9 May 2000




Teaching Constitutional Law

I'm pleased to announce that my brain activity has returned to normal after a brief hiatus!  Today at lunch, I was visiting with Hallmark about our line of work and we came to a very un-Randian conclusion:  our careers are NOT our defining characteristic, and need not be so!

A little background:  Because of mergers and other unfortunate circumstances, a management group has emerged with little vision, poor people skills, and an overwhelming (not to mention misplaced) sense of self-importance.  The exodus of quality people from the company began probably a year ago.  Some of us remained hoping for a turnaround.  It's only become worse.  The impetus from above has been to create a high-powered, well-compensated management group (whose inertia will likely surrender every bit of our market-share advantage to competitors who are targeting us) and   "everyone else," a glorious proletarian group where everyone is equal and has an employee number and a cubicle whose size is specified by "Job Code" and yet is still expected to be the force behind innovating in order to maintain, nay even increase, market share.  The parallels with the happenings in Atlas Shrugged would almost be entertaining if they didn't affect people like Hallmark, who have given far too much to the place.

And that's what led us to the conclusion:  this is a job by which we obtain the things of value to us.  The work is great -- Hallmark and I are blessed (figure of speech only) to be doing what we do, it's fun, and we are damn good at it (example:   Hallmark predicted the breakup of Yugoslavia five years before it happened, and I recently nailed the coup in Pakistan).  But it is NOT what we are.  It is not our highest value or achievement, as Rand would have it.  It is my means to have the time and resources to devote to more important enterprises, like the study of political philosophy and the founding and constitutional law and Objectivism and... well, I think I made my point.  THOSE studies are what define me. 

Along those lines, I was chatting with Hallmark also about some thoughts I've had about the teaching of American constitutional law, and I was thinking of this further as I sat in the parking lot known as the Katy Freeway about 6 pm tonight.  Don Lutz's influence reared its ugly head again, because I'm just convinced that the straight casebook method of teaching constitutional law can be horribly misleading because it drops too much context.  And it's funny, because it SHOULD NOT drop context, since a close reading would send one back to all the cases cited in any given decision.  But nobody EVER teaches it that way -- hence my revelation:  it would be very easy to teach it that way by making different students responsible each week for briefing certain cases for the class.  Part of the written assignment for the class would be essays tracing the importance of the case in its context (not quite sure of the specifics of this exercise -- I'll have to work that out), as well as formally briefing the case itself. 

Why does this matter?  In my dissertation research, it became crystal clear to me that we have misread the case of Lochner v. New York for a LONG time because of the casebook method, and because Progressive historians have written the legal histories of the thing (yes, those Progressives are heavily involved here).  Read in context, Holmes dissent in Lochner, for example, was entirely irrelevant to the issues at hand, yet today IT is the part of the case to which teachers point.  A proper conceptual approach to the teaching of substantive due process would instead reveal that what was called substantive due process was really classical police powers doctrine adopted from the states!  And that would be some nifty legal reasoning to see in an undergraduate class. 

So, now I have even more impetus to finish the dissertation, because it's time for me to have Lence set me up to teach this class, as it damn well ought to be taught.   Brain vacation is over -- and thoughts to be continued tomorrow night:   in what manner and to what extent does the reader side of the Lutz textual analysis model affects my notion of virtual courses?


Copyright (c) 2000, Kevin L. Whited