Friday, January 18, 2013

Law professors may need civics courses, too

The Pro Say Blog, the blog of the Illinois Supreme Court Commission on Professionalism, ran a post this week by Suzanne Schmitz, a Professor Emeritus at the SIU School of Law, entitled "Why Care About Civics."

Professor Schmitz thinks we should care, and so do I.

One of her several sound suggestions as to how lawyers should encourage civics education is that lawyers should volunteer to help teach civics in the schools.

I suppose Professor Schmitz had high schools and grammar schools in mind. But I wonder if she might be interested in taking the message about the need and value of civics to the law schools -- Georgetown Law School in particular. One of her fellow professors appears to be in need of some remedial education.

Professor Seidman
A Georgetown constitutional law professor, Louis Michael Seidman, wrote an op-ed piece for the New York Times on December 31 entitled, "Let’s Give Up on the Constitution."

No, I didn't believe it, at first, either. A friend of mine sent me an email about the article, but he didn't include a link to the source. Besides, this friend is often in full high dudgeon about any number of things, most of which don't check out at The whole idea -- a constitutional law professor who has no use for the Constitution -- struck me as the sort of absurd thing The Onion might come up with on a slow day.

And then I saw a January 3 story by Debra Cassens Weiss on ABA Journal Law News Now, entitled "Law Prof Who Urged Abandoning the Constitution Gets Abusive and Threatening Emails." There really is a Professor Seidman; his Georgetown faculty bio identifies him as the Carmack Waterhouse Professor of Constitutional Law. He's a graduate of the University of Chicago and Harvard Law School. He clerked for Thurgood Marshall.

Apparently this Seidman guy was serious. I went and read the Times article.

Professor Seidman might benefit from Professor Schmitz's civics course. And a remedial course in history, too. Yes, the Constitutional Convention of 1787 was originally convened to consider amendments to the Articles of Confederation, not to write a whole new charter. For him, that was disobedience right from the outset. But, although amendments might only involve moving a comma here or changing a verb tense there, amendments can also be complete and total. (Seidman should track a shell bill through the Illinois General Assembly sometime.) And then, Seidman says, no sooner did we adopt the Constitution, than we began to ignore it.

Granted, as Seidman writes, in every question of national import since 1789 one side or the other (and sometimes both sides) have charged that the other was ignoring, or subverting the Constitution. That does not mean that the shouters are right. The genius of the Constitution has always been that it does not purport to address all situations. Rather, it provides the framework against which our policy decisions may be measured, evaluated, and sometimes even tempered and blunted or even rejected.

Seidman writes, "What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences."

Well, the words of the Pledge of Allegiance notwithstanding, America is not now, nor has it ever been, truly, "one nation" -- not like other nations. And I do not refer solely to federalism, to "E pluribus unum," although law professors shouldn't have to be reminded of such things. However, a typical nation is defined in terms of one particular people in one particular place. A motherland. A fatherland. The people living in that place belong to a single tribe. One ethnicity. No outsiders need apply. Case in point: A westerner can live in Japan. He can learn Japanese. He can eat Japanese foods. If he can hit a curve ball he may even become a hero to Japanese baseball fans. But he can not become Japanese. He will always be a gaijin.

But a Japanese person, or anyone else, can come to America and be an American. We aren't a homogenous people -- and we don't have to be because we are 'a nation of laws, not of men.' By that we mean that we are a nation built on principles and ideas, not on tribal identity. Thus, America is not "one nation" like other nations, where we can fall back on ties of kinship and blood to paper over our differences when these arise. What binds our nation together are our common ideas, about the equality of persons before the law, about equal opportunity, about worth and merit being the basis of advancement, not birth and money. That is what distinguishes us among the nations of the world. As former President Theodore Roosevelt wrote, just before his death in 1919, "we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin." The most important expression of our commonly shared ideas is our Constitution.

If we concede, for Professor Seidman's sake, that we haven't always scrupulously obeyed the Constitution, that does not mean we should then abandon it. Our history is certainly replete with examples of how we've failed to live up to our ideals (see, for just one example, our treatment of Japanese-American citizens in World War II), but that does not mean we should now jettison them. Our challenge going forward is to better live up to our founding principles -- as embodied in our Constitution.

If our laws are the timbers of our Ship of State, the Constitution surely is the keel. We can not abandon the keel without the ship falling apart. That "poetic piece of parchment" is central to what makes America the hope of the world. Properly understood -- and obeyed -- it will keep our Ship of State on course for many centuries to come.

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