Did Gerry Darrow nearly flunk constitutional law?
It turns out that President Barack Obama's nomination to the Supreme Court received a near failing grade in the year-long course on constitutional law while a student at the Thomas Cooley Law School in Lansing, Michigan. The nominee received a grade of C- in the course. "That's one step from the academic death penalty," said Robin Roundtree, the professor who taught the course. She claimed to have no memory of the exam.
Darrow, on the other hand, recalls the exam well.
"I went to law school because I was amazed at what government could do to people. I figured there had to be some limits somewhere. So I took the text of the Constitution seriously. I guess that was a mistake," he said with his characteristic smirk.
Darrow is a a public defender and former plaintiff's lawyer now representing indigent defendants in New Britain, Connecticut. President Obama's nomination of the unconventional trial lawyer to fill the seat being vacated by the retirement of Justice John Paul Stevens sent shock waves through the legal establishment.
"My sense of the Constitution is that it is a defining document, and that is represents a contract among strangers. It is a compact that established a government of limited powers," Darrow said. "Yet throughout the course, there seemed to be a bias in favor of ever-expanding government. Sure, the separation of powers doctrines provides a set of checks and balances of one branch of government against the other two. But it struck me then, as it does now, that all this pocket pool among government workers takes place at the expense of the people."
Darrow noted that throughout the class he hungered for "just one case" that gave meat to the Ninth Amendment. Calling it the "people's amendment," Darrow characterized it is retaining for the people those rights not explicitly delegated to government. "The high court has never given teeth to that amendment," Darrow said.
So in his constitutional law exam, Darrow wrote an extended essay on Hobbes, Locke and Rousseau, and the so-called social contract theory. He characterized modern constitutional law as "Hobbesian in character," giving to government powers never intended by the framers of our republic.
Elena Kagan, who was passed over the nomination in favor of Darrow, was scornful of Darrow's comments. "This is not the way law is taught. It flies in the face of accepted constitutional theory," she noted. Kagan is former dean of the Harvard Law School and Solicitor General of the United States.
"Has she ever represented a client screwed to the wall by some government bureaucrat?" Darrow asked. "Oh, wait," he chuckled, "she represents the government."
"Elena Kagan is a sharp tack," Darrow said. "But she's a courtroom greenhorn. I think the president nominated me to move away from the the plantation theory of justice -- you know, the theory that holds the professors, deans and wealthy lawyers know best."
During his career as a lawyer, Darrow appeared in hundreds of cases at both the trial and appellate level, arguing constitutional issues in most cases. "Sure, I can use the dessicated doctrines of the legal elite when I have to. But the challenge of the law is translating academic law into law that matters on a pragmatic level. A courtroom is no place for a professor," Darrow said.