People Who Have Shaped the Teaching Careers of Our Faculty—Part 5: Walter Weyrauch, Mentor and Friend

The editors of this blog have asked a number of faculty members to write about those who have been influential in their understanding of the law. In this, the fifth post in the series, Professor Alison Barnes writes about her mentor and friend, Walter O. Weyrauch (1919-2008), who was Professor of Law at the University of Florida and Honorary Professor of Law at Johann Wolfgang Goethe University in Frankfurt am Main, Germany.

Walter Weyrauch remains a unique thinker in the law, known by many worldwide, and for more than two decades since I took his classes at University of Florida, my principal guide and inspiration in law and law teaching. Our dialogue, which included hundreds of snail mail letters on goofy art note cards, reflected Walter’s world view and legal philosophy, and confirmed and developed mine.

In demeanor, he had an impassive face and long pauses. What seems a dissonance in style became cause for student comment towards the very end of his teaching career. He said of his student evaluations: “They noticed I have a German accent” for the first time since he began to teach at University of Florida 50 years before. His chuckle over this was signature. Indeed, perception of him had evolved from the days when he was rumored to have been a lieutenant in the Luftwaffe. (Chuckle.) Well into his eighties, he negotiated his retirement three years away. He said, “I thought I would be ready; I am not ready.” In part, he feared he would have too much time to reflect on unresolved feelings about his own experience.

Walter provided to me two versions of his memoirs, one hard copy (typed on his manual typewriter) and a later electronic revision, scanned in by his assistant, for my editing. He had received annotations from several scholars, but these were the last so I have worked with them and hope they will be available for any who wish to read, search for their own names, comment.

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From Council to Counsel: Reflections of a Lawmaker Turned Law Student

At the time I applied for admission to law school, I had been serving on Racine, Wisconsin’s City Council for six years. Attorneys I knew told me that my experience as a legislator would help me with my legal studies. They were right, but I don’t think any of us considered that it would be a two-way street.

Before I go further, I should note that being an Alderman in Racine is a vastly different experience from serving on a council in a city like Chicago or Milwaukee. My job is most decidedly part time, as is the pay. The relative size of the jobs, however, isn’t the only thing that makes them different.

Chicago Alderman Proco Moreno recently illustrated this. Chick-fil-A’s CEO made public statements opposing gay marriage, which upset, among many others, Alderman Moreno. “Because of this man’s ignorance,” said Alderman Moreno, “I will now be denying Chick-fil-A’s permit to open a restaurant in the First Ward.” In Mr. Moreno’s world, this likely unconstitutional action will probably go unchallenged in any real way. In my world, I would get a rebuke from the City Attorney, a hammering in the local press, and probably a lawsuit.

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Questions from the Awlaki Litigation

In August 2010, the father of Anwar al-Awlaki filed a federal lawsuit alleging that his son’s inclusion on CIA and DoD “kill lists” violated the Constitution and international law. The court dismissed the suit for lack of standing and for raising a political question. Several months later, the CIA killed Awlaki and two other U.S. citizens in aerial drone strikes in Yemen. Now the ACLU and Center for Constitutional Rights have responded by filing a separate lawsuit challenging the government’s use of the drones. The defendants are Leon Panetta, David Petraeus, and two other senior military officials, and the complaint alleges that the killings violated the Fourth and Fifth Amendments and the Bill of Attainder Clause. Given the relatedness of the lawsuits and the dismissal of the first on the basis of the political question doctrine, I think there’s very little chance that the second succeeds. But it still raises interesting issues.

One concerns precedent—has the United States ever carried out targeted killings against its own citizens? The answer is yes; the U.S. military has targeted and killed individuals without judicial process notwithstanding their U.S. citizenship. The most significant example comes from the Civil War, during which the Union killed tens of thousands of Confederate soldiers. One might argue that those soldiers were no longer U.S. citizens because they were fighting for the Confederacy, but that position is inconsistent with the view—supported by the Supreme Court’s decision in Texas v. White (1869)—that secession was unconstitutional. As long as secession was invalid, then the Confederacy was void and did not dissolve the U.S. citizenship of its soldiers. More isolated examples appear to have occurred during World War II, when the United States fought against Nazi forces that included some U.S. citizens of German descent. And of course federal law enforcement officers have occasionally killed criminal suspects who presented significant and immediate threats to the public. If the United States has acted permissibly in these cases, then the extrajudicial killing of a U.S. citizen is not unconstitutional per se.

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