A student asked a perfectly reasonable, albeit unexpected, question in class last week during the discussion of a case.
I forget the case off-hand, perhaps Moore v. East Cleveland, in which the fight is over who gets to decide who "blood" (family) is, Grandma Moore or the government. The City Council had passed a housing ordinance limiting the number of people per household and was attempting to justify it on ground that overcrowding was bad and led to problems.
A prior case had held that as to unrelated people crowded into a house, like hippies and boarders, the government was within its rights to place limits.
Grandma Moore was only trying to shelter her grandbaby whose mother, her daughter, had died. We're talking family, not strangers like hippies and boarders.
The Court ruled that while housing density ordinances in general might be fine on health, safety and public welfare reasons, and thus a proper exercise of the police power, the ordinance in this case had overstepped an invisible line (in Con-Law all the lines are invisible, that's why we write them down, to make them visible) which was from here on in going to be marked with yellow lights and flashers, so law students like me'n'you don't forget they're there.
Although the truncated opinion appearing in our excellent Cohen & Varat casebook didn't say whether the Court had applied a low, medium, or high level of scrutiny, this student asked which level the Court applied in this case. I ask that question of students every chance I get. It seemed fair to be asked the same question in return.
When a student asks a question in class, the professor, me in this instance, has to do a quick mental calculation that goes something like this:
Is this a question that I know the answer to right off the bat, or do I need to check the case first to see if I can tell after a quick check.
I needed to check the case, and in doing so, noticed that it didn't provide an answer.
The Court, so far as I could tell, hadn't characterized this right of one family member to define who her blood relatives were as being fundamental and thus deserving of heightened scrutiny.
Or maybe the statute was irrational in that the means didn't properly serve the ends, arbitrary and capricious, in other words.
Sometimes it's not clear which test the Court is using, and sometimes the Court says its using one test, but upon analysis it appears to be using a higher level, stricter scrutiny test. The VMI case, U.S. v. Virginia is such a case.
Did Justice Ginsberg, in writing this opinion, which allowed women to enter the Virginia Military Academy, an all-male bastion since before the Civil War, use intermediate scrutiny, as claimed, or strict scrutiny, which is certainly the way it appears to a few Con-Law scholars.
And sometimes, as Justice Thurgood Marshall pointed out, high, intermediate, and low tests are arbitrary and capricious in themselves, as they exist only in our heads, not on the ground. Who is to say whether a right is fundamental or not. They're ALL fundamental to the person relying on it.
The other calculation the professor may make is to decide whether, even if he knows the answer off the bat or can figure it out, he should do the student's work. Which is better teaching, to satisfy the student's curiosity, perhaps, by giving a pat, or right, answer, or to say, "That's an interesting question, why don't you take a look into the matter and report back next week, telling us all what you've found.
That can be overdone and may be seen as discouraging questions from students, as in "Ah, this professor, he doesn't know anything; he's always asking us to do the work; if I don't ask the question, I won't have to do the work."
Sometimes it's not a bad idea to reason out loud to let students in on the reasoning process, some reasoning process. This is what they'll be doing soon enough, so why not de-mystify the process. It's not magic, it's just thinking.
Well, I've found a better way of teaching than either of those choices above, i.e. I answer or make the student research it against his or her will, and I'm going to reveal the secret here, for the first time anywhere.
When a student asks a question requiring some thinking and some looking up, don't parry the question, and don't give the pat answer. Give an unsatisfactory answer, instead, and see what happens.
So that's what I did, and as best I can recall, my answer was something like this:
Since I didn't see where the Court had said this claimed rights
violation implicated a fundamental right, nor did it seem a Footnote Four, Carolene exception (heightened scrutiny for textual violations, political game-playing, or stepping on powerless isolated minorities) I suggested that by default
it must have been deemed in this case to be a violation of the least-deferential-to-the-lawmaking-body test, the rational basis test, RBT.
Conceivably it did implicate textual rights in the sense that Amendment 9 protects unenumerated individual rights, but I'm not sure my answer said that, although I hope it did.
I saw the student who asked the question, incidentally, the next evening at the school dinner gala last Friday and he told me over a drink (We drink at SFLS, but only because we have to) that he was ticked off about a wrong answer I'd given to his question.
"Oh, yeah? What question wuz dat?" I wanted to know.
I'm from Noo Yawk and not used to being told I did something wrong in class, meaning in front of 38 students.
This student is feisty. Part of my job in class is have the student cut to the chase when presenting a case in class. I have a separate podium for student presenters at the front of the class, not too far from mine, so the student addresses the class, not the desk top. And I interrupt, just the way the Supreme Court justices do, if I think the student is failing to address the point our minds, my mind, at least, is up to. "Who won?" I might ask. Or, "What test?" (the same question the student asked me).
Only when I interrupted his quite proper presentation, this student said, "Wait a moment, I'm getting there!"
I'd jumped in too quickly.
He was getting there.
He protected himself, as any good public speaker or trial lawyer would who was developing his point.
I backed off and he continued, making the point, without unnecessary delay.
It was great.
I was very sorry I'd interrupted. I've got to watch that. Sometimes I need to be a little more patient. Old-hat to me requires time for people on their first run-through. Interruptions can be a real annoyance. Everybody has his or her own style for getting to the point. I know that. Sometimes I forget.
We spoke about it after class. He felt bad that maybe he'd stood up to the professor.
The professor wears the scars of four decades of trial experience in the trenches of the criminal and civil courts, not all of it nearly as pleasant as dealing with student questions in front of class.
"I thought it was wonderful," I told him. "It was a perfect trial lawyer instinct, to do that."
He had told me earlier (I have each student, on first presenting a case, introduce himself and state some goal in studying law, if possible) that his aim was to be a trial lawyer when he passed the Bar.
At the dinner event, at the bar, I recalled the incident with approval, underlining again how revealing it had been, in more ways than one.
"It was a defining moment for me," the student said.
"Good, it should have been," I replied, "Keep up the good work."
He'd learned how good he really was. He hadn't quite realized how good that was.
While reconstructing the classroom question in his head, I suggested that instead of going into it here and now, and risking a bar-fight, why doesn't he email me.
"I was going to," he said, but then said he wasn't sure he wanted to write me. He thought I might take it as challenging, etc., the usual law student paranoia when dealing with professors, which needs to be gotten rid of.
"No, go ahead, it's better that way," I reassured him. "Then I can figure out what I did wrong, or whether it was wrong." :)
Today, the day of this evening's class, the last of the semester, I received the following email.
* * *
"Recently in class I asked you about those rights that we as citizens often take for granted such as a right to privacy,the right to marry, the right to procreate, the right to free speech, etc., essentially the right to tell our neighbors and the government to MYOB.
The question went something like this? Do those rights which are either explicit or implicit in the Constitution receive strict scrutiny or mid level scrutiny by the Court, or does a rational basis test suffice?
I asked such a question with a forward looking agenda towards understanding the scrutiny levels one would need to analyze a law school exam question.
I was not satisfied with your answer and it bothered me all night and the next day.
So what did I do?
I researched the topic.
Naturally one should understand all three levels of scrutiny and what the Court has announced pertaining to where they fit and why they fit in that category.
Ok that was the easy part.
What did I learn along the way?
Namely which test would I choose and why--- depending of course on the issue.
I found myself to be in constant conflict with court, but what did I suspect?
Wow, was I not getting what this Con Law business is all about?
That's when it occurred to me--- in the past I represented labor unions, negotiating CBAs, handling grievances, and when I could not convince management that I was right and they were wrong, I would litigate issues in front of an Arbitrator or ALJ.
I would often argue that the CBA was a living and breathing document and that the words of the agreement should not always be taken strictly and literally, furthermore I would add, that as times change so must the interpretation of the agreement change when warranted.
After all I would argue someones job was in the balance and we should look at every possible way to come to a sensible conclusion.
The words in the agreement taken literally are cold, unimaginative, and uninspiring, --- a starting point, yes, to discuss matters, certainly not the end of the line.
There must be a better way to handle this.
Was it a persuasive argument?
More often than not,perhaps because management's counter argument went something like this---
We have the right to do this or that because the agreement says we can, or if the agreement is silent on those issue[s] then we have the right implicit in the agreement to do as we please.
Which is a stronger argument?
Open to interpretation of course.
The Constitution is a living breathing document that has survived over time because smart and courageous people have recognized that change as to interpretation is essential to sustain a nation that depends on its lifeline --- liberty--- to function well.
Thanks Prof for the blog and the space and your time."
* * *
Well, I'm sorry I gave any student a sleepless night.
I did a helluva teaching job that evening, didn't I?
Is this student going to be a great attorney, or am I dreaming!
* * *
And now, on another front, this question:
Regarding constitutional interpretation, is this constitutional scholar an Originalist, in agreement with Justice Scalia, who is an Originalist, or Textualist, or is the student an Evolutionist?
That's probably one you can answer without doing a lot of research.