Guest post: A wild ride to Germany, reflections on federalism — and more

This week, the Dean’s blog features a wildly eccentric and thoroughly enjoyable guest post from my colleague Justin Walker. In it, he takes the reader on an unexpected, wild ride with him through Washington, D.C. and on to Mainz, Germany, offering an unexpected series of observations about separation of powers, federalism and comparative law in the process. Enjoy!

May 27 to May 30, 2018

Just before she opens our plane’s door on the Dulles tarmac, I tell the United attendant, “Our flight to Germany leaves in 10 minutes.”

With skepticism, and the tone of Commander Spock, she says, “You should run.”

The Vulcan didn’t know that for me, that’s a lot easier said than done. I mean, sure, I love to run when my great friend and favorite running buddy is up for some intervals — or maybe a 5K. And when I’m stuck on my own, I sometimes spin on our surprisingly addictive Peloton. But … I rarely full-out, no-holds-barred, Hey-John-Edwards-there’s-mirror-over-there sprint.And when I try, I look like a malnourished hunchback having a heart attack while nursing a knife wound across the Sahara.

So it’s less than fortunate that I find myself sprinting across two interminable terminals, resting only on a monorail between them, praying that, in spite of my first flight’s three-hour delay, my wife, Anne, and I will still catch up to the last available red-eye to Frankfurt.  

We don’t.  

Sort of.

Me, just arriving at the gate, gasping for breath, staring at our Boeing 777: “The plane hasn’t left the gate. It’s right there!”

Soulless gate agent, shaking his head: “The door is shut.”

Me: “Why can’t you open the door???”

Kafka character: “I’m sorry.”

He isn’t. But at least he doesn’t drag me down the aisle.

Or murder my dog.

I tell myself he isn’t a bad guy. He just works for a bad airline.  

And I try to remind myself of a Chinese folk story I heard last week, called “Who Knows What’s Good or Bad.”

“It’s a story of a farmer and his horse.

“One day his horse runs away. And his neighbor comes over and says, to commiserate, ‘I’m so sorry about your horse.’ And the farmer says, ‘Who Knows What’s Good or Bad?’ The neighbor is confused because this is clearly terrible. The horse is the most valuable thing he owns.

“But the horse comes back the next day and he brings with him 12 feral horses. The neighbor comes back over to celebrate. ‘Congratulations on your great fortune!’ And the farmer replies again: ‘Who Knows What’s Good or Bad?’

“And the next day, the farmer’s son is taming one of the wild horses and he’s thrown and breaks his leg. The neighbor comes back over: ‘I’m so sorry about your son.’ The farmer repeats: ‘Who Knows What’s Good or Bad?’

“Sure enough, the next day the army comes through their village and is conscripting able-bodied young men to go and fight in war, but the son is spared because of his broken leg.

“And this story can go on and on like that. Good. Bad. Who knows?”

Of course, at the airport, typing an email to the wonderful lady in Mainz expecting me to start teaching a two-day class tomorrow morning, I’m not feeling very Zen. I’m mad my flight was late. I’m mad they wouldn’t open the jet bridge door. And I’m mad the next available flight means I’m going to get to Mainz on Monday at 4 p.m. — six hours after my class is supposed to start and three hours after it’s supposed to end.

Good. Bad. Who knows? I know! It’s terrible!

But then things start to look up.

Ines Gillich, the wonderful lady in Mainz, emails me that I can reschedule Monday’s class for Tuesday!

And then the rental car turns out to be a Mercedes!

And then the view from our AirBNB is breath-taking!

And the day after class we visit a castle that inspired the Magic Kingdom’s.

Which has another great view…

Followed later by a ride down a “summer luge” track…

And then Munich.

Every stop was beautiful. And so was every moment in between.

But nothing was more beautiful to me — or more fun — than teaching an entire course about federalism and separation of powers in a single day!

Six hours straight... A packed, un-air conditioned classroom… Students with no background in American law… And me with 230-plus years of legal history to cover… What could go wrong?  

I was once in a college class where the professor began his lecture on the Civil War by starting with Magna Carta.  For Tuesday’s students, I spared them; we didn’t start that far back. But we zoomed through a lot of other ground: the Articles of Confederation; the Constitutional Convention; Articles I, II, III, and VII; The Federalist Papers; the Bill of Rights; Marbury; McCulloch; the Court Packing and “Switch in Time”; Farmer Filburn; Toker Raich; taxes and penalties and mandates and Medicaid and John Roberts and nuclear waste.

Along the way, I asked each of the 30 students a pointed, cold-called question about the student’s opinion, perspective or reaction. They came from different countries and different backgrounds, and I found the conversation more and more exhilarating as we returned again and again to three questions ingrained in the Constitution’s structure:

• Why have federalism?
  
• Where’s the line between judging and legislating?
  
• What of the tension between a Congress of limited powers and a Constitution that sometimes enumerates those powers in broad terms?

By the end of the class, I was hot, exhausted and ready for what promised to be a thought-provoking coffee with Mainz’s Professor Udo Fink. But I was impressed at how engaged the students had remained. “You didn’t fall asleep,” I said, “and you didn’t even throw tomatoes at me!”  

And so, I didn’t want the class to end. Not even after six hours.  And especially not until I shared with my students-for-a-day my favorite quote about federalism — a Justice Kennedy vision, inspired by thinkers from Lao Tzu to Oppenheimer:

“The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. It is appropriate to recall these origins, which instruct us as to the nature of the two different governments created and confirmed by the Constitution.”

“And that’s what Christmas is all about, Charlie Brown.”

As I left Mainz, Pink on the stereo, rental car flying down the Autobahn at speeds I wouldn’t dare try in America, and me chatting with Anne about our day, wondering and laughing about our daughter, Isabella, and thinking nothing of my missed flight and late arrival, I felt blessed.  

Blessed to teach.

Blessed to travel.

And blessed to have a return ticket to my favorite city in my favorite state in the greatest country in the world.

Good. Bad. Who knows?

I know.

It’s beautiful.