The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Hopefully the White House can refrain from creating any new constitutional conundrums for a semester.
One benefit of teaching in a political science department with colleagues who also teach law-related subjects is that I have the freedom to create some unusual course offerings. In the spring, I taught a class on "Constitutional Difficulties in the Age of Trump." Given student demand, I'm now teaching it again this fall (presumably for the last time).
There are downsides to teaching about Trump. He could blow up my syllabus with a tweetstorm that seems impossible to ignore. The class moves quickly through a lot of disparate material, leaving little time for a deep exploration of any particular area of constitutional law. There are topics of passing interest, that will hopefully be once again relegated to the realm of experts in a few years, if not a few months. There is, of course, the risk that students will be so absorbed in the emotional political and policy disputes surrounding the Trump presidency that they will not be able to think critically about the difficult constitutional issues that also surround this presidency.
Fortunately, students seem able to rise to the challenge. Over the course of the semester, they read both critics and supporters of the administration. They are required to write papers that defend positions that are both consonant with the administration's objectives and that run counter to them. They learn that constitutional issues are generally more complicated than Twitter or cable news would have you believe, and they learn that it is possible to distinguish one's views about a particular constitutional rule from one's views about how a particular politician exercises discretion under that rule.
For undergraduates at least, there is something to be said for simply trying to make them more informed and critically engaged citizens. They are eager to better understand these disputes, and fortunately there are resources to help them achieve that. There is a cornucopia of high-quality, accessible, short commentary on current constitutional controversies from sites ranging from the Volokh Conspiracy to Lawfare to Just Security to Take Care. The class leans heavily on the hundreds of freely available excerpts of primary documents in American constitutionalism, from Supreme Court opinions to Office of Legal Counsel opinions to congressional hearings to state and lower court opinions, that my co-authors and I have generated as a companion to our casebook. Those materials can be found here. It is also a reminder that the "constitutional canon" regarding separation of powers issues includes a lot more than Supreme Court cases.
The Trump presidency might create the need to talk about such unusual constitutional issues as the 25th Amendment, self-pardons, and the First Amendment implications of blocking people on Twitter, but it is also an opportunity to draw students into a more serious engagement with Article II and the separation of powers. Given our polarized politics, divided electorate, and the eagerness of Democratic presidential candidates to issue their own creative executive orders, the basic constitutional challenges of presidential power don't seem likely to be going away anytime soon.
This semester's syllabus (with hyperlinks to most of the readings) can be found here.