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    « Veritas in trouble | Main | ICLR cuts out the middleman »
    Friday
    Jan272017

    Back to law school in the first week of Trump's America

    A bad thing has happened and studying law is full of angst ... What's happening to the Constitution and the rule of law ... Dirty old Supreme Court decisions are new again ... Constitutional malleability ... An Australian at Harvard ... Hannah Ryan's letter from Cambridge

    Harvard Law School: lecturer unable to eat

    "Welcome to First Amendment, also known as the only class that's going to matter for the next four years." 

    The students laugh, and the professor dives straight into the cases. It's the first day of the Spring Semester at Harvard Law School, and the fourth day of the reign of President Donald J. Trump. Unfortunately, school is no sanctuary from the recent dark turn in America's politics. 

    My other teachers might quarrel with the First Amendment professor's claim to exclusive relevance. They're all suffering a surplus of it at the moment. A constellation of courses I chose months ago now seems chillingly topical - Government Secrecy, Contemporary Issues in Intelligence Gathering, American Democracy. 

    Even when we're not talking about it, politics is unmistakably there. One professor asks a student to give him the facts of the case. 

    "Just the facts," he clarifies. "Not the alternative facts." 

    It's there even at yoga class, usually a good way to calm down after watching cable TV. At the Harvard gym, the instructor tells us to get into Warrior 1. "I'm going to need this pose for the next four years," she jokes. 

    It's not just the snow on the ground and bare branches that make the early days of the spring semester radically different to the beginnings of Fall Semester last August. Back then, new students were treated to an audience with Merrick Garland, who we supposed might be the next Supreme Court justice.

    In my class on mass incarceration, students and teachers alike spoke in optimistic tones, wondering if we might be able to share our policy ideas with the transition team. And at each Wednesday afternoon class, the students in my political journalism workshop -  even the Tory - were in furious agreement: Donald Trump could not, and would not, be President.

    Honestly, it was fun. 

    Now the very bad thing has happened, and studying law is an angstier pursuit than it used to be. Some of the assumptions underpinning our degrees and future profession are looking a little shaky now - the rule of law and the Constitution, to give two small examples.  

    Even if those things survive the next four years, what we learn in class still gives us plenty to worry about. One case on the constitutional law syllabus last semester was called Korematsu. It turns out that during WWII the Supreme Court said the internment of Japanese-Americans was perfectly fine. A brief summary of the reasoning: oh, it's for national security? Go right ahead.  

    While Korematsu is a dirty word in constitutional circles, it's never been overturned. In this new era, there are signs it might be back in vogue: a Trump hanger-on has cited it as bolstering the constitutionality of a Muslim registry.  

    This semester, the very first case we read in First Amendment is Minersville School District v Gobitis. Here are the facts: back in 1940, some Jehovah's Witness children objected to school regulations obliging them to recite the pledge of allegiance and to salute the American flag. To worship "graven images" was forbidden by their religion, they argued. 

    The Supreme Court couldn't see a First Amendment problem. "We are dealing with an interest inferior to none in the hierarchy of legal values," wrote Justice Frankfurter. "National unity is the basis of national security." Mandated patriotism was perfectly legitimate. 

    In the aftermath of the decision, JWs were accused of being Nazi collaborators and found themselves the targets of abuse. One sheriff in the Deep South refused to intervene when he saw a mob begin to attack. His explanation: "They're traitors - the Supreme Court says so. Ain't you heard?" 

    Three years later, after a personnel shuffle, the court changed its mind. But the malleability of the Constitution in the hands of the nine justices, and the fact that Trump is going to announce his appointment to Scalia's old seat imminently, is enough to give you the heebie-jeebies. 

    Beyond what we learn in class, the election raises uncomfortable questions about the institution itself. It was clear where we collectively stood on the election. Obama was one of us: before he was the first black President of the United States, he was the first black President of the Harvard Law Review. As we watched the debates in the Harvard Pub, we booed when Trump defended stop-and-frisk and cheered when Clinton defended abortion rights.  

    In the week following November 8, the shock was visible: professors didn't even try to teach their prepared material, preferring to use class time to discuss what had happened - like group therapy with no resolution. Exams and due dates were postponed. Students cried silently though class. One lecturer confessed to being unable to eat. 

    As the immediate visceral shock has faded, a longer-term problem has crystallised. Trumpism is anti-expert and anti-fact. These days, truth seems irrelevant.

    A popular explanation for the triumph of Trumpism is the isolation and condescension of coastal elites. But Harvard trades in facts and expertise. At orientation, one speaker told the incoming law students: "The race is over, you've already won."

    If by chance some students weren't coastal elites before they enrolled, they sure are by the time they leave. It's possible to understand the election result as a rejection of everything Harvard stands for. So what is the role of this place in resisting?  

    Prof Tribe: taking action against Trump's emoluments

    For his part, Professor Laurence Tribe is going for good old-fashioned constitutional litigation. He's suing Donald Trump for violating the Constitution's emoluments clause, which has shot to fame in recent months.

    Former Dean Elena Kagan will play her role on the Supreme Court, and erstwhile professor Elizabeth Warren will be on the attack in the Senate. At the Law School, Dean Martha Minow is stepping down, telling the Harvard Law Record: "I want to participate in the events of the day."

    That means that somebody new will have to decide what we can do in the classroom, apart from making jokes, about this new world we inhabit. 

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