More thoughts on why many lawyers don’t understand the Constitution, from Jen Rubin:
…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.
This is why so many “progressive” lawyers (including Barack Obama) have made such fools of themselves in front of a Supreme Court that actually does understand, and care about it, and why so many legal analysts in the media have been so shocked that the court actually takes constitutional arguments seriously.
The Federalist Papers are not and were not intended to be the final or only means of interpreting the Constitution. The Papers were intended as a commercial to sell New York voters on the idea of ratifying the Constitution. There are a whole lot of other sources of information on what the Founders intended.
In addition, the statement that the Federalist Papers “are not taught” is a flat lie. They are taught.
Chris, your link confirms the charge more than it refutes it. You’d think the original article would be countered by a professor who actually teaches the Federalist Papers. Nope. What we have is someone who says
Then he goes on to say
So, the statement ” almost every single American government reader … I have ever seen over the last two decades plus” includes Federalists Papers somehow means that they weren’t taught? They’re part of the required reading! How is that “not taught?”
Chris, that’s exactly it. If almost every English textbook mentions Shakespeare, but nobody has to read any of his actual plays, then they’re not teaching Shakespeare, just tossing in a few of his sonnets as filler.
The readers don’t “include” the entirety of the Federalist Papers, or else more than half of the textbook would be made up of the compiled book called “The Federalist Papers”, which is why the author can only cite 3 of the 85 Federalist papers as commonly appearing in the textbooks.
They are not hard to read, Chris. You could probably burn through all 85 of them in a day or two, as I did decades ago. I just now read Federalist Number 2 in 4 or 5 minutes when I grabbed an online copy for your reference.
One of the reasons they’re important (the Supreme Court cites them very frequently) is that they give an insight into how our Constitution was being sold to the populace that ratified it. Essentially, the founding generation signing the contract to operate under the Constution based on its product brochures. The contents of these brochures bear on the nature of our government, because our Constitution was adopted by the assent of the people, and those people made their decision based on the arguments and reasoning being presented by the Founders. If the operations of our government hugely deviate from that sales brochure, violating the numerous promises and reassurances therein, then the people who signed us on to it were conned.
You’ve moved the goalposts. You went from “they don’t teach the Federalist Papers” to “they don’t spend enough time on them to satisfy me.”
I outlined exactly how often the Supreme Court cites the papers – 4 or 5 times per session, in sessions of 80 or so cases, each with dozens of citations.
Chris, if you went to a Bible college that only mentioned parts of three of the books, would you consider yourself a theologian, or would you graduate with no more knowledge than a kid who skipped Sunday school nine times out of ten?
These are not hard essays. They’re written for an audience of newspaper readers educated in the 1760’s. You’re reacting to the writings of the Founding Fathers like a vampire splashed with holy water. Why is that?
You’ve moved the goalposts. You went from “they don’t teach the Federalist Papers” to “they don’t spend enough time on them to satisfy me.”
If they’re just covering 3 of 85 essays, then yes, they aren’t teaching the Federalist papers. A high school class could do better than that.
I don’t see the point about The Federalist Papers not being taught in Law School. Legal education has a specific purpose and that means teaching the Constitution and the case law that has interpreted it over the past 200 years or so.
If I were to walk into a Courtroom and start citing the The Federalist Papers as my source, ignoring the case law, I’d be rightfully laughed out of the room.
Unless you were arguing before the United States Supreme Court, whose decisions have cited the Federalist Papers 149 times since 1980. There you might get laughed out of the courtroom for not being familiar with them.
So in 32 years, they’ve cited the papers 149 times, or 4.6 cites per year? Out of 80+ cases a year (2,560, if my calculator’s right), 4 or 5 get a cite from the Federalist Papers? Sure doesn’t seem like a lot to me.
Okay, so if the Federalist Papers don’t rank second to the Constitution itself as a source for a Supreme Court citations, what does? Is there a particular ruling they’ve cited that often, and one that isn’t just a prior ruling on the Constitution itself, such as cases involving the Commerce Clause? Is there another newspaper column out there with that many citations?
One of the reasons they cite a series of essays from 1787 and 1788 is that those essays explain some of the thinking behind such concepts as seperations of powers, judicial review, and other concepts that are absolutely fundamental to how our government operates. It’s like going through an operations and maintenance manual and coming up empty, searching through decades of maintenance reports and coming up empty, and then be able to go to the filing cabinets in the attic to pull out the notebooks of the design engineers who built the darn thing. Then it’s “Aha. They said if you do A and B then C will happen, and C is a very very bad thing. That’s why widget D is bolted where it is, and why we must rule against this design change even though it would make one guy’s job a lot easier.”
That they cite it at all must mean it’s pretty important.
George Turner – the Federalist Papers are not the Bible. They are not nor were they intended to be the One True Way to interpret the Constitution. There were hundreds of people writing various comments about the then-proposed Constitution, and at least as many writing anti-constitution papers.
Not only that, there are over 200 years of thinking, research and court cases that change how we interpret the Constitution. Nothing in the Constitution gives you the right to vote for President, for example.
And if a person won’t read a compilation of lay articles written by three of the Founders, including James Madison, in what is certainly the most accessible and broad explaination of the ideas behind the document, what are the odds that such a person would bother to read the hundreds of less accessible sources?
Given a choice between understanding both the intent and mistaken perceptions of the Founders (they didn’t think party politics would be a major force), and complete ignorance of their thinking, do you think a law school should be content with ignorance? The Federalist Papers are not a hard read and could be zipped through in a weekend reading assignment, yet they seem to be avoided, raising the obvious question as to why. The original topic of this post argues that just such ignorance is why our current crop of liberal legal pundits was shocked that the Supreme Court was so skeptical of the administration’s arguments for Obamacare. If they’d read the Federalist Papers they’d realize that the Founders were very skeptical of power, which invariable attracts vain and power seeking men, and the Constitutions strict limitations on and division of powers was to try and check the tendency of people in government to trample on the rights of the people.
BTW, currently I’m reading Lawrence Friedman’s “History of American Law,” digging through the section on the 150 years of Colonial era laws that predate the Revolution – and I’m not even a law student. The era had a big influence over subsequent state laws and practice, and may provide insights into the way space settlement law would evolve (the general pattern is the establishment of a unique or novel legal system controlled by the directors or investors, with the centralized control giving way to a more dispersed system of courts as the population expands enough to support it). Colonial Law is a very much neglected subject, but of quite some historical interest. A well rounded lawyer should have a feel for the broad sweep of the subject, and not just the minutia of recent LA divorce rulings.
You keep asserting that law students aren’t reading the Federalist Papers. I keep pointing out that they are on required reading lists. I don’t know how things worked in your college, but in mine, if the professor put it on the reading list, he assumed you’d read it, even if he didn’t cover it in lecture.
Colonial Law, although interesting, is largely irrelevant to the practice of modern law. For example, women in that era couldn’t own property in their own right, and had no claims to custody of their children. Arguing from a Colonial Law perspective in an LA divorce court will get you laughed out of court.
Can you cite any professor saying the Federalist Papers are on the required reading list? Your previous link by a law professor certainly didn’t indicate that they were, or he’d have used that as his central argument instead of pointing out that three of the 85 papers are in some law readers.
And Colonial law is relevant from a historical context, because quite a lot of the unique character of American law comes from precedents that started in the Colonial period. Those characteristics still remain to varying degrees, though requiments to beat wandering Quakers have since been dropped.
What was interesting is that many colonies rejected most of English law (while retaining the local laws and customs that they were used to) and started fresh. Then as more immigrants arrived from England and the population expanded, the laws and court systems moved closer to established English practice, but never entirely matched it. The rejection of English law in favor of religious law certainly won’t be repeated in a move to space, but the rejection of the English court system as too complicated to replicate with a limited population (at the time there were several hundred different and overlapping court systems in England, with courts existing for different trades, etc) will almost certainly be repeated.
That the impression that the Colonies just brought English laws over with them is clearly false, which is itself a good reason to study a bit of Colonial law, along with the fact that all the Founding Fathers grew up in the Colonial legal system, marking the US Constutitution and state constitutions as part of its heritage.
Each professor at each university has his or her own reading list based on their syllabus. However, five minutes with Google yielded Kenyon College’s curriculum, with the Federalist Papers required for their 200-level Poli Sci course (scroll down a bit at link). So, yes, Virginia, the Federalist Papers are taught.
By the Revolution if not before, US law followed English common law, with all of its many quirks.