Outside Counsel

I've been trying to come up with a historical equivalent to what is going on in the Republican Party right now, and I think I have it. The last time a major party Presidential candidate was this loathed by the party establishment was 1964: Goldwater vs. Rockefeller. There are, of course, some important distinctions. For openers, back in '64 the process was not driven by primaries (and caucuses) in anything like the way it is today, for example.  AuH2O was the ideologue/Rocky was the "pragmatic" choice. Goldwater was in at least some sense the candidate of the disaffected and the "electable" candidates, who also included Scranton were far more mainstream. In this weird historical alternate universe the part of Mitt Romney was played by Richard Nixon. In some ways the political lines that were drawn in '64 still exist in a weird trench war in which gigantic losses are sustained to advance or retreat a foot or so at a time.

It came to me as I was preparing for last night's ConLaw class. I think the model I devised for this class is working out pretty well. What we are doing is spending a session or two working our way through each Article of the Constitution, followed by a lecture parsing a few important cases. I'm using PowerPoint, which I am ordinarily loath to do, and I am not having them read the cases we discuss in class independently-- we work through them together. So, for example, for Article I we focused on McCullough v. Maryland. Last night was spent on Youngstown Tube. After we have worked through the illustrative cases I assign a more or less contemporary case and have them write a short paper. For Article I they wrote about National Federation of Independent Business v. Sebelius. This week they are going to read and write about Hamdan v. Rumsfeld. My thinking is that just throwing case law at the students would encourage a reductive analytical process. I don't want the students to read these decisions with a view towards trying to tease out a holding-- I want them to see where in the Constitution the issue being addressed comes from, and to track the reasoning that leads the court to the its conclusion. As a Legal Realist I also want them to see that outcomes matter almost as much as the process, and that cases are decided on factually specific circumstances.

One of the things that I am noticing as I prepare for class is how much of my own Constitutional Law analytical model was formed by the Nixon years. Of course, part of that is that a goodly portion of my Constitutional Law analytical model comes from Lawrence Tribe's American Constitutional Law, which I am now coming to realize is sort of the Frampton Comes Alive of constitutional jurisprudence for lawyers my age.