Teaching Constitutional Law in the Trump Era
I am currently working on a law review article for a University of Pittsburgh Law School symposium on legal education. The main thrust of the piece is detailing the challenges of teaching constitutional law in a legal realist world (or as a legal realist law professor). At the end of the article, I also talk about the unique challenges Donald J. Trump brings to the teaching of constitutional law. In this blog post, I'll first lay out those challenges and then offer a few tentative thoughts on how one should teach constitutional law in the Trump era.
The rise of Donald Trump and his movement have brought new and difficult challenges to the teaching of constitutional law because of how polarizing he is and how many constitutional norms he has simply crushed. One law professor said the following:
Like so much else, teaching Constitutional Law won’t be the same after the presidency of Donald Trump. At least it shouldn’t be.…. Trump’s behavior triggered novel consideration of dormant constitutional provisions, trashed long-standing constitutional norms and conventions, and even challenged basic American constitutional ideals. And the enduring loyalty of his supporters notwithstanding these assaults raises existential questions for the future of American constitutional democracy.
Erwin Chemerinsky has said
How do we teach the unique events of the last year without sounding like we are against Trump? We’ve never seen anything like what occurred on January 6th. We’ve never seen anything like the attempt to use the John Eastman memo to invalidate an election. We’ve never seen in this country’s history a candidate who lost the presidency, continuing to claim victory, let alone the insurrection on January 6th. And yet as we teach all of that, does it not sound like we’re taking a political position and whatever students we have who voted for Donald Trump would see us as just expressing sour grapes about his views. How do we teach that material?
In addition to the difficulties caused by his misbehavior, the three justices Trump put on the Court have ushered in enormous changes in constitutional law in a short period of time. It is a probably a bit premature to look at this problem with the right
perspective but, at a minimum, during his four years in office, and then his
second run at being President, the Supreme Court overturned and overhauled some
of this country’s most consequential constitutional law precedents, on matters including
abortion, affirmative action, gun control, religious liberty, and the
separation of powers. Constitutional law professors must
acknowledge that, although the Court has consistently shifted its positions
over the years on most litigated constitutional provisions, it is
quite rare for the Court to overturn and change so many landmark cases so quickly. The implications, consequences, and difficulties raised
by that overhauling, along with Trump's egregious behavior, need to be discussed in any of the foundational
constitutional law classes.
constitutional law professors have to appear agnostic or neutral about Donald
Trump in the classroom? I do not have clear or well-thought-out answers to this difficult question. My
intuition is that, because I see Trump as a serious threat to the constitutional
order in ways unlike any past President, I
do not think we should avoid the elephant in the room. How to discuss the Trump
Presidency, however, without being overly partisan in the classroom is quite difficult.
One idea is to make sure that students who may be Trump supporters are brought into the classroom conversation early and often and, most importantly, with respect. That may well require deep breaths and enormous patience on the part of the teacher, but I do not see any reasonable alternative. The space needs to be safe for those students regardless of how much one despises Donald Trump.
Another tentative idea is for law professors to explain to the students that the Trump Presidency and its aftermath are unlike anything that came before him. This is tricky but I think even Trump supporters in law school would not condone the insults he threw at his primary opponents that were not even suitable for the schoolyard, much less nationally televised debates. He lied consistently on national television in real time and one can find as many examples as one wants of that behavior. My favorite is his telling his audience that CNN turned off the cameras when CNN did not do that and denied it in real time, and then Trump repeatedly said it over and over.
Of course, there is no shortage of constitutional implications for much of Trump's behavior. The Muslim Ban, the overuse of acting positions high up in the executive branch to avoid Senate confirmation, and his executive agencies' obsession with being "anti-woke" on issues of LGBTQ rights and abortion all raise serious legal issues. The list goes on and on. I think the best a professor can probably do is identify where Trump's behavior, both in and out of office, is relevant to cases being discussed in class or related constitutional issues, tell the truth as you see it, but leave plenty of space for students to disagree and hopefully engage with each other in a civil and productive manner.
The hard part comes after the students are finished when one might be tempted to be a little more opinionated than normal when teaching the class given Trump's uniquely terrible behavior. I have no strong views on this but I expect that legal academics will be wrestling with the issue quite a bit for the foreseeable future. My instinct is this is one place where maybe we should be setting the record straight but, of course, doing so in a way that does not stifle future classroom debates might be challenging.
Donald Trump may well be breaking this country apart. Only time will tell. But there can be no question his behavior raises difficult questions about how to teach constitutional law. I hope the academy can find a productive way to discuss and debate the serious difficulties law professors face teaching constitutional law in the era of Trump.