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Harvard
Law Dean Kagan Replaced Constitution Studies With International Law

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Written by Joe Wolverton, II

Tuesday, 01 June 2010 16:00

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On May 10, 2010, President Obama nominated Elena Kagan
to the Supreme Court to fill the vacancy from the impending retirement of
Justice John Paul Stevens at the end of the Supreme Court's 2009–2010
term. A significant entry in the catalog of Ms. Kagan’s
remarkable achievements is her deanship of the
über-prestigious Harvard Law School. In 2003, she was named,
as the school’s first female dean, to succeed Robert C. Clark, who had
held that post for over a decade. While manning the helm at
Harvard Law, she attracted attention of alumni and observers for steering
the ship away from the tried and true “case-law method” of studying the
law.

A central plank in Kagan’s revolutionary
platform is the abandonment of the requirement that students at Harvard
Law School study constitutional law. The course’s place in the curriculum
was replaced by classes examining the laws of other nations and
international law.

In fact, according to the requirements for receiving a
J.D. as listed on the Harvard Law School website, the study of our republic’s founding document
is nowhere to be found.

In 2006, after the changes were proposed by Kagan and
approved by the faculty committee evaluating the suggestions, the school
published a news release to explain the changes and Kagan offered the
following justification for the de-emphasis of constitutional law
studies:

From the beginning of law
school, students should learn to locate what they are learning about
public and private law in the United States within the context of a larger
universe — global networks of economic regulation and private ordering,
public systems created through multilateral relations among states, and
different and widely varying legal cultures and systems. Accordingly, the
Law School will develop three foundation courses, each of which represents
a door into the global sphere that students will use as context for U.S.
law.

The press release identifies the three new required courses
Kagan introduced to take precedence over constitutional law. The first
covers comparative international law and was designed to “introduce
students to the sources, institutions and procedures emerging over time
through the bilateral and multilateral arrangements among states as well
as the participation of nongovernmental actors.”

The second class, called “Legislation and Regulation”
is designed to familiarize students with he world of legislation,
regulation, and administration that creates and defines so much of our
legal order.” In other words, the regulations and codes promulgated by the
bureaucracy are more critical to the definition of our legal order than is
the Constitution.

The final course, on comparative law, “will introduce
students to one or more legal systems outside our own, to the borrowing
and transmission of legal ideas across borders and to a variety of
approaches to substantive and procedural law that are rooted in distinct
cultures and traditions,” the release said. Again, Elena Kagan, President
Barack Obama’s nominee to sit on the Supreme Court, believes a survey of
“legal systems outside our own” is more valuable than a study of the
Constitution.

Apart from the statements included in the press
release, Elena Kagan explained her justification for the curriculum
changes she instituted at Harvard in a 2008 article published in The Green Bag, a legal
journal dedicated to publishing brief, readable articles about the law. In
the piece, Kagan explained that the effect of global crises and the call
for global governance made it necessary to minimize the role of
constitutional studies in favor of classes more apropos to the equipping
of lawyers with “tools for all the roles they will be called on to
play."

One of the very important roles that these future
leaders will play, according to the article, is the quest to find workable
solutions to problems “ranging from climate change to terrorism to
economic insecurity."

Neither the press release nor The Green
Bag article indicates why Kagan believed that these classes could not
be added to the curriculum without relegating the study of the
Constitution to elective status.

While the benefits of the courses of study created by
Elena Kagan are debatable, it is difficult to find a single sound argument
for downgrading the study of constitutional law to elective status. That
is not to say that a class improving students’ international perspective
is unnecessary. As a matter of fact, many of our own Founding Fathers made
the study of international law one of the key aspects of their own
education in anticipation of the Constitutional Convention of 1787.

The unanswered question is: Why could Elena Kagan not
find room for these new classes without pushing the study of
constitutional law to the margins of the Harvard course catalog? Why was
it an either/or situation, and why did she come down on the side of
international and regulatory law and against the Constitution?

It would be similar to the English Department at
Harvard determining that Shakespeare would no longer be required reading
for students interested in a PhD in Elizabethan English literature.

Robert Alt, senior legal fellow and deputy director of
the Center for Legal and Judicial Studies at the Heritage Foundation,
reckons that the changes made by Kagan at Harvard offer a glimmer of
insight into Kagan’s perception of the Constitution and its place in
American jurisprudence. Even a scintilla of evidence is valuable given the
dearth of reliable indications of Kagan’s constitutional
mien.

“One of the things [that] we don’t know about Kagan,
which she has not been terribly forthcoming on in previous questioning
(during her nomination) for solicitor general, is how she views
international law,” Alt said. “Should domestic law be influenced or
modified by international law? We don’t know what she thinks.”

Article 2, Section 2 of the U.S. Constitution grants
the president power to nominate and appoint, with the advice and consent
of the Senate, judges of the Supreme Court. It is the responsibility of
the Senate to enquire into Elena Kagan’s constitutional bent and her
propensity for interpreting our foundational document in a manner
consistent with established principles of federalism, separation of
powers, and limited government.

As Mr. Alt, understandably concerned with the message
sent by Kagan’s near obliteration of constitutional law from the basic
curriculum of Harvard Law School, observed, “This is an important question
because there are others in the Obama administration, like Harold Koh, for
instance, who have suggested with regard to the First Amendment, for
instance, that perhaps the First Amendment should be modified in some way
in accordance with international norms, in order to facilitate compliance
with international agreements.” Harold Koh is the Legal Adviser to the
Department of State and is controversial for his advocacy of using tenets
of international law and foreign legal precedent to inform the
deliberative process of judicial decision making in the United
States.

The First Amendment that Koh would "modify" to conform
to international standards of liberty reads: “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the government for a
redress of grievances.”

This article was modified to reflect the fact that
constitutional studies were not wholly abandoned, but were purposefully
de-emphasized and reduced to little more than elective status in the
curriculum of the Harvard Law School while Elena Kagan was dean.

Photo: Elena Kagan, right, and her
predecessor as dean of Harvard Law School, Robert C. Clark, during
announcement of Kagan's appointment as dean on April 3, 2003. (Harvard
University President Lawrence Summers was also in attendence out of
picture): AP Images

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KPW said:

Factually Inaccurate
As a student
at Harvard Law, I regret to inform you that this article is
incorrect. While Kagan did add new courses to the first-year
curriculum, she did not remove Constitutional Law to do so. In fact,
she eliminated only the study of criminal procedure (but not
criminal law). Constitutional Law was not part of the first-year
curriculum at the time. It has always been an upper-year course
because a) it is not strictly necessary for the practice of many
types of law (e.g., negotiating contracts) and b) it is thought to
be important that students understand the basics of legal reasoning
before tackling the complexities of Constitutional Law. It is
nevertheless true that the overwhelming majority of students do, in
fact, take ConLaw. I hope you will correct your article accordingly.

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June 01, 2010
Votes: -1

Libertythor said:

To KPW. And you say that International Law
isn't complex?
In the United States any lawyer ought to
have it clear that the US Constitution is the law of the land and
not the United Nations. This is a subtle change to get American
lawyers accustomed to international jurisprudence instead of US
sovereignty.

Kagan's actions speak loudly about what her
philosophy on the Supreme Court will be.

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June 01, 2010
Votes: +1

ARL said:

Retraction needed
This has proved
to be factually inaccurate. Are you planning on putting a retraction
statement at the top any time soon?

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June 01, 2010
Votes: +1

FrankRep
said:

Kagan Did Not Require Study of U.S.
Constitutional Law
Here's the correction:

As
Harvard Law Dean, Kagan Did Not Require Study of U.S. Constitutional
Law But Did Require Study of International and Foreign Law

CNS News
May 28, 2010

http://www.cnsnews.com/news/article/66749

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June 01, 2010 | url

Votes: +4

Flu-Bird
said:

Another reason to leave the UN
Here
is just another reason why we should leave the UN its not and has
never been about world peace its about world goverment The Un is a
vulture pretending to be a dove

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June 01, 2010
Votes: +1

ARL said:

CNS report was false: Retraction still
needed!
The CNS report was false.

http://mediamatters.org/blog/201005250028

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June 03, 2010
Votes: +0

php institute in orissa said:

http://waterflame.in/
Really nice post,
keep it up.

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June 30, 2010 | url
Votes: +0

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