From TPM Reader JH …
Thanks for publishing so much back and forth. Apparently we’re all elite lawyers who read TPM! I’m not sure where I fall in that – practiced at an “elite” DC firm in my younger years, then stopped practicing for a bit working in government, and then have been a GC or in-house at a handful of small-ish tech firms in the bay area.
Anyway – this stood out to me in one of the replies you posted: “A category difference in simply manufacturing new constitutional law in cases where the constitution is simply as clear as it can be.”
At least when I was in law school in the late ’00s, there was an attitude that “CONSTITUTIONAL LAW” was reserved for absolutely the smartest and most talented students. And, only the smartest professors — in my case, Noah Feldman (not yet at Harvard) and Kenji Yoshini were those people. There was no such thing as “clear as it can be” — only the smartest, most scholarly, most academic students and faculty should be taken seriously thinking deeply about the constitution.
But your point is the right one – Constitutional law, in some non-trivial sense, should be the easiest. ERISA law, a nightmare! The Constitution? Anyone (lawyer or not, Ivy league degree or not), should be able to read the constitution and suss out its general meaning. Are there ambiguities? Of course! Are there technical terms of art that the average Joe might need help understanding? Obviously! But if you read it, it’s mostly pretty clear!
The problem – as you’ve identified – is that in recent decades we have treated Supreme Court appointments, and the ability to read and interpret the Constitution, as extremely taxing legal challenges. In law school, we are trained primarily on the most difficult and complex questions — and so there is a bias towards assuming that *every* Con law question must also be difficult and complex. But most of them are easy! (Birth right citizenship, presidential immunity). The legal academy seems to make a logical error – the constitutional questions we study are really hard, so all constitutional questions are hard – that is really ingrained in how the field (elite and non-elite alike) approach this.
