Bench Memos

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Breaking News—Law School Requires Study of the Actual Constitution!


The George Mason University School of Law has instituted a requirement that first-year law students take a course, titled The Founders’ Constitution, that (as this course website explains) “will require students to read a large number of important original legal sources familiar to the founding generation, ranging from Magna Carta and the English Bill of Rights to the Federalist (and Anti-Federalist) Papers, along with constitutional debates at the Philadelphia Convention and in the First Congress.”  (HT:  Volokh conspirator, and GMU law professor, David Bernstein.)   

Those who have not suffered the detriment of a modern legal education may not find this newsworthy.  Surely, they might suppose, courses in constitutional law must require students to immerse themselves in study of the founding materials.  Alas, so-called constitutional law has come to be thought to be synonymous with the last few decades of Supreme Court decisionmaking, and I’d be willing to bet that the typical constitutional-law course pays about the same attention to the founding materials as my 1984 Harvard Law School course with Larry Tribe did—which is to say, zero. (Update:  I’m pleased to report that reliable sources tell me that the situation is not nearly as bad as in the mid-1980s, largely as a result of the influence of Justice Scalia.) One reason for this neglect is not difficult to fathom:  familiarity with the founding materials is unlikely to induce agreement with, much less respect for, the Court’s modern understanding of its role—including, say, the myth of judicial supremacy asserted in the 1958 ruling in Cooper v. Aaron (see This Week for Sept. 29, 1958) and the infamous mystery passage in Planned Parenthood v. Casey (see This Week for June 29, 1992).

According to the course website, “While a few law schools offer narrowly-focused elective classes dealing with constitutional history, none has a comprehensive, required course comparable to The Founders’ Constitution.”  Congratulations to GMU law school and its dean Daniel Polsby for having the courage and clear thinking to inaugurate the course.  Along with its superb faculty, this course helps make GMU law school genuinely distinctive. 

Tags: Whelan


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