Teaching Constitutional Law in 2025: Part 2
Last week on this blog, Professor Segall posed twenty questions about how to teach constitutional law at a time when the Supreme Court has been rapidly reshaping the landscape of legal doctrine in an ideologically conservative direction and the president--with no substantial resistance from the Court or Congress--is implementing an authoritarian agenda. To my mind, the most pressing of the questions Professor Segall raises are numbers 1, 2, 6, and 8, as they all relate specifically to the unique threat that Donald Trump and his administration pose to constitutional democracy. The other questions are important and difficult, but questions like those could have been asked at virtually any time in our history. Although the pace of doctrinal change has picked up in recent years, the notion that the Court moves doctrine in accordance with its ideological druthers is more or less a constant--as Professor Segall's own scholarship shows.
Accordingly, for me the main difficulty is figuring out how to integrate the kinds of materials that are perennial mainstays of the constitutional course--judicial review, federalism, separation of powers, equal protection, enumerated and unenumerated rights, etc.--with materials that speak to the current moment. Just as Professor Segall asks questions without providing answers, I don't have a definitive solution to that challenge, but I do have some thoughts.
At Cornell, we teach constitutional law to first-semester first-year law students. That timing is both an opportunity and a challenge. It's an opportunity because so much of the subject matter of constitutional law is exciting to new law students and more familiar than the material they are learning about in some of their other classes. It's a challenge because most constitutional law casebooks--including my own--are written on the assumption that students will be encountering the material as second-semester 1Ls or 2Ls and so will have already developed some rudimentary lawyering skills, including how to read cases and extract from them the key legal rules and principles.
About a decade ago, I started a practice of beginning each class with about five to ten minutes of "Constitutional Law in the News." I ask students to volunteer an issue in the news that raises a constitutional question and then we discuss it briefly. Some days no one volunteers, and on those days I'll raise an issue myself. Other days someone will raise an issue that is better suited for later in the semester, when the students will have read the relevant background material. But whatever we end up discussing, Con Law in the News serves to keep students engaged by demonstrating the relevance of what they're learning to current events.
These days, Con Law in the News serves as a way of bridging the questions about the threat to constitutional democracy from the Trump administration and the more timeless materials of constitutional law. I also try to bridge those two sets of issues by introducing current events from the very beginning of the class. Each year, the assignment for the first day of class consists of reading the Constitution and then considering a real-world scenario followed by some questions that tie the scenario to issues we will be covering during the semester.
For the balance of this essay, I offer this coming semester's first assignment.
Read the Constitution. Come to class prepared to discuss the following:
As you just read, the first sentence of Section 1 of the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court ruled that a man who was born in the United States to parents who were not citizens was himself a citizen in light of that language. The Court explained that, in light of the longstanding historical understanding, the phrase “subject to the jurisdiction thereof” carves out a narrow exception to the principle of birthright citizenship for children born to invading armies, to foreign ambassadors, and to members of Native American tribes. (A federal statute passed in 1924 now confers birthright citizenship on tribal members.) Because Wong Kim Ark did not fit within any of those exceptions, he was recognized as a U.S. citizen.
Nonetheless, on the first day of his second term in office, President Trump signed an executive order that purports to deny U.S. citizenship to any person born in the United States on or after February 19, 2025
“(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
That executive order was challenged in court in multiple lawsuits. In defending the executive order, the Trump administration has advanced two interrelated arguments. First, it contends that the Wong Kim Ark precedent does not apply to the exclusions in the executive order because Wong Kim Ark’s parents were not merely temporarily present in the U.S. Second, the administration contends that “subject to the jurisdiction thereof” connotes a broader exception for people (and babies born to those people) who owe political allegiance to another sovereign.
Every court to have addressed the merits thus far has ruled that it is unconstitutional. This past June, the U.S. Supreme Court ruled in Trump v. Casa that a district court could not enjoin the executive order on a nationwide basis in a case that had not been certified as a class action, but the Court did not address the merits. Cases that are brought as class actions are now proceeding in the lower federal courts.
Here are some questions for you to ponder in advance of our discussion:
(1) Both the plaintiffs challenging the executive order and the Trump administration defending it look to history to determine the meaning of “subject to the jurisdiction thereof.” Why? Is it always appropriate to consult history to determine the meaning of a contested constitutional term? If not, when is it appropriate and when isn’t it?
(2) Everyone agrees that the primary purpose of the citizenship clause of Section 1 of the Fourteenth Amendment was to overrule the Supreme Court’s decision in Dred Scott v. Sandford, 60 U.S. 393 (1857), which had held that African Americans were not and could not be U.S. citizens. (Scott was enslaved from birth but the Court’s rationale applied to “free persons of color” as well.) However, the language of the Fourteenth Amendment (both in its citizenship clause and in the rest of Section 1) is not, by its terms, limited to persons formerly enslaved or their descendants. Is the original primary purpose of the citizenship clause nonetheless relevant to determining its contemporary scope? If so, how?
(3) As noted above, the Trump administration has attempted to argue that Wong Kim Ark, properly read, does not render the executive order unconstitutional. Suppose that’s wrong. If the administration is nonetheless correct that the exception for persons not subject to the jurisdiction of the United States was originally understood to be broader than the Supreme Court said it was in Wong Kim Ark, why should the courts follow the approach of Wong Kim Ark rather than the better reading of history? I’m not suggesting that the Trump administration actually has the better reading of history. I’m asking why one should subordinate a better reading—assuming for the sake of argument that there is one—to a precedent that botched the history. Put differently, I’m asking what gives precedent (sometimes called stare decisis) its force. As you’re probably aware, in recent years, the Supreme Court has overruled important precedents regarding abortion, race-based affirmative action, and deference to administrative agencies. If the Court could overrule those decisions, why can’t it overrule Wong Kim Ark?
(4) Why are questions about the validity of the birthright citizenship executive order and other executive orders for courts to decide?
(5) There is some indication that the Trump administration has been disregarding or not complying in good faith with orders of lower courts, most prominently in cases involving removal of non-citizens. President Trump has stated, however, that he complies with Supreme Court orders. Is there a constitutional basis for courts to issue orders to the president and other executive branch officials? If so, what is it? Does it differ for the Supreme Court and lower federal courts?
You are not expected to have detailed answers to any of the foregoing questions or to do any outside research. Just think about them a little before class.
-- Michael C. Dorf