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What To Do When You're Stopped By Police - The ACLU & Elon James White

What To Do When You're Stopped By Police - The ACLU & Elon James White

Know Anyone Who Thinks Racial Profiling Is Exaggerated? Watch This, And Tell Me When Your Jaw Drops.

This video clearly demonstrates how racist America is as a country and how far we have to go to become a country that is civilized and actually values equal justice. We must not rest until this goal is achieved. I do not want my great grandchildren to live in a country like we have today. I wish for them to live in a country where differences of race and culture are not ignored but valued as a part of what makes America great.

Monday, February 26, 2024

Opinion | How Do You Teach Constitutional Law With This Supreme Court? - The New York Times

The Crisis in Teaching Constitutional Law

A hand pulls a thick book out of a stack of similar others on a bookshelf. The book is labeled “Bale” and “United States Supreme Court Reports. Lawyers Edition.”
Mark Jayson Quines for The New York Times

"If you attended law school at any time over the past half-century, your course in constitutional law likely followed a well-worn path.

First you learned the basics: the Supreme Court’s power to say what the Constitution means. Then you read and discussed cases that set precedents for different parts of the Constitution — the commerce clause, presidential powers, due process, equal protection and so on. Finally you studied how the court balances individual liberties against the government’s need to act in the public interest.

It was all based on an underlying premise that has long bound together everyone involved in the project of training the next generation of lawyers: The Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity, than about imposing a partisan agenda.

The premise no longer holds today. Many in the legal world still believed in the old virtues even after Bush v. Gore, the 5-to-4 ruling that effectively decided the 2000 presidential election on what appeared to many Americans to be partisan grounds. But now, the court’s hard-right supermajority, installed in recent years through a combination of hypocrisy and sheer partisan muscle, has eviscerated any consensus.

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way.

“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, a professor at the University of Michigan law school, told me.

Rebecca Brown, at the University of Southern California, has been teaching constitutional law for 35 years. “While I was working on my syllabus for this course, I literally burst into tears,” she told me. “I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.”

At least she’s still trying. Larry Kramer, a widely-respected legal scholar and historian who was my constitutional law professor at N.Y.U. 20 years ago, called it quits in 2008, on the heels of the Supreme Court’s divisive decision in District of Columbia v. Heller, which struck down decades of precedent to declare for the first time that the Second Amendment protects an individual right to bear arms. Many observers felt that Heller’s majority opinion, by Justice Antonin Scalia, intentionally warped history to reach a preordained result.

Professor Kramer was the dean of Stanford law school at the time, but after the Heller ruling, he told me recently, “I couldn’t stand up in front of the class and pretend the students should take the court seriously in terms of legal analysis.” First-year law students, he felt, “should be taught by someone who still believed in what the court did.”

A profoundly different kind of court

Constitutional-law education is in a crisis, Justin Driver, a professor at Yale who has taught the subject for 15 years, told me.

“One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means,” he said. “And the degree of difficulty of that proposition has never been higher.”

The court has always operated in a space between law and politics, said Michael Klarman, a Harvard professor and constitutional historian in his 37th year of teaching. But the justices’ votes used to be less predictable; they have never been so starkly divided along partisan lines as they are now.

“What’s changed is that today’s Republican-appointed justices are much more conservative than any justices in the last hundred years,” Professor Klarman said, “and they represent the views of a Republican Party that is much more extreme than anything we’ve been accustomed to in the last hundred years.”

Even more troubling than the court’s radical rulings, from a teacher’s perspective, is the rapid and often unprincipled manner in which the justices reach them.

“What feels different at this moment is the ambition and the velocity, how fast and aggressively it’s happening,” said Barry Friedman, a longtime N.Y.U. law professor and co-author of a book on judicial decisionmaking.

Take one of the most glaring recent examples, the court’s June 2022 decision striking down a century-old New York law requiring gun owners to obtain a permit to carry a gun in public.

New York State Rifle & Pistol Association, Inc. v. Bruen was decided 6 to 3, with all the Republican-appointed justices joining the majority opinion by Justice Clarence Thomas. It was the court’s most transformative gun-rights case since Heller, and like that earlier case it featured the right-wing justices playing amateur historians, cherry-picking and distorting evidence from decades or centuries ago in order to justify their pre-existing opinions — a practice real historians refer to derisively as “law-office history.”

But Bruen went even further than Heller, which at least recognized that the right to bear arms was not unlimited, and that most existing gun laws were perfectly constitutional. In Bruen, Justice Thomas wrote that the Second Amendment confers an “unqualified” right, and therefore that laws restricting guns are presumptively unconstitutional unless they can be shown to be “part of the historical tradition that delimits the outer bounds” of that right. In other words, it doesn’t matter how much evidence a 21st-century legislature might marshal to justify its efforts to curb gun violence; all that matters is whether a similar law existed hundreds of years ago.

“It sounds almost crazy when you put it that way, doesn’t it?” said Lee Epstein, a professor at the University of Southern California and principal investigator for the Supreme Court Database, a long-running project to catalog and analyze every vote by every justice. “It’s made-up history. No sense of judicial humility. No sense of letting governments work out their problems.”

The Bruen decision invalidated dozens of state and federal laws, upended longstanding legal regimes, and befuddled lower-court judges who have tried to apply it in the absence of a staff of trained historians. It also left many law professors (not to mention historians) speechless.

“Flat-out bonkers,” said Sandy Levinson, a professor at the University of Texas law school and author of multiple books on the Constitution. “I try to imagine, what if this were a seminar paper? Who knows what grade you’d give it? It’s so strange as an exercise in what we might call legal reasoning. But it’s not a seminar paper; it’s a majority opinion of the United States Supreme Court. So what am I supposed to do with that?”

Professor Brown, at U.S.C., said the court had been surprisingly consistent over the centuries in how it balanced liberties with restrictions. “Bruen radically upended that entire framework,” she said. “So how do you teach students the relationship of a free person to their government?”

Most of the professors I spoke to for this article are politically liberal, as are most constitutional law professors in the country, particularly at the most prominent law schools. Still, the concerns I heard weren’t restricted to left-leaning legal scholars. Michael McConnell, a conservative former federal appeals court judge who teaches at Stanford, was fine with the ultimate result in the New York gun case, but he rejected the legal reasoning the court used to get there. “Bruen is not right under its own principles,” he told me. “It purports to be applying originalist and historicist interpretation, and it gets it wrong.”

In short, Bruen only makes sense when considered as a partisan political ruling: The modern right has long supported the elimination of gun restrictions, and the court agreed to decide the case only after it secured its current right-wing supermajority.

Professor Friedman, of N.Y.U., said, “When you combine overruling with no appreciable change or explanation other than that the membership of the court has changed, what you have is naked power.”

A new generation’s lower expectations

If the politicization of the Supreme Court is jarring to professors, it’s less so to the students starting law school now, most of whom weren’t born when Bush v. Gore was handed down. They were still in college, or even high school, when Senate Republicans held a Supreme Court seat hostage for more than a year to ensure it would be filled by a conservative justice rather than a moderate liberal.

In contrast, most of today’s top constitutional scholars came of age in the heyday of the Supreme Court’s popularity.

“The people who taught us were all Warren Court people,” said Pam Karlan, a constitutional and voting-rights expert at Stanford law school, referring to Chief Justice Earl Warren, who through the 1950s and 1960s led a court of both Democratic and Republican appointees to expand civil rights, equalize political representation and liberalize the criminal justice system. “They’d clerked on that court. They valorized it. There was this notion that judges were these heroes who would save us all. Our students do not have that view.”

In other words, the Roberts court — and the hardball politics that went into shaping and sustaining it — is the only court that law students in 2024 have ever known. They entered law school with the cynicism that it took someone like Larry Kramer decades to earn.

Still, today’s students are tomorrow’s lawyers, and the task of educating them must go on, which leads to some awkward but necessary conversations that did not used to be part of the standard constitutional law curriculum.

Stanford’s Professor McConnell recalled a recent exchange in one of his classes. “I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand and he asks, ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.”

Others I spoke to agreed with this assessment. “We’re witnessing a transformation in the New Deal consensus,” said Mark Graber, a leading constitutional scholar and Regents professor at the University of Maryland. “Our students are increasingly rejecting it, progressives and conservatives. They are less judicial supremacists. They are more willing to question courts.” He added, “We have to figure out what the new world is going to look like. I don’t know.”

What role the Supreme Court will play in that new world is yet to be determined. Laurence Tribe, the longtime Harvard law professor and perhaps the country’s pre-eminent constitutional scholar, is not optimistic. The current court is “off on a jag of its own,” he said. “Unless and until it changes, the court will be seen as an increasingly bizarre institution that hasn’t caught up with the nature of law itself.”

And yet the professors I spoke to were not ready to give up on the court, for themselves as much as for their students.

“You’re not just ministering to them, you’re also trying to restore your own faith,” Melissa Murray, who teaches constitutional law at N.Y.U., told me. “This is a place for institutionalists. Deep down, they want to believe. Otherwise we wouldn’t be doing this.”

Opinion | How Do You Teach Constitutional Law With This Supreme Court? - The New York Times

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