A Deeply Unpersuasive Argument Against Elena Kagan

The Washington Times has an editorial that seems to argue that because Elena Kagan supports the teaching of international and comparative law, she actually believes that “foreign law trumps the Constitution.”

It was under Ms. Kagan’s leadership while dean of Harvard Law School, for instance, that Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in “International/Comparative Law.” The de-emphasis on the Constitution itself is part of a horribly misguided trend in liberal academia. To replace con-law with international law is symbolic of a mindset that runs far afield from the basics of American legal tradition.

As someone who teaches both constitutional law and “international/comparative law,” I would say that both should be required for law school graduation. At the same time, given the politics of the constitutional law faculty at Harvard, I think the Washington Times would actually be happier that Laurence Tribe and Mark Tushnet have fewer students in their conlaw classes.  And given that there is pretty much nothing in Kagan’s written work that reflects the”transnationalist” perspective, this is pretty thin stuff that will make her critics look silly.