Something I Learned In My 1L Constitutional Law Class

This draft does an excellent job of clearing away the brush so that we can see clearly the central issue on which the next draft can focus. If we take legal realism seriously—which in the rest of law school, as we have discussed, we absolutely do—then we have as axioms Chief Justice Hughes' statement that "the Constitution of the United States means what five votes on the Supreme Court say it means," and that the opinions collected in the US Reports are rationalizations for results otherwise arrived at. How to square that with our belief in the rule of law and the persistence of our individual and civil rights is your central problem, as it is for every thoughtful student in our quite exceptionally realist system of legal education.

But the Constitutional Law course often proceeds as though the problem were somehow not acute, were being magically solved somewhere off the set, or were somehow less important than "learning the law." That whole conception is deficient, which is why a sensible teacher cannot carry it through, and winds up—under your questioning—having to treat the matter as one of "hope." There is, however, more to it, or there had better be. So that's the next draft, it seems to me.