One of the small mercies of the past few months is that because I'm paternity leave, I am not teaching Constitutional Law right now. Even before the election I was dreading having to incorporate Trump v. United States into my syllabus. Obviously now, things are much, much worse.
When I was in law school, conservatives spoke of teaching about "the constitution in exile" -- the true and proper legal order that for decades had been flouted and suppressed by the courts. Of course, what they meant by that was a world where Social Security was unconstitutional. But today I think it is fair to say that the constitution is, truly, in exile.
The upper ranks of the federal judiciary is controlled by a cabal with complete and utter contempt for the most basic constitutional values that are meant to guide this nation. Lawless disappearances, dictatorial executive power, impunity for corrupt officials, sabotaging of democratic elections -- it's all here, and it's all embedding itself into the official accounts of constitutional law as recorded in U.S. Reporter. In the foreseeable future, the prospects of undoing these decisions, or even stemming further decay, feel grim. Certainly, legal arguments don't seem likely to save us.
It is tremendously, tremendously depressing to feel as if the "law" one imparts on one's students is irrelevant; that no legal argument they can make, no matter how well-warranted or justified, will make a difference in legal outcomes if the powers-that-be prefer something different. Robert Bolt once characterized the essence of law as "a causeway upon which so long as he keeps to it a citizen may walk safely." When rule of law breaks down, this causeway turns into a mirage -- the citizen (to say nothing of the visitor or resident alien) who tries to keep to it is acutely aware that it might disappear under his feet at any time. The constitution that was supposed to guarantee us the ability to walk safely is, practically speaking, no longer present. It has been exiled, replaced by an usurper.
So what does one do as a constitutional law professor? I've always believed that my primary job, albeit not my only job, is to teach my students what the law and doctrine is, as it is declared by the Supreme Court. This view of my role is not in contrast to taking a more critical perspective -- to the contrary, the point is that foundational knowledge is a prerequisite to any effective critique. One has to know what the law is, in order to know whether the law is good, right, or should remain the law at all. Those more normative conclusions are for my students to draw for themselves; but it is absolutely in my ambit to give them the resources to make those critical judgments.
That view has not changed. But going forward, it will be even more important to contextualize the law as its being articulated today in terms of other possibilities and roads not taken. The law that we have is not something inalterable or inexorable; it is a choice. There are other choices. What are the reasons behind the choices that were made? What are the arguments for making different choices? Which choices fit better inside the broader corpus of legal values and commitments that were meant to guide the American constitutional project? And if we do currently live in a legal order that lies decisively outside the proper constitutional vision, what results?
There isn't, I think, any need to be didactic about this. The original "constitution in exile" proponents had faith that simply laying out their alternative vision of what the constitution should be would suffice to gain them acolytes. I have similar confidence that the articulating the actual constitution -- the causeway of safety meant to guard us from predatory abuses and overreach -- will earn similar loyalty. And I do not know how long it will take for this constitution to return from its exile. But one must have faith that with enough support and enough commitment from persons who retained their faith in the rule of law, it will return, and will bring its just reckoning.
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