Paul Horwitz: Things You Ought to Know if You Teach Constitutional Law

July 27th, 2010

Paul is a stellar scholar and a great guy. Definitely take a look at his post at PrawfsBlawg on how he views teaching ConLaw. Tip #11 sticks out in particular:

11) Your students are probably more libertarian than you are (the usual suspects excepted). Unless your name is Ilya or Randy, I’m guessing your students will take a more libertarian approach to constitutional law than you do.  It may be a generational thing or a regional thing, although I’ve taught in many parts of the country.  But it does seem true to me.  Certainly most law students don’t resemble my classmates at Columbia in the early 90s, who had fairly conventional triumphalist views about state (by which I mean federal) power; nor do they resemble the standard caricature of students arguing in rights cases on a liberal-vs.-conservative line, ie. pro- or anti-affirmative action.  I have no particular problem with those politics, and it always makes Wickard fun to teach.  But it can also sap the life out of the class.  If the answer to everything is always “no,” or always “yes” for that matter, the discussion doesn’t really fully come to life.  Happily if inconsistently, many of your libertarian students will also be populists and semi-judicial skeptics.  They need not think that the government ought to be able to do everything or that it ought to do anything in particular.  But they should be encouraged to think about the law in terms of “who decides” — the courts, the duly elected legislatures, “the people” (whatever that means), and so on.  Outcomes, again, are boring.  Who gets to determine those outcomes, why, and on what absolute or comparative basis, is much more interesting, and those questions need not break down in terms of libertarian views or their alternatives.

Props to Ilya [Somin] and Randy [Barnett] for embodying the archetypal libertarians.