The Columns

We the People: Conversations About the Constitution A Spring Term course helps students grasp the separation of powers in the U.S. Constitution

— by on September 5th, 2016

Conversations About the Constitution

“I’ve seen in these students an ability to speak on their feet and an ability to go beyond the surface of some really hard stuff. That is a skill that they can use just about anywhere.”

Brian Murchison, the Charles S. Rowe Professor of Law, strode into the mock trial room in Lewis Hall. Dressed in a black robe befitting a judge, he took the bench and formally opened proceedings of the U.S. Supreme Court in the case of Morrison v. Olson.

Before him were Maggie Nolan ’19 and Matt Mesisklis ’19, to argue whether the Independent Counsel Act, which allowed for the investigation and prosecution of government officials for certain violations of federal criminal laws, violates the constitutional principal of separation of powers.

Murchison invited Mesisklis, counsel for the appellant, to present his case. As if he were before the real Supreme Court justices, Mesisklis laid out his argument. The Hon. Murchison pressed for details, explanations, clarifications. Back and forth the two went. Then Mesisklis summarized and relinquished the floor to Nolan, counsel for the respondent, who presented her side. Again, Murchison questioned specific points, called for elucidation and honed in on precise definitions.

At the close, Murchison praised the students for their performance. “You had a great command of the facts and your delivery was great. You committed your argument to memory and spoke directly to the bench in a conversational tone. You also began by offering the bench a road map of your argument so when you got to that point, I was ready.”

The class is Separation of Powers in the U.S. Constitution, and this four-week Spring Term version represents a reconceptualization of the course Murchison teaches to law students. As well as in-depth readings and discussions, students prepare oral arguments of several landmark cases and play the role of attorneys arguing before the Supreme Court. With its podium and full bench for the judges, Murchison finds the mock trial room a valuable tool — “a place where college students can get a first stab at this kind of conversation.”

Mesisklis, a politics and history major, spent about two hours preparing his argument, “looking over court cases about executive officers and identifying clauses in the Constitution which pertained to the case. I went through the argument in my head a few times, trying to predict what Maggie would say in response, and how I would rebut it.”

He added, “The arguments are very challenging, and a lot of the cases are confusing, but it definitely pushes us out of our comfort zone, which is a great thing and fairly unique to a good liberal arts school.”

The class focuses on the structural part of the Constitution, rather than the Bill of Rights, “which is the snazzy stuff,” said Murchison. “I think it’s a really interesting area. What I love about the students is that they are so dedicated to the learning process. They are very inspiring to me and have shown a great sensitivity to the notion of law as a complex and nuanced method of problem solving. When the class ends, I always want to head back to the library and work on the next day’s class, because I feel that they are giving the class all they have and so should I.”

Although the class holds great appeal for students interested in attending law school, it’s not just for the pre-law set. “I’ve seen in these students an ability to speak on their feet and an ability to go beyond the surface of some really hard stuff,” said Murchison. “That is a skill that they can use just about anywhere.”

The first week covered the Federalist papers, with a close examination of Marbury v. Madison, the grandmother of all constitutional law cases. “We were not reading the abridged version,” noted Murchison. “We were studying the unedited version, which is John Marshall taking on Thomas Jefferson — two Virginians who were so different and such antagonists. The students and I were swept away by the drama of the case and how Marshall eked out a triumph of sorts. Even though the case is from 1803, it is still a pretty contemporary-sounding fight over the separation of powers.”

Students also read more recent court cases, and Murchison had them analyze two dissents by the late Justice Antonin Scalia. “Scalia — he’s no shrinking violet,” said Murchison. “We had some great discussions over the concept of originalism. Do we emphasize the original meaning of the Constitution or do we emphasize the contemporary meaning? Has there been a change? If so, what is it? If not, why not?”

He added, “I see my job as a guide. I’m helping them walk through the landscape more than telling them what to think. I want to point out the highlights. It’s kind of like being on the Snake River on a raft with the guide saying, ‘OK, there might be a really great osprey 100 yards from here.’ To be able to help them see a couple of ospreys or eagles, or appreciate the white foam in the water, is really kind of fun for me.”

In addition to the intense in-classroom discussions, the students took a field trip to Madison’s home in Montpelier for a tour, and discussed Madison’s philosophy with an expert at the Robert H. Smith Center for the Constitution, also at Montpelier.

“I wanted them to get a sense of Madison and the fact that while he was in college he had studied democracy, in particular the Scottish Enlightenment,” said Murchison. “I wanted them to drink in the Madison stuff, because they are as open and concerned and thoughtful as he was. You start with an open book and then you keep moving from that first piece of information and keep adding to it and keep talking, as he did. This is the way great things happen.”

– Louise Uffelman | luffelma@wlu.edu

Photo: Matt Mesisklis ’19 lays out his argument before Brian Murchison, the Charles S. Rowe Professor of Law, during a mock trial session of Morrison v. Olson.