A Flashback On The Two-Year Clause

People often ask me if I always wanted to be a law professor, or if I always knew I wanted to be a lawyer. The answer to both questions is no. My entire youth focused on technology. I went to Staten Island Technical High School, a leading engineering high school. For college, I received a degree in Information, Sciences & Technology at Penn State. I did not take a single constitutional law or political science class in my undergraduate education. (I took one class on business law, but that doesn’t really count.)

After graduation, I would begin working at the Department of Defense in Arlington on network security. During the summer between my Junior and Senior year, I decided to apply law school to focus on Intellectual Property. It was not a well thought-out decision. I had no lawyers in my immediate family and I knew nothing about IP. But law schools published these shiny pamphlets promising salaries of $160,000, so I thought it could work well.

I studied for the LSAT for a few weeks. I took two or three sample tests, and did well enough. I took the actual LSAT in October of my senior year and did not plan to take it again. I then applied early decision to George Mason Law School as an evening student. My plan was to work during the day at my office in Arlington, and go to class at night. Mason had a well-regarded IP program. I was aware of the conservative and libertarian reputation (Professor Walter Williams would often guest host on the Rush Limbaugh show), but that is not why I applied there. I did not apply anywhere else. I discussed this background in an article, From Being One L to Teaching One L.

During my 1L year, I fell in love with Constitutional Law. Indeed, for evening students, ConLaw was not taught till the third semester. But I regularly attended FedSoc events on campus and the National Convention. I was hooked. For my 1L summer, I attended the Institute or Justice Bootcamp (as it was then called), and my eyes were opened. I still remember the moment when Clark Neily convinced me that the war on drugs was a mistake. (Clark also told me about this new Second Amendment case he was working on, Parker v. District of Columbia.) Still, I did not even conceive that a career in constitutional law was possible for me. The most likely path, I thought, would be BigLaw.

I applied for on campus recruiting during the start of my 2L year. (I realize today firms recruit students with no grades, but there were still timelines in 2007.) I managed to secure a summer associate position with a D.C. firm. I was beyond thrilled for the opportunity, and the compensation. At the time, the $3,500/week salary was more than double what I was making at the DOD. In the lead-up to the summer, the firm circulated a “get to know you” questionnaire. One of the questions was “What are you interested in?” Of course, I wrote “The Constitution.” I didn’t give the form much thought.

Summer arrived. After the first day of work, we had a cocktail reception at a swanky club nearby. (To this day, I feel guilty about how much money the firm spent on entertaining law students.) One of the partners came over to me and asked “Were you the person who said he was interested in the Constitution?” He did not mean it in a good way. I said, “Yes.” He replied, “The Constitution has nothing to do with my practice.” Again, this was my first day on the job, where I was trying to impress the partners to make me a permanent offer.

Perhaps the prudent course for a young Josh would have been to make a joke, and laugh it off. But that’s not what I did. I knew the lawyer worked on military contracts. I whipped out my pocket Constitution, and I turned to the Armies Clause in Art. I, § 8, Cl. 12, the Armies Clause. I read it, ” The Congress shall have Power . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. . . .” I said every payment that you work on is authorized by this clause. The partner looked back at me, dumbfounded. He had built a successful practice on military contracts, though I doubt he ever realized or cared what the constitutional basis was those contracts.

At that moment, I realized my future was not in Big Law. The rest of the summer was enjoyable, but I regularly felt something was lacking. For example, I was working on a memo in a government contracts case, and I realized there was a notice problem, so I raised a Due Process argument. The partner told me (correctly) that constitutional issues could not be raised in this administrative proceedings, and to stick to the Federal Acquisition Regulation (FAR). By the middle of the summer, I decided that I wanted to clerk. (Back in the day, you would apply to clerkships during your 2L summer.) During my 3L year, I realized that academia would be my path. And I pursued that path. The rest is history.

In a funny way, I may owe my entire career to the obscure Armies Clause. The irony is that the “Two Years” provision of this clause has largely been ignored. Appropriations for the military routinely stretch beyond two years. I have been aware of this problem, but never gave it much thought.

That was, until I saw a new article titled Reviving the Military’s Term Limit. Professors Matthew B. Lawrence and Mark Nevitt argue that the two-year limitation was obliterated by 1904 Solicitor General opinion. If this clause’s original meaning is restored, then the partner (who may not still be in practice) will realize how the Constitution affects his work.