I join generations of law students in pondering the 1L riddle of the sphinx:

Why is constitutional law so goddamn boring?

There's no reason to think it should be. Wars were not fought over torts. Millions of people did not converge on Washington DC to protest prescriptive easements. Con law. In it is marked the struggle of every oppressed group in American history.

Yet, it is freakishly, inexplicably dull. Can we blame the professor? (Always a worthwhile first inquiry.) Con law professors tend to be smart guys. Our professor is. He's kind, he's accessible, he's funny. Can't really complain.

But then he opens his mouth to discuss con law, and it's like a rip opens in the time-space continuum. Time dilates. It's the longest 70 minutes in the day.

Here's my theory. Con law is dull due to the lack of actual law. And by law I mean a set of principles that emerge and repeat themselves in an accretive, fugue-and-variation way.

Instead, every case seems to be its own special bundle of confused and arbitrary reasoning. Everybody is equal, unless they're not. We defer to legislatures on certain types of legislation, unless we choose not to. Rational basis review means one thing sometimes, a different thing other times.

And the reasoning ... my god the reasoning. "This is a fundamental right, arising from the hazy aura surrounding the universal question of what it means to be a human being, at least according to these 6 northern European nations." Uh, ok.

01 Apr 05