Spartan Lawyer

Winter 2017

Professor Brian Kalt is a national expert on constitutional law hypotheticals – How can the United States president be removed from office? Can he be prosecuted while in office? Can he pardon himself? His recent op-eds have appeared in the Wall Street Journal, Foreign Policy, and New York Magazine, and he has been quoted prominently by CNN, USA Today, Yahoo News, and Vox.

Many law students are fully engaged in the political issues of the day, and so they come to law school keen to study constitutional law. They look forward to learning more about issues like abortion, affirmative action, free speech, marriage equality, the right to die, the Second Amendment, and many others. When I taught Constitutional Law I (a first year, second semester course), I often saw that enthusiasm turn to disappointment. They were interested in constitutional rights, which are covered in Constitutional Law II; Constitutional Law I is the “structure” course, concentrating on less showy issues, like justiciability, the commerce clause, federalism, and the separation of powers.

In recent years, though, constitutional structure has gotten more newsworthy. It began with the legal fight over Obamacare. Was it proper under the commerce clause? The taxing power? Suddenly, laypeople had strong opinions about such things, and about the proper bounds of presidential and judicial power. In the last year, more obscure topics like presidential pardons, impeachment, emoluments, and the vagaries of the electoral college have become hot-button issues.

What I tried to teach my students in Constitutional Law I, and what I strive to find in my scholarship (which focuses on structural constitutional issues) are real answers instead of arguments made for partisan advantage. Achieving this goal requires examining questions before they are in the news; before you know which party will benefit if the courts adopt your theory.

Finding such neutral principles is the easy part. Sticking to those principles when things get real—when your hypothetical issues suddenly aren’t hypothetical anymore—is harder. For one thing, few members of the general public will appreciate your adherence to principle. Most people care first and foremost about the bottom line: Under your interpretation of the Constitution, who wins? My side or the bad guys? If the answer is “my side” they may embrace your theories. If the answer is “the bad guys,” they may chide you for being a bad guy yourself.

Some lawyers approach constitutional law this way. But our training teaches us that there are such things as legal rules, separate from the facts to which they will be applied. Our system requires that the same rules apply to us as to our adversaries.

This is not to say that each question in constitutional law only has one answer. There are so many different interpretive techniques in constitutional law that there almost never is only one answer. When you represent a client, you have a duty to deploy whatever arguments will work best to win your case.

But when constitutional law issues arise in the news rather than in our practices, lawyers have a responsibility to the law, not to our preferred political parties. Deploying the interpretive techniques that we believe in, not just the ones that will bring victory to our side today, is key. When you choose how to interpret presidential power, for instance, you need to find a view that works both for presidents you like and presidents you don’t like.

That is the whole point of constitutions, after all. The Constitution is higher law, defining the bounds of governmental powers and personal rights that apply regardless of what momentary majorities might like to do. Some days it seems as though constitutional law has become just another battleground of partisan warfare—the continuation of politics by other means. If we stay true to our professional values, though, we can do better than that.