So here’s* my contribution to a symposium on “originalism” as the mode of interpreting the Constitution that facilitates the maximization of the libertarian value of “negative liberty.” Everyone else in the symposium operates on a higher pay grade than I do when it comes to really knowing all about the controversies in the field of constitutional law right now. There’s Ilya Somin, Ed Whelan, and Hadley Arkes—all great minds and good men that you should take seriously before finally agreeing with me.
I never have taken a course in constitutional law or spent a day in law school. I teach a single class on “the rights” part of case law. My “teaching method” is a close reading of a relatively small number of opinions. And to encourage students in taking that approach seriously, a good part of my exams is the identification of quotes from opinions, followed by a pithy account of their significance in context.
I hardly even get any complaints on my student evaluations beyond everything is too tricky and two papers is two too many. Exceptions: One student complained that all the emphasis on what the opinions actually say, the quotes on exams, and so forth is not really preparing us for law school. My response: You would do well in law school even if you just skipped this class altogether. That’s because Berry College (in the political science major) has given you the gift of a high level of literacy And one of my minor learning objectives is to immunize you form being completely sucked in by the soul-sucking experience that is much of professional legal education.
Another complaint: “He occasionally makes it too clear that reading opinions isn’t as important as reading, say, Nietzsche.” Well, it isn’t. But the real complaint is that I occasionally make is that too high a percentage of key Court opinions these days is bad philosophy. Why? To some extent I agree with Justice Scalia that our justices would be better off more informed by the humility that comes through remembering that they’re just lawyers. The same might go sometimes for law professors who write excessively theoretical books.
Still, the careful study of key Court opinions is an indispensable component of liberal education in our country.