Law Schools

Federalist Society Law Prof Uses ConLaw Exam To Troll The Libs

These retrograde views belong in their scholarship, not on their finals.

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Live look of Abraham Lincoln deciding whether to take a FedSoc exam, or shove it up the professor’s backside. (photo via Getty)

Often, when we do a story about a putrid law school exam question there are calls that the professor who wrote it be suspended or fired or in some way reprimanded for their pedagogical proselytizing in the form of a question. Sometimes, that is the right answer. But in this case I want to take the threat of accountability right off the table. Nobody is getting fired. No meaningful consequences will or should be visited upon anybody’s head.

Sometimes, your law professor is just a dick and to pass his class you have to answer his dickish question and move on with your life. Such is the case for Josh Blackman’s Constitutional Law students at the South Texas College of Law.

Blackman is a well known Federalist Society hero prof who constantly pushes the minority views of that organization on students and non-lawyers who don’t know that they’re listening to an extremist.

And that’s fine. If Blackman was teaching while I was a student, I would have actively sought out his class. As a student, I found it useful to hear their drivel straight from the source.

Of course, the penalty for learning from these guys is that occasionally you get exam questions like this. Blackman posted this ConLaw question on his blog, so you know he’s proud of it, which makes it even worse.

ConLaw Final Exam – Part I: The Impeachment of President Lincoln

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Sigh

Instructions: The year is 1867. Against all odds, President Abraham Lincoln survived an assassination attempt two years earlier. However, his popularity soon plummeted. Members of Lincoln’s own party turned against him, for failing to aggressively promote Reconstruction in the South. Soon the House of Representatives approved four articles of impeachment against Lincoln. Now, the Senate is holding a trial over those four articles. You are a law clerk for Chief Justice Salmon Chase, who presides over the impeachment trial of the President. First, Chief Justice Chase asks you to assess the strengths and weaknesses of the four articles of impeachment. Second, he asks you to address a fifth issue that arose outside of the impeachment trial. Your memorandum, addressing all five issues, should not be more than 1,000 words.

I know it’s Federalist Society cannon to assume everybody is white or wants to be, but I would be remiss if I didn’t point out that this is exactly the kind of question prompt that unfairly biases the exam against non-white students. As a black person, BEFORE I EVEN GET to the actual questions, I’m taken away from thinking about Constitutional Law and am forced to think about how my professor is trying to be racist towards me in his stupid exam. Blackman is imposing a tax on me, and not on the white students, because I know that anything I say against Lincoln can be used by white supremacists to justify the enslavement of my people or the continued racial disparity faced by my living family. It’s textbook unfair, and if Blackman or any of these other FedSoc jerks cared to think past their own experiences, they could see that unfairness clearly. Or, more likely, they do see the unfairness and just honestly don’t give a damn.

Can I overcome that baseline unfairness? Sure. Of course I can. I went to freaking Harvard, don’t ya know. But later, when Richard Sander or Amy Wax or some other fanboy of white rule makes a big deal about “achievement gaps” between white and non-white law students, know that biased questions like Blackman’s are a part of why such gaps exist. The playing field is not level, and non-white students and usually women have to fight through a lot of white supremacist assumptions inlaid into the very tools meant to judge them.

Anyway… let’s get to some of these fanciful “articles of impeachment.”

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Article #2

Abraham Lincoln, President of the United States, on the 1st day of January, in the year of our Lord, 1863, at Washington, in the District of Columbia, in violation of the Constitution and laws of the United States, issued the Emancipation Proclamation. This executive order declared “that all persons held as slaves” within the rebellious states “are, and henceforward shall be free.” Unmindful of the high duties of his oath of office and of the requirements of the Constitution, that he should take care that the laws be faithfully executed, and his duties as Commander in Chief, Abraham Lincoln hereby violated the Constitution.

Article 3

Abraham Lincoln, President of the United States, in violation of the Constitution and laws of the United States, ordered the seizure of all railroads. This executive order declared that the “Secretary of War is hereby authorized and directed to take possession of all or such of the railroads, trains, and other property, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.” Unmindful of the high duties of his oath of office and of the requirements of the Constitution, that he should take care that the laws be faithfully executed, and his duties as Commander in Chief, Abraham Lincoln hereby violated the Constitution.

Those who are unfamiliar with libertarian gaslighting on this issue might miss what’s going on here. The “Lincoln was a tyrant” angle is surprisingly popular among this set of legal thinkers. I think they think it makes them sound “hardcore” in their commitment to limited executive powers. They don’t get — or again, don’t care — that it also makes them sound “hardcore” in their commitment to slavery and oppression so long as their pet legal theories are protected. It’s not a coincidence that the people who think the government “taking” property to build a library is a violation of the social compact that sets us back to a state of nature, are the same people who think that Lincoln unilaterally emancipating slaves — also “property” according to good people on both sides! — is a tyrannical use of executive power.

Blackman is using the news hook of President Trump possibly getting impeached to slip in some extreme views about Abraham Lincoln. He probably thinks he’s clever. I think he’s an ass.

Of course, no exam like this is complete without the prophylactic prompt that the professor thinks absolves him of any bias and protects him within in the cocoon of getting would-be lawyers to be comfortable arguing both sides:

Question #5

After the conclusion of the trial, the Senate votes to convict President Lincoln on all four articles of impeachment. He is removed from office. However, Lincoln maintains his innocence, and argues that he did not violate the Constitution. The Secretary of the Treasury suspends payment of the President’s compensation. In response, Lincoln sues the Secretary of the Treasury for his salary in the Court of Claims. The Court of Claims dismisses Lincoln’s suit because Lincoln is no longer President. Lincoln, who maintains that he is still the lawful President, appeals that judgment to the Supreme Court.

Chief Justice Chase confides in you that he did not think Lincoln violated the Constitution, and that the Senate got it wrong. He is on the fence whether he should write an opinion finding that Lincoln remains the President. The Chief Justice asks you to write about the pros and cons of such a decision.

Both sides! Pros AND cons! “Nothing matters, Lol. Just jerk me off as I demand.”

So, how should you, the non-white student, handle this question? You basically have three options: A. Answer the question straight up and do your best to ignore the insult inherent in the prompt. B. Pay the tax and answer the question while making it clear you think the question is stupid and offensive. C. Tell Professor Blackman to kiss your black ass. The first option is the way to get your “A.” The second option is harder and doesn’t help your grade, but will make you feel better about yourself. The third option is righteous, but when dealing with the kind of fragile white man who would ask this question in the first place, you can expect stiff consequences.

In my own life, I always took option B, got my “B+,” and enjoyed the private rewards of not feeling like a freaking sap. All the Blackman-like questions I’ve endured over my education and my life generally have been used as fuel to never stop fighting the Federalist Society and the white supremacy they pass off as “logic.”

Good luck taking the exam. Know that these people don’t go away once you graduate.

ConLaw Final Exam – Part I: The Impeachment of President Lincoln [Josh Blackman’s Blog]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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