hasn't required that? Not to mention that, e.g., prosecutors (such as by withholding favorable evidence to the defense) or police officers can somteimes engage in various unconstitutional tactics without real fear of being sued or even discovered; it's useful to have law students think about the Constitution as something beyond court decisions that may not ever be applied to them, no?
2.13.2008 8:16pm
Justin (mail):
I feel like this should be an elective (and am somewhat concerned that this may be used as an excuse for indoctrination, but certainly that is not the only way the class could be taught). Perhaps as one of a few "must pick one" electives, a la Columbia Law. Same with law and econ - I'm not saying that the curriculum is "law school presented by the Federalist Society" but certainly if the federalist society had to create a first year curriculum for conservatives....

I assume a regular Con Law class is taught in the 2nd year - I personally think that's a bit late in the game to be teaching building blocks cases, but c'est la vie.

I'm also disappointed that if you're going to require more ephermal classes as requirements, that Legislation did not make the list. Most of what lawyers do this day is read and interpret statutes, and *contrary* to what some es may think, it's not as easy as simple literacy.
2.13.2008 8:18pm
OrinKerr:
Steph,

It seems to me that "guest" is correct. These sources are not considered American law. They are historical precedents that can be argued to be relevant to the construction of American law. The two are different.
2.13.2008 8:19pm
davidbernstein (mail):
Unless those lawyers believe that the meaning of the Constitution changes in time, in which case they will know what the oath would have entailed 200 years ago.
How can you "believe" that in any well thought out way, unless you have some grounding in the origins of the document itself? If one understands the origins and the history of the Constitution and then believes that it was meant to be or should be interpreted to be a "living" document, more power to you.
2.13.2008 8:20pm
OrinKerr:
David writes:
So why is constitutional law on the bar exam, and why is it required everywhere, except for the sense that all lawyers should know it as part of their oath as public officers of a sort, sworn to uphold the Constitution?
I assume that is the case because con law issues can come up often in practice. It may also reflect the interests of the academic class and the self-perception of lawyers.
And contrary to your state legislator example, which would seem to violate the Supremacy Clause, there is often plenty of room for independent constitutional decisionmaking without conflict with the USSC.
I don't understand why the example would violate the Supremacy Clause. Are you saying that the law is whatever 5 Justices think it is? I thought your point was that this is wrong. Also, nothing I said questions that there is room for independent constitutional decisionmaking.
it's useful to have law students think about the Constitution as something beyond court decisions that may not ever be applied to them, no?
I don't know of any kind of thought that can't be useful. But the 1L curriculum is a zero-sum game: Every day on something new means taking out a day of material that was there before. So the costs and benefits really depend on the specifics of what you're not teaching mason students to free up the time to attempt to teach them to think this way about the Constitution.
2.13.2008 8:28pm
Just Saying:
The overwhelming majority of lawyers will spend their entire career without bumping up against constitutional law, except in the context of minimum contacts and personal jurisdiction. Why require a course that is so distant from the actual practice of lawyer for the vast majority of lawyers? Why do law schools insist on the theoretical over the practical?
2.13.2008 8:38pm
Elliot Reed (mail):
But all new lawyers take an oath to uphold the Constitution, and this course is likely to give our grads a significant advantage over others in knowing what that oath entails
Unless those lawyers believe that the meaning of the Constitution changes in time, in which case they will know what the oath would have entailed 200 years ago.
Plus the document has been amended 15 times since then. And a good thing too, since the Founders' Constitution was an agreement with death and a covenant with hell.
2.13.2008 8:38pm
PW:
As a current law student, I would suggest that GMU make the course mandatory, but not put it in the first year. The documents that are part of the course are going to turn 1L minds into mush.
2.13.2008 8:40pm
Redlands (mail):
Good for George Mason.
2.13.2008 8:44pm
davidbernstein (mail):
Are you saying that the law is whatever 5 Justices think it is? I thought your point was that this is wrong.
No, I not only didn't say this, I just wrote, "my point was not that the USSC's decisions are not 'the law.'" But is the Constitution what five Justices say it is? Surely not. Otherwise, how could it be that 5 new Justices could change "the Constitution" the following term?

As for the 1L curriculum, again all we deleted from our required courses was 2 credits out of 6 for the regular Con Law course, which was 2 credits more than most law schools spend, anyway. It seems to me that it just replaces the random elective that most law schools provide for in the first year. We do push off the regular required Con Law class until 2nd year, but we've always done that.
2.13.2008 8:46pm
Elliot Reed (mail):
Just Saying: I completely agree. Even the regular Con Law course strikes me as pretty borderline in terms of its actual relationship to legal practice, except that it's on the bar exam for some reason.
2.13.2008 8:47pm
Just Saying:
So why is constitutional law on the bar exam, and why is it required everywhere, except for the sense that all lawyers should know it as part of their oath as public officers of a sort, sworn to uphold the Constitution?

Long of things are taught in law school and on the bar exam simply because of tradition. Surely you wouldn't attach the same importance to the Rule Against Perpetuities?

As for it being in the oath, it's empty verbiage. It's not possible to disbar a lawyer for failing to uphold the constitution, is it?
2.13.2008 8:49pm
Sean M:
How is this class graded? P/F?

Three hour issue spotter?
2.13.2008 8:50pm
David Malmstrom (mail):
The course replaces Professional Responsibility (last year all 1Ls had PR) - there is a 6 credit requirement for Con Law but that is for your 2L - Econ is still a requirement
2.13.2008 8:53pm
Rab01:
Interesting enough course material. I don't see why, however, it should be treated as a completely separate course rather than incorporated into the Con Law class. I'm sure it makes a bigger splash to announce a new course than to announce a modification to an old one but treating it as separate from constitutional law risks either stigmatizing or overemphasizing the subject. If the Law School believes this material is necessary to constitutional interpretation, it should be part of the Con Law class.

Personally, I think that taking away one third of the Con Law credits to cover the history leading up to its drafting is a bit much but my law school only gave us 4 credits of Con Law anyway so who am I to judge?
2.13.2008 8:54pm
OrinKerr:
No, I not only didn't say this, I just wrote, "my point was not that the USSC's decisions are not 'the law.'" But is the Constitution what five Justices say it is? Surely not. Otherwise, how could it be that 5 new Justices could change "the Constitution" the following term?

Sorry, David, I was just trying to figure out if a state official who swore only to uphold the original public meaning of the Constitution would feel justified in ignoring Supreme Court precedents. I didn't understand why you though the Supremacy Clause was relevant. I gather from what you say that your view is that the official should in effect follow both the original Constitution (due to the oath) and also the modern interpretations of it (under the Supremacy clause).
2.13.2008 9:03pm
Oren:
How can you "believe" that in any well thought out way, unless you have some grounding in the origins of the document itself?
I think a pretty cursory examination of the document reveals a litany of subjective terms who meaning was intended to be judged against contemporary society.
If one understands the origins and the history of the Constitution and then believes that it was meant to be or should be interpreted to be a "living" document, more power to you.
Thank you.
2.13.2008 9:03pm
CJColucci:
Interesting question up above. What do you test on? What does the final look like? While this is a potentially interesting course (I'd have jumped on it as a nice, soft option), there's a real danger that it could turn into a how-to on "law office history."
2.13.2008 9:04pm
GMU 2L:
I just missed this course by one year, and I am sad that I did. I would have liked this as a "primer" for con law; I for one am glad con law is taught during 2L year at Mason. I think most of us would have missed the forest for the trees in such a complicated subject, even during second semester of 1L year.
Now, Prof. B-- what can you do for us about the 2.8-2.9 curve? Employers have told me honestly that it DOES hurt GMU students. The transcripts just look bad when compared to other schools' (GW's for instance) 3.3ish means. Not every employer has the time or cares to compare each school's grading system. We need you to help give us a boost, please!
2.13.2008 9:08pm
Harvey Mosley (mail):
IANAL or in school, but I would love to take this class.
2.13.2008 9:09pm
Another Roger:
So why is constitutional law on the bar exam, and why is it required everywhere, except for the sense that all lawyers should know it as part of their oath as public officers of a sort, sworn to uphold the Constitution?

It's not required everywhere. Chicago doesn't require any constitutional law. I understand that it is not alone.
2.13.2008 9:18pm
Mr. Liberal:
I think the course is an excellent idea.

However, GMU is a little out of its mind when it asserts that this course is somehow unique. At my law school, I took courses covering the same material.
2.13.2008 9:36pm
RMCACE (mail):
Another course that students have to over pay for yet will likely never have an impact on their practices. It should be offered if it interests the students but not required.
2.13.2008 9:41pm
Mr. Liberal:

Another course that students have to over pay for yet will likely never have an impact on their practices. It should be offered if it interests the students but not required.


This is ridiculous. Much of what you learn in law school is not going to be used in your practice. If you end up as a corporate transactions lawyer, you probably are not going to use much from your torts class either.

What makes a well-rounded lawyer is more than just practice skills, although those are of course very useful.

We don't need to learn everything we are going to use in practice in law school. That is why we have continuing education and legal research skills.

Having a firm grasp of both our Constitutional history and our Constitution should be required of every graduate of law school. I seriously would advocate combining Torts and Contracts all into one class in order to accomplish it. And incorporating Property into a required legal history class that includes Constitutional law while I am at it.
2.13.2008 9:51pm
davidbernstein (mail):
I gather from what you say that your view is that the official should in effect follow both the original Constitution (due to the oath) and also the modern interpretations of it (under the Supremacy clause).
I think a public official should do the best he or she can to enforce the Constitution according to what he thinks it means, when he has the lawful discretion to do so. The Supremacy Clause certainly limits that discretion with regard to state officials. There's a lot of interesting work out there on to what extent the federal Executive Branch has to obey USSC precedents in the absence of a direct binding USSC ruling. There's certainly a case to be made that the president has independent authority to interpret the Constitution, but even if one adopted that position, the Executive would still have to obey a Supreme Court ruling on the matter if a case or controversy arose. (Just as a matter of historical interest, Congress and FDR passed the Wagner Act being pretty confident that (a) it was constitutionally valid; and (b) the Supreme Court would disagree and strike it down. They turned out to be wrong on (b), but it is a prominent example of the other branches thinking that Constitutional Law and the Constitution aren't the same, but also being willing to obey the Supreme Court if it came down to it.)
2.13.2008 10:03pm
davidbernstein (mail):
Mr. Malmstrom:

As of next year, the Con Law requirement is down to 4 credits. This is the last year it will be 6. I take it that Prof. Responsibility has been moved to an upper class course, while 2 of the Con Law credits have been shifted to TFC.
2.13.2008 10:08pm
Steve:
I find this to be a fascinating idea. Law school isn't supposed to be bar review, after all.
2.13.2008 10:17pm
Ben P (mail):

I find this to be a fascinating idea. Law school isn't supposed to be bar review, after all.


But on the other hand first year law students already have plenty on their minds without having another class with a heavy reading load.

I personally think such a class would be interesting, I took a similar class in Undergrad as part of a political science curriculum.

However, to deliberately play the cynic here, I'm fairly confident in the belief that the majority of the students in this class (even at a university like GMU) will decide that attempting to parse a case in property or contracts or civil procedure or torts, or working on that memo for LRW is more important than reading some 19th century political debate. Subsequently they will complain amongst themselves that there aren't any concrete rules to learn in such a course and they have no idea what will be on the test, and except for the students who were previously deeply interested in this subject beforehand, few of them will come way from the class with anything like what the designers of the course expect them to.
2.13.2008 10:40pm
Michael Masinter (mail):
The assumption that the Founders' Constitution still governs is roughly equivalent to the assumption that the Articles of
Confederation still govern. The Civil War and the three amendments that followed radically restructured the Founders' Constitution just as the Founders' Constitution radically restructured the Articles. A course that ignores the role of the Civil War in constitutional history is akin to an astronomy course that ends with a geocentric universe.
2.13.2008 10:57pm
theophilus (mail) (www):
As a GMU 1L, I can tell you that the reading isn't all that arduous and isn't turning our minds into "mush". It certainly isn't indoctrination, it's more like history and political theory.

I don't know the big picture yet, I obviously haven't taken Con Law, but I can't help but think that understanding the motivation for a document will help you understand the document when the time comes.

Of course, I happen to enjoy the course. Since I don't think that's allowed in Law school, apparently we should get rid of it.
2.13.2008 11:34pm
Alec:
It seems a little weird to require this course, since even Chemerinsky (no doubt a radical liberal in right wing legal circles) includes discussions of historical documents in his constitutional textbooks. Like others have said, it makes a great elective. I would love to take that as an elective. As long, of course, as it was not an attempt to indoctrinate me. Just like Law and Economics. To be clear, I feel the same way about, say, Critical Legal Studies. I fear that by making it a requirement the school is making an attempt at ideological branding, which didn't sit well with a younger generation when the left tried to do it and which will not sit well with a younger generation if the right tries to do it. We want universities, not seminaries. After all, we're paying for it.
2.13.2008 11:40pm
Cornellian (mail):
Actually, along the lines that Alec mentioned, it would probably be an even better idea to open the course to non-law students. I'm sure lots of poli-sci and history students would love to take it.
2.13.2008 11:46pm
davidbernstein (mail):
A course that ignores the role of the Civil War in constitutional history is akin to an astronomy course that ends with a geocentric universe.
The course is "The Founders' Constitution," not "The Constitution." Later developments get normal coverage in the regular 4-credit course, plus many electives. And many aspects of the original Constitution do still govern, albeit without caselaw or much controversy: The electoral college, equal representation for states in the senate, house by population, minimum age for elected federal officials, the presidential veto, advice and consent of the Senate, bicameralism, impeachment, no bills of attainder, a Supreme court, the supremacy clause, the treaty power, life tenure for judges with no reduction in pay, and so forth and so on.
2.13.2008 11:47pm
Gaius Marius:
Frankly, this class should be required in our high school curricula.
2.13.2008 11:58pm
Anonvccommenter (mail):
C'mon, we all know that the 14th Amendment is THE Constitution. John Hart Ely said so.
2.14.2008 12:01am
hawkins:

what can you do for us about the 2.8-2.9 curve? Employers have told me honestly that it DOES hurt GMU students. The transcripts just look bad when compared to other schools' (GW's for instance) 3.3ish means. Not every employer has the time or cares to compare each school's grading system.


Employers shouldnt have to compare grading systems if the resume includes class rank. However, Im sure that a 50th percentile/3.3 resume looks a lot better than a 50th percentile/2.9 resume.
2.14.2008 12:06am
shush!:
Again, speaking as a George Mason grad, I doubt that the course will have much impact on the first two things important to a law school grad: (1) passing a Bar exam, and (2) getting a job. Maybe not in that order. However, in order to KEEP the job, you're going to have to pass the Bar exam, usually no later than your 2nd attempt.

George Mason's best gift to their students is their series of writing classes. As I recall, we had mandatory writing classes every semester; I've heard that most law schools require writing classes only for the first year.

WHY was it such a gift? Bar exam is two days. 2nd day is dependant on whether you can memorize enough quick nonsense during your BarBri course, often for subjects you never took in law school. But the FIRST day is pure writing! In some jurisdictions, part of that writing day is a "practitioner's exam," in which the applicant is provided a "closed library" of law and cases, given a problem, and told to write.

On the writing day of the exam, I walked out of the exam 55 minutes early. The proctor I handed my exam to thought I was taking a bathroom break. I left absolutely knowing that I'd done exceptionally well on the essay portion of the exam, and that was because of George Mason's writing program. I know that my performance on the essay portion gave me a wide margin of safety for the MBE day.

So long as George Mason keeps the writing program, my guess is that fiddling with a course here or there is not going to do anything one way or the other.
2.14.2008 12:21am
Skyler (mail) (www):
This is why I've always wanted to go to George Mason. I hope this idea gets copied widely.
2.14.2008 12:27am
Duffy Pratt (mail):
Do you honestly think that the main benefit you got from your writing courses was in preparation for the bar? If so, perhaps there's something else that is lacking from the George Mason education.
2.14.2008 12:38am
Ben P (mail):

Bar exam is two days. 2nd day is dependant on whether you can memorize enough quick nonsense during your BarBri course, often for subjects you never took in law school. But the FIRST day is pure writing! In some jurisdictions, part of that writing day is a "practitioner's exam," in which the applicant is provided a "closed library" of law and cases, given a problem, and told to write.


Curiously the bar exam here is the reverse. It's three days. The first day is the Multistate, the second a series of state specific essay exam questions, and the third is a "practicioners" exam.


But I would be inclined to agree. While I really liked taking courses in various substantive and theoretical areas of the law, by far the most useful courses in law school were those that taught us to research and write effectively.
2.14.2008 12:41am
Justin (mail):
BTW - its shocking that the syllabus doesn't mention the word "slavery" once.
2.14.2008 12:48am
Alec:
The syllabus does not mention slavery? If so, then I have serious questions about this course, be it an elective or required. Understanding slavery is integral to understanding the debates and the text of the constitution, and I know that intelligent originalists and textualists know this. That omission would raise questions about the academic integrity of this course. Is it intellecutally defensible or merely a mouthpiece for the conservative movement? If it is the latter, I do not think that method of ideological branding is worthwhile and probably be damaging.
2.14.2008 1:03am
jim47:
Michael Masinter: consider that some of those same legal sources they are studying in the course were also ones that heavily influenced the reconstructors. Learning the founder's constitution isn't a barrier to serious study of the reconstructed constitution, it's a useful prerequisite.
2.14.2008 1:14am
shush!:

Duffy Pratt wrote:
Do you honestly think that the main benefit you got from your writing courses was in preparation for the bar? If so, perhaps there's something else that is lacking from the George Mason education.


Your point? Let me guess: You don't like George Mason. Did they not offer you admission? George Mason is pretty high up on the food chain these days. #34 as I recall. The way the world works is that if you were associated with a law school much ABOVE that number, you wouldn't bother insulting George Mason; it would be "beneath you" to insult a "lesser." So, one is left to assume that your law school association is, perhaps, a few notches below George Mason. Just guessing.

Few law school graduates would find fault with a program that almost guarantees you'll walk out of a bar exam knowing that you've passed.
2.14.2008 1:38am
Jon Rowe (mail) (www):

The syllabus does not mention slavery? If so, then I have serious questions about this course, be it an elective or required. Understanding slavery is integral to understanding the debates and the text of the constitution, and I know that intelligent originalists and textualists know this. That omission would raise questions about the academic integrity of this course.


I agree that slavery certainly is something that must be included in the Founders' Constitution. Yet, there are two (or more) different ways to approach this and other constitutional issues. Unmoored from the Declaration or the Founders' natural rights ideals, slavery was certainly a constitutionally protected practice.

Looking at the Declaration of Independence and the Founders' natural rights ideals, found in, among other places, their anti-slavery quotations, on the other hand, illustrates the way in which we can abstract ideals from the Founding that contradict accept practice that most folks didn't anticipate being unconstitutionalized with the ratification of the Constitution in 1789 or the Bill of Rights in 1791. This is what Barnett, Balkin, Amar et al. mean (I think) when they discuss originalism that is not for garden variety conservative originalists.
2.14.2008 1:50am
theobromophile (www):
Sounds like a wonderful idea. Makes me wish I had gone to law school about four or five years later than I did....

As for applicability: Constitutional interpretation closely resembles statutory interpretation. I do think the latter is slightly easier: statutues usually have definitions at the beginning and are cross-referenced throughout. The Constitution, however, has its own idiosyncratic structure. The theories of textual interpretation - do not interpret something so as to be meaningless, redundant, or inconsistent with the use of the same term elsewhere - apply in spades to the Constitution.

Early Constitutional decisions do not make much sense to us, intuitively, possibly because we are used to later decisions (which, without a doubt, have moved far from the original interpretation of the document), and we lack the understanding of that era that the Justices of the time had. Individual provisions of the Constitution are not subject to a plain reading, and early Supreme Court decisions made short work of the textual analysis. (Of course, they were probably written in quill pen, so can you really blame anyone for not wanting to state that which was, at the time, obvious?)

Random suggestion for those teaching the course: give out the syllabus before Christmas break. If possible, give it to students when they send in their deposits. The reading list is pretty long, and much of it is dense and needs time to settle in. If any overly ambitious students want to get started on it over the summer or over winter break, let them at it. (IIRC, 1L spring was a long semester. Our winter break was all of two weeks, and then we returned for statute-based classes and job hunting.)
2.14.2008 3:37am
Brett Bellmore:

As for it being in the oath, it's empty verbiage


Whoo, talk about condensing everything that's wrong with the legal profession into one pithy phrase!
2.14.2008 8:15am
ALS:
re: slavery,

If you read the syllabus, you'll note that it covers the Northwest Ordinance (week 3), federal revenue (week 7), and representation (weeks 8 and 9). It may not be enough emphasis for those who wallow in the evilness of the white man, but these topics cover slavery to the degree it was relevant to the framing. You would know that if you have studied these materials.
2.14.2008 8:30am
Frog Leg (mail):
Any course that purports to be about the background of the Constitution but does not deal with the background of the 14th Amendment will be inherently stilted. The 14th Amendment fundamentally altered the Constitution and "moved the goalposts" of the debates on such as issues as federalism. Sometimes getting 1/2 of the story is worse than getting no story at all.
2.14.2008 9:02am
Frog Leg (mail):
theobromophile: As for applicability: Constitutional interpretation closely resembles statutory interpretation.

This is overly simplified. Constitutional interpretation is a hybrid of statutory interpretation and common law interpretation. This is the only way to answer Madison's concerns about the effect of enumerating rights in limiting all others. If it's just like statutory interpretation, than inclusio unius exclusio alterius applies.
2.14.2008 9:10am
Justin (mail):
ALS - while its sure possible that slavery could be mentioned during those 3 weeks, its somewhat tangential to the Northwest Ordinance and revenue, and I could easily teach both of them without anything more than a mere mention of the word slavery, in a fairly competent manner.

Representation is more on point, but the 3/5 compromise is more about federalism than slavery, and most of representation will go to the republic system of government rather than the 3/5 compromise.

And none of it gets to the core reason slavery needs to be included - the dichotomy between rights and practice, and the exclusivity of the social compact.

Also - if you're going to do the Northwest Ordinance, you probably should also do the Alien and Sedition Acts, but failure to do so is more defendable than not including slavery.
2.14.2008 9:36am
Justin (mail):
Also ALS, your obnoxious comment towards me aside, there's certainly substantial room between putting things up on a pedestal and ignoring entire parts of history because they make us uncomfortable, and "wallowing in the evil of white men." No, you figured me out. I'm a self loathing, hating white man,, because the topic of slavery - and to the credit of certain white men, the heated the discussion about whether to permit the process, with a compromise that explicitly allowed importing slaves until 1808 - happens to hurt your glorious white pride.
2.14.2008 9:42am
Just Saying:
Brett-- How about an actual argument? As far as I'm aware, a lawyer can't be disbarred for a nebulous failure to 'uphold the constitution'. There seems to be no obligation stemming from those words; a lawyer is not obligated to, for instance, rail against congress passing a bill of attainder. Part of an oath that is unenforceable and creates no obligation is as close to empty verbiage as it gets. The importance of constitutional law to the average practitioner and citizen is greatly overstated.
2.14.2008 10:06am
Student:
For all those wishing they could take the course: There is a link to the course description on the Mason Law home page, and that page contains list to the reading list. As far as I can tell all of the reading is available online.
2.14.2008 10:07am
DiverDan (mail):
Sounds like a very good idea, but may not be necessary for all students. I took a Political Science class called "Constitutional Law" in undergrad, that focused almost exclusively on the Federalist Papers, the Anti-Federalist, and the Debates on the Constitution. This course sounds like there might be a lot of overlap with that type of undergrad course - you need to think about whether or not students can qualify to bypass this prerequisite (MBA course regularly let students pass out of the required Econ and Accounting courses if their undergrad background in Econ and/or Accounting was deemed sufficient).
2.14.2008 10:09am
Duffy Pratt (mail):

Your point? Let me guess: You don't like George Mason. Did they not offer you admission? George Mason is pretty high up on the food chain these days. #34 as I recall. The way the world works is that if you were associated with a law school much ABOVE that number, you wouldn't bother insulting George Mason; it would be "beneath you" to insult a "lesser." So, one is left to assume that your law school association is, perhaps, a few notches below George Mason. Just guessing.

Few law school graduates would find fault with a program that almost guarantees you'll walk out of a bar exam knowing that you've passed.



I didn't insult George Mason. I'm all in favor of a strong writing curriculum. (Actually, if I were to redo the educational system, I would have all classes be directed towards skills instead of subjects. There would be reading, writing, math, speaking, arts and performing arts, etc...)

What I questioned, instead, was your appreciation of the subject. The bar exam is just a blip in the road. It's more like a signpost than a destination. You will be writing, presumably, for the rest of your life and not just for the bar. Praising a writing course for how it helped you with the bar shows very misplaced priorities.

By the way, judging people by where they went to law school (or undergraduate school) is also a bad idea. It makes no difference to me where George Mason is ranked, or where my law school was ranked.
2.14.2008 10:19am
ClosetLibertarian (mail):
This is a positive change to a good curriculum.

Lund was already teaching this class as Constitutional Law. While it was a great class, students were sometimes confused to find out that Marbury v. Madison is widely accepted as good law. This will separate the constitution of how it is written from the Constitutional law of the Supreme Court today.
2.14.2008 10:33am
A.C.:
Any chance of spinning off a related CLE class? I'm interested in doing the readings, but I would also like to hear some commentary on them of the type that I assume the class would provide.
2.14.2008 10:34am
Justin (mail):
I see Brutus III and Madison's Notes are being discussed, so I assume (hope?) that there will be some discussion of slavery, mostly limited to northern dissatisfaction with the 3/5 compromise. Unfortunately, Cato VI is not being discussed - if any of the professors are reading this, you may want to consider so including.
2.14.2008 10:40am
ALS:
I see Brutus III and Madison's Notes are being discussed

Again, if you had read the material in question - or even the syllabus - before commenting on the presence or absence of certain topics, you would realize that slavery is usually discussed in terms of representation and taxation. Farber and Sherry's A History of the American Constitution certainly treats the topic in these contexts. Why, you ask? Ah, yes... that would be the context in which it was discussed at the Convention.

I think your reaction exemplifies the need for exposure to these materials - too many people graduate from law school without getting beyond high-schoolish notions of our country's history and founding philosophy. As a group, the Framers were men of the world - soldiers and politicians - who were quite pragmatic. More than a few historians have attributed the success of the Convention, in part, to the he relative absence of idealogues. Not being apologetic for compromises which facilitated the Union is far from a moral fault.
2.14.2008 11:22am
jpe (mail):
They're certainly cementing their rep as the home of conservative scholarship. (that's not a dig) Personally, I'd have rather seen way less common law and way more statutory courses.
2.14.2008 11:39am
Mark Field (mail):

you would realize that slavery is usually discussed in terms of representation and taxation.


That's a pretty narrow context. What about the effect of slavery on, say, freedom of speech or the right to bear arms? What about the nexus between slavery and "states rights"? What about slavery and the territories? What about slavery and taxation (about which whole books have been written)? What about slavery and the structure of the Senate? Etc.
2.14.2008 11:39am
PLR:
From the website:

Supreme Court case law, not the Constitution itself, is what Constitutional Law courses are conventionally about.


And there's a good reason for that. I'm with OrinKerr on this one, although he is much more polite than I am. GMU apparently believes that its few law school graduates who choose careers in which constitutional law is relevant need only approach the Circuit Court of Appeals and the Supreme Court with their Founders' Constitution training, secure in the knowledge that they will be greeted only by the same narrow specturm of legal "thought" exemplified by GWB's federal appointees.

This is legal history, and a rather small part of legal history at that. It is no substitute at all for understanding the evolution of constitutional law. The cynic might suggest that this is really nothing more than a politcal science course taught by ideologues, but since the course has not yet been taught, I will wait until my cynicism is more timely.

P.S.: My two cents' worth for law schools that want to think outside the box. Make comparative law or international law a first year requirement, as an experiment. At GMU it could replace that "Econ and Law" course, which also is highly questionable as a mandatory first year course.
2.14.2008 11:47am
Justin (mail):
ALS,

If you weren't busy being a huge arrogant condescending prick, you'd maybe take the time to realize that Farber and Sherry's A History of the American Constitution isn't in the syllibus.

A better cheap shot was me missing that the Alien and Sedition Acts are being discussed in the last week. My bad.

"As a group, the Framers were men of the world - soldiers and politicians"

Duh

"who were quite pragmatic."

Highly debatable. George Mason himself would positively vomit at the thought of being called a pragmatist.

"More than a few historians have attributed the success of the Convention, in part, to the he relative absence of idealogues."

Certainly not a majority. To call the federalist papers and the antifederalist papers nonideological is redefining the word.

"Not being apologetic for compromises which facilitated the Union is far from a moral fault."

Nobody here said apologize - but learning about? Understanding the context? Realizing the limitations?

Look, there's a serious reason you should learn about the slavery debates during the Constitution. If you're going to teach, and doctronalize, an originalist understanding of the Constitution, you should at least be aware of the substantial normative limits to such a position. If anything at all, it will make you look less a fool, being unable to understand and refute arguments other than by referring, contextless, to some particular text that you may have read and someone else hasn't.
2.14.2008 11:54am
Student:

The cynic might suggest that this is really nothing more than a politcal science course taught by ideologues, but since the course has not yet been taught, I will wait until my cynicism is more timely.


A cynic might also suggest other first year courses that are taught by ideologues. Torts, Criminal Law, and Constitutional Law can be and often are all taught by ideologues with a desire to "indoctrinate" those poor helpless first years with a bunch of lefty ideas.

So Mason's committing some grave academic sin by exposing students to the occasional conservative point of view instead of an endless parade of the "living constitution" and "social justice." Give me a break.
2.14.2008 12:01pm
ALS:

That's a pretty narrow context. What about the effect of slavery on, say, [i] freedom of speech or [ii] the right to bear arms? What about [iii] the nexus between slavery and "states rights"? What about [iv] slavery and the territories? What about [v] slavery and taxation (about which whole books have been written)? What about [vi] slavery and the structure of the Senate? Etc.


Let's see... i, ii, and iii don't seem to fall within the scope of the course. It is "The Founders' Constitution," after all. These are derivative issues, which can only be properly addressed AFTER a student understands the legal sources, philosophical background, and contemporary understanding of the document. The Northwest Ordinance covers iv. v and vi are precisely the context that I described. Same thing I told Justin: read before you post. I might add that the purpose of this course seems to be just that - to make students think before they say "I have a right to . . ." or "This country is founded on the principle of . . ."
2.14.2008 12:04pm
ALS:

"who were quite pragmatic."

Highly debatable. George Mason himself would positively vomit at the thought of being called a pragmatist.

"More than a few historians have attributed the success of the Convention, in part, to the he relative absence of idealogues."

Certainly not a majority. To call the federalist papers and the antifederalist papers nonideological is redefining the word.


The absence of Jefferson, Adams, and Henry was what came to mind. The vast majority of the Framers were quite pragmatic and moderate in comparison. Likewise the Federalist papers. Alexander Hamilton and James Madison were on opposite ends of the political spectrum, but both pragmatically joined to produce the Federalist Papers. An apt analogy might be to say that McCain and Obama could work out a pragmatic compromise on Iraq; that compromise would be relatively non-ideaological when viewed in comparison to what Cindy Sheehan would advocate.

BTW, my reference to Farber and Sherry was intended as an example. It's not a text used in this particular course, but it is illustrative of standard textbooks which cover this material. It does, however, reflect the commonly understood context for slavery at the convention. Why is that context "commonly understood"? Because that's how it was addressed at the convention.

Moreover, the issue of slavery is not a "normative limit" to an originalist understanding. It was entirely lawful; the people decided it shouldn't be, and the Constitution was changed via amendment to reflect that - even if the amendment was accomplished at the point of a gun. An originalist would object to the gun, but say "fine" with respect to the amendment.
2.14.2008 12:23pm
guest:

A cynic might also suggest other first year courses that are taught by ideologues. Torts, Criminal Law, and Constitutional Law can be and often are all taught by ideologues with a desire to "indoctrinate" those poor helpless first years with a bunch of lefty ideas.

So Mason's committing some grave academic sin by exposing students to the occasional conservative point of view instead of an endless parade of the "living constitution" and "social justice." Give me a break.

Legal history can be used by liberals as well as conservatives. See e.g. Roe v. Wade. I would hope that this course teaches students how to use history to argue either side of a position, otherwise the course would be useless to any attorney. The 1L courses are supposed to teach students how to "think like a lawyer" not how to think like a Federalist Society member. If the course teaches students how to use history to support their arguments, fine. But I imagine that would be seen by many as teaching students how to distort history and is not the goal of GM.
I dont think this course as described will be of much benefit to the vast majority of law students after law school. Historical constitutional arguments are never used by the overwhelming majority of practicing attorneys. As such, I dont think it should be a required course. It is a very interesting course, and something that Mason should promote to students. I just dont think the course will teach what the first year is supposed to be about.
2.14.2008 12:28pm
Mark Field (mail):

i, ii, and iii don't seem to fall within the scope of the course. It is "The Founders' Constitution," after all. These are derivative issues, which can only be properly addressed AFTER a student understands the legal sources, philosophical background, and contemporary understanding of the document.


This is so ignorantly wrong that's it's obviously not worth pursuing the conversation.


The Northwest Ordinance covers iv.


This is laughably wrong.


v and vi are precisely the context that I described.


This is, in a famous phrase, not even wrong.
2.14.2008 12:34pm
ALS:
MarkField,

If all of my statements are so "ignorantly wrong" or "laughably wrong," then perhaps you could provide a quick one or two sentence summary explaining each? It shouldn't be that hard if they are so far from reality.
2.14.2008 12:46pm
ALS:
Or should we just believe some random guy named MarkField? I'll show you my cites if you show me yours.
2.14.2008 12:47pm
Thales (mail) (www):
"Sorry, David, I was just trying to figure out if a state official who swore only to uphold the original public meaning of the Constitution would feel justified in ignoring Supreme Court precedents. I didn't understand why you though the Supremacy Clause was relevant. I gather from what you say that your view is that the official should in effect follow both the original Constitution (due to the oath) and also the modern interpretations of it (under the Supremacy clause)."

I suppose one could be committed to the proposition that the original public meaning of the Constitution, as amended by the original public meaning of the 14th Amendment, is that the Bill of Rights restricts state governments as well as the national one (see Akhil Amar's and others' work). One could also be committed to the proposition that the original public meaning of the constitution is that the Supreme Court's interpretations are owed deference by the legislature and executive, even if those two branches disagree with such interpretations. It seems that Alexander Hamilton, to take one Founder, believed that.

I'm curious whether GMU's Founder's Constitution will consider the views of the school's namesake. George Mason's preferred constitution died in debate, and he refused to sign the one that came out of the convention. Is his view that parts of the document were illegitimate to be considered part of the original public meaning as well? It would make for an interesting historical discussion, though I agree with Orin that the course seems largely irrelevant to a practical grounding in constitutional and other law as practiced by contemporary lawyers.
2.14.2008 12:57pm
JosephSlater (mail):
I'm all for law students learning more history. But out of curiosity, what materials/subjects are being cut out of the previous six-credits worth of Con law to make room for these two credits of history? I ask because my con law colleagues seem to think they can barely get in all the important law in six credits.

Second, if you're going to devote 1/3 of the first year Con law class credits to history, isn't it a bit odd to exclude the history and development of the 14th Amendment? Those Reconstruction-era Amendments had a pretty big effect on what the Constitution says and means -- not just on the issues they cover but also structurally.
2.14.2008 1:33pm
Mark Field (mail):

If all of my statements are so "ignorantly wrong" or "laughably wrong," then perhaps you could provide a quick one or two sentence summary explaining each? It shouldn't be that hard if they are so far from reality.


I'll make you a deal: drop the arrogant, insulting tone and we can have a discussion about this. Deal?
2.14.2008 1:58pm
Skyler (mail) (www):
Good grief. Slavery is no longer an issue. The 3/5 rule has no bearing on anything anymore. Slavery, in the context of the creation of the Constitution, is no longer very germane except as a side issue. It has nothing to do with conservative v. liberal or whatever political ideology you might want to profess because no one alive supports slavery any longer and it is no longer an institution in this country. Studying its impact on the writing of the Constitution can only be valuable to a small extent as far as it affects its interpretation today. It's interesting as a historical issue, and certainly as a sociological issue, but as a legal topic, it's quite limited.
2.14.2008 3:16pm
CFroh (mail) (www):
In the middle of today's blog, I linked to this great news about George Mason's requirement of Constitutional education for lawyers. If you want to spread this news out from Volokh, feel free to click on my blog and leave a "comment":



Blessings
2.14.2008 3:29pm
PLR:
A cynic might also suggest other first year courses that are taught by ideologues. Torts, Criminal Law, and Constitutional Law can be and often are all taught by ideologues with a desire to "indoctrinate" those poor helpless first years with a bunch of lefty ideas.

Those subjects are important for lawyers and a necessary part of a 1L curriculum. I don't have an issue with individual professors being ideologues, I had them from both sides.
So Mason's committing some grave academic sin by exposing students to the occasional conservative point of view instead of an endless parade of the "living constitution" and "social justice." Give me a break.

Grave academic sin? Interesting distortion of my post. My point was that it's ridiculous that GMU has apparently replaced its mandatory constitutional law class for 1L students with a mandatory legal history class. But I guess if a law school adopts a mission to churn out think tankers rather than appellate lawyers, and students are willing to pay the tuition for that, I don't especially care.
2.14.2008 3:42pm
Mark Field (mail):

Studying its impact on the writing of the Constitution can only be valuable to a small extent as far as it affects its interpretation today. It's interesting as a historical issue, and certainly as a sociological issue, but as a legal topic, it's quite limited.


But Skyler, the whole point of this class is to teach the Founders' Constitution, not the Constitution today. Whether we like it or not, that Constitution developed out of a slave-holding society and its terms were substantially affected by slavery. If the course fails to communicate that basic historical fact, it will have failed to accomplish its stated goal.
2.14.2008 3:53pm
pluribus:
Just Saying:

Why do law schools insist on the theoretical over the practical?

The answer, if I recall correctly from my first year, is that good theory is the most practical thing a lawyer can learn. Learning how to find the men's (or women's) room in the courthouse is practical, but hardly worth good law school time.
2.14.2008 4:27pm
pluribus:
guest:

This sounds like history, not law.

This tells me more about your theory of the Constitution than about the Constitution itself. Have you read Article VI,clause 2, recently?
2.14.2008 4:33pm
Brett Bellmore:

How about an actual argument? As far as I'm aware, a lawyer can't be disbarred for a nebulous failure to 'uphold the constitution'. There seems to be no obligation stemming from those words; a lawyer is not obligated to, for instance, rail against congress passing a bill of attainder. Part of an oath that is unenforceable and creates no obligation is as close to empty verbiage as it gets. The importance of constitutional law to the average practitioner and citizen is greatly overstated.


An actual argument? The oath is "unenforceable" only because the legal profession choses not to find it offensive when it's members swear a false oath for financial gain. And this is not supposed to reflect on the legal profession?
2.14.2008 4:47pm
Alec:
Did I really see it written that ALS believes slavery is OK from an originalist standpoint, as long as the vote to implement it was...what? According to the dictates of the constitution? That originalists would only object to the "gun" used to get the Southern states to adopt it?

If an originalist believes in no higher principles than that, well...I want no more lectures on natural law in originalist opinions or from its advocates.
2.14.2008 4:56pm
ALS:

Whether we like it or not, that Constitution developed out of a slave-holding society and its terms were substantially affected by slavery. If the course fails to communicate that basic historical fact, it will have failed to accomplish its stated goal.


The Constitution also developed out of a society in which: a populist governor of Massachusetts spent prolifically, but failed to collect taxes - ultimately leading to Shay's rebellion (when the bill came due); states passed paper tender acts, with the intent and effect of transferring massive amounts of wealth from creditors to debtors; agricultural exporters and an urban shipping industry sought conflicting trade protections; (remembering 9th grade history) big states and small states refused to yield power; and, perhaps more fundamentally, some men believed that mankind is inherently virtuous, while more worldly men sought to check the power of others rather than rely on their virtue. Each of these issues is a "basic historical fact" that "substantially affected" the design of the resulting government. They aren't as sexy as discussing how the evil, twisted, damned, unjust, and inhuman slave-holding South forced the lily white pure soul of God's own North to tar itself with compromise, but they affected the debate in far more fundamental ways, e.g., the degree of democratic representation that was desired and/or tolerable. Would you advocate as much attention to these issues as you are advocating for slavery? They don't boil down to the black letters of the 3/5 compromise, but each was arguably more important and, for that matter - unlike slavery - they still have significance.
2.14.2008 6:37pm
MarkField (mail):
ALS, I absolutely agree that all of those issues (and many more -- religion?) were important. Where I disagree is with your claim that these other issues affected the debate in more fundamental ways than slavery. They did not.

That said, your post is an argument for expanding the scope of the historical discussion, not curtailing it. And certainly not curtailing it to the point where slavery isn't discussed.

Finally, your claim that other issues still have significance (with the implication that slavery doesn't) is one I disagree with and which, I think raises all kinds of potential problems with the class.

First my disagreement. Slavery still affects the Constitution today. As I said above, we owe the unrepresentative Senate, in part, to slavery. We interpret the 14th A and 15th A through the lens of slavery and its successor, segregation. We still, today, can't tax exports, though that clause exists solely because of slavery. We can't impose direct taxes except under restrictive conditions, and that clause was an integral part of the slavery compromise.

More important, though, is the implication that the course should only cover "the Founders' Constitution" as we today think it significant. That's a very different subject than the course title suggests. For one thing, there's a pretty strong tendency to Whig history in such a course. For another, such a focus would almost inevitably lead to criticism that the course consisted of indoctrination rather than history. I hope that GMU doesn't fall into that trap.
2.14.2008 6:56pm
Lori Ringhand (mail):
Orin:

According to Nelson Lund's original post on the ConLaw listserve, the new course replaces a previously required Con Law II class (which was described as covering equal protection and substantive due process). While I am intrigued by the idea of a Constitutional history class, I find the exclusion of the Civil War Amendments troubling, particularly given that concepts such as federalism - which plainly were altered by the Civil War - are likely to be a focus of the new course.

Lori
2.15.2008 8:22am
JosephSlater (mail):
Lori Ringhand asks what I was trying to get at earlier in my post above (it hasn't been answered yet). The question probably shouldn't be directed at Orin, however, because he's not at GMU.
2.15.2008 10:26am
Randy R. (mail):
Will they also teach the writings of Rousseau and Montesque, both of whom greatly influenced our Founding Fathers? It seems that they should.
Also, I would include a teaching of the Glorious Revolution in England under William and Mary, which was an important turning point, which means that you have to teach a big chunk of 17th century English history.

Once you pull on a thread, you unravel the whole sweater!
2.15.2008 10:36am