How to Teach Constitutional Law Now

8/23/2014—On Monday, August 25, 2014, I begin to teach federal constitutional law again. I have been wondering how to do that. In the last 2 years, I began my con law class with an apocryphal story told about Benjamin Franklin. As Franklin was leaving the constitutional convention, a woman asked him, "Mr, Franklin, what manner of government do we have?" "A Republic, Madame," answered Franklin, "if you can keep it."

This story naturally led to treating constitutional law as the way Americans have tried to keep the Republic. Thus, I put on the blackboard before every class, the phrase, "the Tao of keeping the Republic."

But who can believe that the Republic is being kept, today? Is it not obvious that the Republic today is broken, perhaps irretrievably broken?
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Different citizens will tell the story of the brokenness of the Republic in different ways, reflecting our ideological differences. The way I see it, the evidence of our brokenness is that in a dangerous world, we Americans simply hate each other. This would come as a surprise, I think, to the framers of the Constitution. Yes, they feared faction. But we are today faction run amok and have been for awhile. You can see it in the fact that, in 1993, not one single Republican voted for President Clinton's first budget. And certainly there are many Republicans would do anything rather than cooperate with President Obama. And I think that Democratic Party partisanship is almost as bad, it just does not have as dramatic a focus.

But others would tell the story differently. For example, Randy Barnett, the great conservative thinker, would say that the system the framers created is not broken at all. It is functioning as designed. As I think Randy would tell the story, the Democratic Party is a threat to the natural rights the Constitution was created to protect. And the resulting paralysis of government is exactly what the framers would have wanted, in such condition.

Where I think Randy makes his mistake, is that the Constitution was the second form of government of the Republic. The Articles of Confederation were jettisoned because the central government proved too weak to protect the country and to promote prosperity. Political paralysis was not their goal and it was not their expectation.

Conservatives who agree with me that the Republic is broken would say that President Obama is acting like a king and that the federal government has become all-powerful. This is why the Republic is broken.

In the view of liberals, the Republican Party, which has political power only because of political gerrymandering that the United States Supreme Court should've prevented, is simply obstructionist and then gains politically from claiming that government cannot act. We are left at the mercy of corporate power and wealth and the result is stagnating wages, a declining standard of living for the middle class and growing inequality.

The job of the students is clear enough. Fix the Republic and if that proves impossible, design a new one.