Many people have asked me why law professors at top institutions with lavish research support hadn’t already discovered what I have found. The answer, I think, lies not so much in understanding me, as in understanding them.
To uncover what the Founding Generation really thought about the Constitution, you have to really want to do it. If you think of legal scholarship as mostly promoting your political views, then you don’t reach for the truth. Instead, you forage around for historical scraps that support your pre-fixed conclusion, and once you find them, you quit looking.
As I point out in my book, The Original Constitution, that’s how many constitutional law professors seem to operate. That’s not just my opinion. Back in 1981, Columbia University’s Henry Paul Monaghan – himself a distinguished law professor – bewailed the tendency of law professors to subordinate good facts to a good argument. And it’s nearly as much of a problem today as it was in 1981.
It would be less of an issue if the professorate were politically diverse and paid primarily from private sector sources. In that situation, liberal professors would seek out facts that support their positions or please their donors, and conservative professors would do the same. But in fact law professors are paid mostly, directly or indirectly, with government money – including federal money – and therefore don’t have much incentive to scrutinize the constitutional basis for those expenditures. Politically, they are overwhelmingly “progressive,” which means that, while they say they believe in a “living constitution,” mostly what they want is a dead one.
Real scholarship is about facts, not argument. The principal reason I went into academia was to do real scholarship. (It sure wasn’t the money!) Yes, I like teaching, too, but that wasn’t a reason to give up my law practice, since Colorado colleges and universities were kind enough to give me all the part-time teaching I could handle.
So I decided to seek a full-time academic job.
Ever try to get a constitutional law position in academia if you are a conservative white male with a decade of real-world experience? Forget it. The fact that I was fully qualified – in fact more qualified than most applicants – to do constitutional research didn’t make it any easier.
So to become positioned to do constitutional research, this is what I had do first:
* Get a job teaching other subjects;
* publish and get tenure in those other subjects;
* induce my superiors to allow me to branch out into legal history;
* craft a legal history course that focused on the Constitution to respond to student preferences; this enabled me to keep up with the latest findings while preparing for class;
* apply to teach Constitutional Law whenever the school had a vacancy;
* after being rejected, apply next time;
* after the fourth rejection, win a legal case against my superior;
* teach constitutional law under intense scrutiny;
* write articles without an adequate library (although with the help of wonderful librarians);
* apply for a sabbatical so I could spend a semester at a university with adequate research libraries;
* after being rejected, apply again;
* appeal, as necessary;
* finally win the sabbatical, travel to Britain and live there at my own expense, spending time burrowing in English libraries and consulting with English librarians; and
* bring home a magnificent collection of notes and electronic sources that have served as the core of two subsequent books and over 25 major investigative articles.
You might understand why most people might not want to go through an experience like that.
That is why we won’t get much high-quality constitutional research until law schools leave the public-money trough, become more politically-diverse, and insist that legal scholarship be true scholarship. Until that time, what we are likely to get instead is mostly taxpayer-funded ACLU briefs, with footnotes.