I was surprised by Jesse Wegman’s essay, “The Crisis in Teaching Constitutional Law,” which purports to show that a newly “politicized” Supreme Court has exploded the possibility of teaching the foundation of our legal system. I hadn’t experienced a crisis teaching constitutional law and, to be honest, I was also a little embarrassed for my profession by some of the over-heated rhetoric by faculty Wegman interviewed. One of the interviewees even succumbed to sobbing: “While I was working on my syllabus for this course, I literally burst into tears.” The reason? “I couldn’t figure out how any of this makes sense.”

　　I haven’t had that problem; I haven’t cried even once while writing my syllabi, and it’s not for lack of teaching constitutional law. I have been teaching US constitutional law, constitutional interpretation, and Ohio constitutional law, since 2005, and I co-edit a casebook Federal Constitutional Law, so I’m familiar with what it takes to teach constitutional law. My primary pedagogical goal is to give my students the knowledge and tools they need to effectively advocate on their clients’ behalf. This body of knowledge includes the key cases and the doctrines that govern discrete areas of law, and the tools include the conventional building blocks of constitutional interpretation, such as textual, structural, and precedential arguments. I continue to do so four times a week this semester without any significant difficulty, and certainly without any greater difficulty compared to twenty years ago when I began teaching.

　　For example, regarding the area of “abortion rights” mentioned by Wegman, I first nest that topic within the broader doctrine of substantive due process. We cover the doctrine’s origins in the late-nineteenth century, its ostensible rejection during the New Deal, the Court’s return to the doctrine signaled by Griswold v. Connecticut (1965), and the key cases since then. We discuss the debate over the doctrine’s legitimacy, including criticisms of substantive due process that have existed since its inception, and the debates on and off the Court over the correct test to identify so-called fundamental rights protected by the doctrine. We read Roe v. Wade (1973), taking into account both arguments in favor of and against its holding and reasoning, and we do the same with Planned Parenthood v. Casey (1992), and Dobbs v. Jackson Women’s Health Organization (2022). I put each of these cases in broader legal contexts of debates over constitutional interpretation and the Supreme Court’s role in our political community. None of this is mysterious; and certainly none of it has become “impossible,” as Wegman contends.

　　Indeed, there are a number of areas of law that have become significantly easier to teach in the past few years. The best example is Establishment Clause case law, one of the (many) areas listed by Wegman as examples of the crisis. Prior to 2022, that body of doctrine was one of the messiest, most incoherent bodies of constitutional law I taught. This unintelligible mess was the product of the Supreme Court moving over the course of about fifty years from a strict-separationist interpretation of the Clause, articulated in Everson v. Board of Education (1947), to a more accommodationist interpretation in cases such as Marsh v. Chambers (1982), and Lee v. Weisman (1992), but rarely overruling prior cases. This left the law in a state of deep inner tension. That tension was largely relieved in Kennedy v. Bremerton School District (2022), where the Court definitively ruled in favor of the more accommodationist perspective, rejected the older strict-separationist tests, and authorized two related analyses going forward: history and tradition, and coercion.

　　Wegman’s evidence supporting the purported crisis is exceedingly thin. At one point, Wegman complains that “these justices have moved quickly to upend decades of established precedent.” It’s not clear if Wegman is lamenting both the alacrity and the overruling of precedent, but even if it is both, it’s hard to take this “crisis” seriously, at least in context of the broad sweep of American history. Anyone who has taught one of the Warren Court’s many areas of doctrinal innovation knows that today’s Court is no more innovative than prior Courts. Moreover, as someone whose goal it is to teach all cases—including those challenging ones authored by Chief Justice Warren—charitably, I can confirm that any difficulty in teaching Bruen, Students for Fair Admissions, and the others Wegman complains of pales in comparison to the herculean task of painting Miranda v. Arizona (1966), as a good-faith interpretation of the Fifth Amendment.

　　A more charitable and less emotional interpretation of the past approximately ten years of Supreme Court case law is that American constitutional law is engaging in one of its periodic processes of constitutional change.

　　Similarly, another faculty member interviewed by Wegman laments that the “difficulty of th[e] proposition [that constitutional law is not simply politics] has never been higher,” and the evidence for this is that “the justices’ votes used to be less predictable.” It’s hard to credit this claim. Was the New Deal Court really “less predictable” when all nine justices ruled that the Commerce Clause applied to purely intrastate activity in Wickard v. Filburn (1942)? Did anyone doubt that the Warren Court would rule in a consistently progressive direction (as defined by the conventions of the times) in any of a number of cases before it?

　　“What’s changed,” another interviewee says, “is that today’s Republican-appointed justices are much more conservative than any justices in the last hundred years.” Putting aside how one would measure that, even if it was true, it undermines Wegman’s critique that the Supreme Court today is uniquely political. Most scholars agree that many Republican nominees from President Nixon to President H. W. Bush were relatively unconservative and tended to move leftward over the course of their tenures. Think of Justices Blackmun, O’Connor, and Souter to name three. If that conventional view is correct, then it’s not only today’s cases that “politics” explains; “politics” also explained Wegman’s golden era when constitutional law was purportedly “not simply politics.” (I don’t agree with this reductionist account, as I’ll explain below.)

　　Wegman appears to believe that the cause of the “crisis” is “the pretense of practicing so-called originalism,” which is a facade for “the policy priorities of the modern Republican Party.” Has Wegman never read opinions issued by the New Deal Court or the Warren Court, where political preferences and holdings seemed to align a lot, and without the compensation of a plausible legal interpretation of the Constitution? Does he think that farmer Filburn’s home-grown and home-consumed wheat was “Commerce … among the several States” in Wickard v. Filburn (1942)? Does he agree that a listening device outside a public telephone booth is a constitutional “search” based solely on the reasoning that any other interpretation is “bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion,” as Justice Harlan asserted in Katz v. United States (1967)?

　　A more charitable and less emotional interpretation of the past approximately ten years of Supreme Court case law is that American constitutional law is engaging in one of its periodic processes of constitutional change. Though there is always change in constitutional law, transformational change occurred during the Taney Court, it occurred again during the Hughes Court, and it may be occurring now. Today, constitutional law is moving from an eclectic mix of nonoriginalist and originalist cases and doctrines toward a coherent, integrated body of originalist constitutional doctrine. I’ve described this process in more detail here. In short, the Roberts Court is following the gravitational pull of the Constitution’s original meaning and utilizing stare decisis to navigate existing constitutional doctrine’s transition from its current eclecticism to a fully originalist practice. I welcome criticisms when and where the Supreme Court purports to but does not follow the Constitution’s original meaning, and Wegman points to some candidates for this criticism. For example, it’s not clear that Janus v. AFSCME (2018) is required by the original meaning. But mistakes do not preclude a charitable interpretation; they merely warrant criticism of the mistakes.

　　If my description of how teaching constitutional law can and does operate is correct, what explains the overwrought reactions of the faculty interviewed by Wegman? It appears that Wegman and his interviewees are doing something other than teaching constitutional law. One possible explanation is that they placed the Supreme Court and its doctrine on too exalted a plane. The justices were not merely lawyers using the standard legal tools (of text, history, structure, tradition, and precedent) to interpret the Constitution, admittedly in a way different from some of their predecessors and admittedly occasionally in a mistaken fashion. If one instead believes that the midcentury Supreme Court, its caselaw, and its doctrine, were quasi-sacred custodians of progressive legal truth, then the Court’s recent—incorrect, by the faculty members’ lights—pronouncements would be something much worse than mistaken legal interpretations, they would be heretical: not merely bad law, but bad theology. Professor Karlan gives voice to this: “The people who taught us were all Warren court people. … They valorized it. There was this notion that judges … would save us all.”

　　Unorthodox statements by today’s judges, if of sufficient quantity, would cause a crisis of faith in the oracle of constitutional truth. “Losing religious faith can be a shattering experience, turning a universe that seemed full of providential order into a frightening and meaningless void,” as the author of the memoir, Original Sins, recounted. Like a person who loses his faith in his childhood church and suffers the grief and sense of loss that comes with it, those who idolized the justices as augers of ethical truth and their cases as Delphic decrees now suffer an existentially jarring loss. Melissa Murray, quoted at the end, appears to have experienced this: “You’re not just ministering to the[students], you’re also trying to restore your own faith.” I never shared Professor Murray’s faith. I never thought that the Supreme Court’s interpretations were always or even mostly correct interpretations of the Constitution, so it has remained easy for me to teach my students how to advocate for their clients’ positions. A “minister[]” like Karlan or Murray—a true believer—however, cannot pass along the true faith because originalist heretics have desecrated the temple. There may be a crisis in teaching constitutional theology, but there is no crisis in teaching constitutional law.