Constitutional History

My baby's bris was yesterday. The Rabbi came -- the first time we met him, in fact (we joined the synagogue in December) -- and asked me what I did for a living. I told him I was a professor at Lewis & Clark Law School, teaching constitutional law. "Are they going to move you to the history department?", he quipped.

Ha ha ha [sob].

For many, many, many reasons, I'm glad I'm not teaching this semester. But for a while now, I've been reflecting on how I teach constitutional law, and in particular how I triage the limited time I have each term. New law keeps being made and the length of a semester stays the same, so there's always a question of what to drop in order to make room for new material.

In my classes, I actually teach a fair amount of constitutional law "history" -- that is, going through doctrinal periods whose prevailing law is no longer valid (alongside, of course, the "current" doctrine" as well). For example, I devote substantial attention to the Lochner era of substantive due process and the pre-New Deal federalism/commerce clause cases. More recently, I've kept teaching Roe and Casey even after Dobbs, and Gratz/Grutter after SFFA. I teach the new cases too, of course, but I do think it is important to trace where we came from, and I don't shirk on allocating time to that project. 

At one level, these cases are the easiest to prune for space. They aren't good law anymore; one does not need to know them in order to know what "constitutional law" is today. And I suspect there will soon be even more venerable old cases whose holdings are going to be overturned or superseded in the coming years, to be replaced by new upstart doctrines.

But as we prepare to enter what in all likelihood will be a very grim period in our constitutional jurisprudence, I increasingly believe that teaching the history is more important than ever -- simply because it demonstrates that the law does not have to be this way. There is nothing inexorable about the choices that will be made, they are not simply the way the constitution is. Keeping alive the flame of alternative possibilities -- legal regimes that once prevailed and could prevail again -- is going to matter, and it is a way of not surrendering to the totalitarian darkness that is attempting to consume us.

This, after all, is one thing that conservatives did very well with their "constitution in exile", and I have no shame in following their example. And while the arc may be long and the path may bend, ultimately, mir veln zey iberlebn -- "we will outlive them."

What Will Go Wrong Hardest, Fastest?

It's hard to keep track of the firehose of sewage the Trump administration has already started pumping out in its first few days. From civil rights to cybersecurity, the administration has been taking a wrecking ball to the American governmental project, with consequences that will likely reverberate for years, if not decades.

But I don't want to wait that long. I'm curious: which of Trump's endeavors are likely to blow up hardest, fastest, in a way that is noticeable to the broader public?

For example, take the cancellation of scheduled funding meetings at the National Institute of Health. This is a terrible thing, that will needlessly obstruct critical medical research. But while it's certainly noticeable to the doctors and scientists on the inside, the public impact of it won't be felt for a long time. It's not like there's a cancer cure that was scheduled to come out tomorrow that now is being shelved.

Ditto Pete Hegseth likely getting confirmed as Secretary of Defense. It is very bad that an alcoholic sexual predator is overseeing America's military, but we're not going to lose Buffalo to a Canadian invasion in the short-term. The fallout -- in terms of military readiness, efficiency, professionalism, and so on -- will occur over a longer timescale.

By contrast, the myriad governmental hiring freezes Trump has announced do seem to be breaking out of containment, insofar as they are kneecapping many people who in many cases were all set to move long distances to start a new job, only to have it abruptly pulled out from under them. I'm already seeing a few "leopards ate my face" posts by Trump supporters who are sure that Trump couldn't possibly have meant to do exactly what he said he was going to do.

Tariffs are another good candidate for something that will immediately, dramatically, and noticeably impact American pocketbooks -- especially if they set off another bout of inflation.

But maybe there's something else that will explode harder, faster, and stronger than I anticipate. I would say I can't wait to find out, but I suspect my preferences will have little to say on the matter.

Does the ADL Care That Republicans Admire Hitler?

Shortly before the election, I posted about the alarming fact that (a) Trump seems to admire Hitler and (b) Republicans don't seem to care that Trump admires Hitler. In the course of that post, I asked rhetorically what the ADL's response to this news was going to be, observing that the actual answer appeared to be covering their eyes with a "lalala" see-no-evil approach. This was of a kind with the new direction Jonathan Greenblatt had taken the organization, which was steadfast and resolute in never, ever, giving offense or more than the most mealy-mouthed critique to the American right no matter how open their antisemitism became.

Fast forward a few months and some increasingly pathetic acts of ADL supplication, and we reach inauguration day, where Acting President Elon Musk appears to have given a Nazi stiff-arm salute (the Nazis sure think so). 

Is the ADL on the case? Only if dismissing the case counts!

On possible basis is there to extend any sort of "grace" or "benefit of the doubt" to Elon Musk of all people? He's basically a modern-day Henry Ford (oops, bad comparison)! He's been one the leading figures injecting extreme-right antisemitism back into mainstream discourse! There are few people -- even including Donald Trump -- who have been more open than Elon Musk about wanting to resurrect the reputations and the political influence of the modern-day Nazi movement. Extending "grace" to Elon Musk should be like extending "grace" to, I don't know, the Alternative for Germany party.

But of course, none of that matters. The ADL has, over the past few months, made it abundantly clear that it views the American far-right as its friend, and so will extend infinite grace to them no matter how obvious their antisemitism becomes. It's disgusting. It's despicable. It is a grotesque abdication of the ADL's core mission. And the worst part it is, it's no longer even surprising.

I spent today taking care of my newborn, doing my best to keep him fed, warm, and safe. My only thought on the inauguration I wanted to have was that it was a shameful, shameful day. Which it was -- but it didn't occur to me that the ADL would add to that shame. 

Maybe it should have.

What a shameful, shameful display.