Discernment

Please permit me a few more thoughts about the examination, in particular the essay question.  These thoughts arise after conversations with a few students – some who did well on the exam, and others who did not do as well – and a few other comments across which I came (e.g., postings on webpages, conversations overheard, and the like).

There is some scuttlebutt that I did not provide you sufficient direction to allow you to excel on the essay question.  As you may recall, the question was this:

In class we have examined three theories of executive power – literalist, stewardship, and prerogative.  Which interpretation of the powers of the Presidency has the Court supported?  Has this support been consistent or wavering?  In a general sense, what can one presently say about the nature and scope of executive power?  Support your thesis with citations to appro­priate cases and readings.

A seemingly common complaint is that I did not specifically say that you should speak to all three theories in your response; that I did not lay out a specific template for you to follow and fill in.  In fact, I did not.  I did not because 1) this is an essay question (NOT A PROMPT… not an invitation to drain indiscriminately whatever “true” information you memorized onto the page), 2) this is college and not high school, and 3) higher order thinking skills – which are among the things you should be learning in college – require that you develop powers of discernment.   Discernment is not painting by the numbers.  Discernment is seeing the whole, seizing the relevant part of it, and painting free hand guided by your knowledge, understanding, and insight.

Let’s look at the question again in light of what we read/discussed in the first portion of the class.  Over all, it asks you to assess the constitutional status of executive power.  A number of you seem to have been thrown by this sentence: “Which interpretation of the powers of the Presidency has the Court supported?”  The confusion seems to come from some notion that this sentence asks you to choose one of the theories we discussed.  Of course, it doesn’t say that, and a discerning view of the caselaw that we’ve examined would suggest that each theory has, at times, animated the Court’s treatment of executive power.  So a discerning response would have started from that premise since it is the conclusion that one would draw from the totality of the cases.  Anything else would require you to 1) throw out data (cases/opinions) that didn’t fit your argument (which is a sign that the argument is significantly flawed), or 2) try to force an interpretation on data that it does not fit (think forcing a square peg into a round hole; you can do it, but it distorts both the peg and the hole).  Either of these approaches distorts the reality it seeks to describe and explain.  This is a poor strategy to follow when trying to convey your understanding to a third party.  Instead of ramrodding the data (your peg) into your answer to the question put to you (the hole), you want to discerningly shape your answer to fit and fill the hole.

Starting and pursuing your essay response from a perspective of discernment, you would work to a concluding discussion that pulls together the information that you arrayed previously.  The relevant portion of the question directing you to do this is “In a general sense, what can one presently say about the nature and scope of executive power?”  In response to this question (NOT PROMPT) a discerning response would note the relative frequency with which the Court employed the various theories in light of its decisions whether or not to exercise its power to validate or invalidate.

So, to sum this up, an exam in my class does more than simply ask you to give me back information that you’ve learned.  It asks you to make sense of that information in light of a specific question asked.  It takes discernment to do that, and that is a skill you want to develop and continue to develop.  As Sean O’Connell notes in his essay response to the question “What did you do at SMU that has turned out to be good preparation for the actual study of the law?”, these skills of discernment will be useful for you who go to law school.  More to the point, I think, they will be useful to those of you who would like to lead a life of sentience.  Unless you want to do what people tell you to do – one definition of slavery – you will need to make choices based on your own assessment, analysis, and discernment.

None of this is to say that developing discernment is easy.  It is not, especially given how many high schools conduct their classes these days.  The obsession there is passing mandated state exams, so teachers “teach to the test.”  For really bright kids, like yourselves, AP classes are a sort of “ramped up” version of teaching to the test.  Every AP class I’ve visited on “meet the teacher” nights has begun with the teacher announcing the percentage of students who made 4s and 5s on the AP exams the year before.[1]  Thus, “hand-over-hand” learning is largely what you have learned over your educational career.  You feel comfortable with it.  You like templates.  You like to be guided to the promised land.  I understand that.  I also understand this:

The only way you will actually get to the promised land is to find it yourself.  That requires knowledge, but it also requires wisdom.  Discernment is the path between them.

One student who has taken a number of classes with me had this to say: “Someone could teach a course on how to take your class. Coming up with seven good analytic and detailed essay outlines is particularly tough the first time. In [my first class with you], I fumbled around with charts and such, but it really helped me to study, at least initially, with other people who had done this before.  I also think a talk like you gave today would help if it came before the midterm, especially for those who haven't taken a class with you before.  Really, a review the day before the exam is only helpful for clarification about certain cases and how they fit into a (mostly completed) outline, etc. I think many people are just so overwhelmed by all of what's going on that they don't even know where to begin with the questions.  Expectations for essays and a general discussion of how to write them beforehand might help clarify that.  But, maybe we're supposed to figure that out on our own.”

What I said above actually speaks to a lot of what this student says.  In my response to his/her last sentence, I wrote this: “Essentially, yes.  Students have the questions a WEEK BEFORE the exam.  The onus is on them.  I’m around and urge people to come in to talk.  Thing is, life isn’t about following the dots.  It’s about finding them and arranging them oneself.  An intelligent life, at least.”

This isn’t easy.  It takes commitment.  It takes preparation that begins well before the exam.  It takes a willingness to come in to talk to me (or whatever professor) as the semester rolls on and not just before exams.  I chuckle when I look at on-line forums for law school students and wannabes and see people talking complacently about not staying on top of work and procrastinating.  They don’t get it.  They don’t see what O’Connell saw.  They haven’t made their studies – why they are in law school, why they are in college – the central (not only, but central) focus of their life.  They assume the world will rotate around to them.  It won’t.  It spins as it spins without bias or discrimination.  Most of them will hit the windshield on the freeway of life.

Take ownership of the material in the class; take ownership of the class.  Don’t just cover our material.  Make sense of it.  Learn and discern.  Don’t do “just enough.”  Do everything you can.  Work up to your potential and don’t cheat yourself.  The latter is the saddest fate of all: “could have been….”  It’s on you.