Preparing a Course
Not much more than a month until I'm teaching again--one night course, "American Constitutional Law".
The next step is to finalize my syllabus. I owe the Department a copy soon.
I've pulled some syllabi off the web, and I will rely heavily on the one used by a former fellow student of mine--Joe Knippenberg, at Oglethorpe University. Like him I will use Rossum and Tarr. The Fall will be devoted to Volume I, The Structure of Government; Spring to Volume II, The Bill of Rights and Subsequent Amendments.
This means telling the students that what they will likely regard as the exciting stuff will come in the second semester.
In the first semester I have to establish that certain issues or problems always arise in constitutional government. Some government, or part of a government, will do something arbitrary, or something that a reasonable person thinks goes beyond the scope of their constitutional powers. What to do? Parts or branches of government should compete with each other, so that the ambition and public-spiritedness of office holders helps to ensure they all keep each other in check. At least one significant part of the government should be elected by the people--so they will get their chance to say what they want, sooner or later. In extreme cases, the government will break down, and there will be civil war followed, eventually, by some kind of government.
If you simply read some of Locke, and Federalist 33, as we will, it seems there is no real, reliable solution to this problem. Federalist 72, responding to a popular Anti-Federalist paper, defends judicial review as both a novelty and at least a partial solution.
The judiciary is in one way no threat to any other part of government--it is very weak. In another way, though, if it sticks to legal and constitutional issues, it can maintain an authority so that its decisions will be followed. It can be a trustworthy umpire on constitutional issues. Of course, it can also become another part of government making arbitrary decisions, and we will see lots of examples where decisions can be and have been criticized for that.
That's why the roughly chronological order of the course makes sense. The Marshall court had to establish itself, and develop a kind of myth of judicial supremacy, while trying to avoid direct battles with Congress. The Legislative Branch, The Executive Branch, War Powers--still sorting out the government in Washington. Federalism is a big 19th century issue, and then it flares up again with the present Rehnquist Court. Specifics on National Power (Commerce Power, Taxing Power, Spending Power), State Power, The Contract Clause, and "Economic Due Process."
With Dred Scott v Sandford, which we will read in connection with Federalism, the Court went too far; instead of resolving the slavery issue, they helped bring about the Civil War. War Powers is still an issue for every president. With Lochner you begin to see issues of economic regulation; there have been long been arguments that this decision is outrageous, far from original intent, etc., but I'm not so sure. In any case the controversy prepares us for some of the "Rights" cases in the 20th century.
Update July 28: I meant to add: I will have the class read some of Lincoln's commentary on Dred Scott, partly to remind the class that the Supreme Court can also make arbitrary (and harmful) decisions, and partly to raise questions as to what to do about it. Lincoln was careful to give his fellow Republicans hope that Dred Scott could be overturned eventually, in small steps. He never advocated anything like widespread civil disobedience. (He never condoned violations of the Fugitive Slave law, such as the actions of those who ran the Underground Railroad).
Contrast this with people who are proud to be "radicals" on both the left and the right today. Certain conservatives--and not only social conservatives, or Christians--think that Roe v. Wade may be the worst Supreme Court decision of the 20th century, at least. There has been some impatience, to put it delicately, to see the present "conservative" court overturn this decision--something they show no interest in doing. In exasperation over this and other issues, some commentators in the journal First Things suggested a few years ago that the trend in Supreme Court decisions raised questions about the legitimacy of the entire constitutional order; civil disobedience may be called for.
At that, other conservatives, including Walter Berns and Robert Bork, refused to have any further ties to the journal. As they said, Lincoln never called the legitimacy of the constitution into question, not even when Dred Scott was the law of the land.
As Eve Tushnet has said (scroll down to Wednesday, May 7), if there is one case that maddens the left the way Roe v. Wade maddens the right, it is Bush v. Gore.
It is still common to hear that the 2000 election was stolen, and Bush didn't actually win. Could patriotic citizens, if they are thinking clearly, ever say such things? Bush won under the rules in place at the time. Gore's only hope was court action, and he began to ask the Florida Supreme Court to take up more and more questions--many of which could have been resolved simply by asking for a full count right after election day. The Florida Court may or may not have overstepped; the U.S. Court stepped in, and everyone seems to agree their decision is final. Whatever one thinks of the arguments Scalia used, which are weak and contradictory, no one should say: let's scrap the constitution. (Indeed few Gore fans have even mentioned scrapping the Electoral College, the biggest source of their trouble).
From what I have read, I think the decision was terrible, and no great harm would have resulted if the Florida Court had been left in charge. At worst, there would have been two slates of electors from Florida, favouring different candidates, and the House of Representatives would have had to resolve the issue. No civil war. No crisis of noone being President. Both in Nixon's troubles in the 70s, and in Clinton's troubles more recently, there were predictions that the country couldn't take the strain, etc., but both the system and the country did fine.
(I am grateful to Richard Neuhaus for the observation that even in the worst case, the system would have done fine in late 2000 or early 2001. But in the paragraph I'm thinking of, he straddles the fence and then shifts position. First he opposes judicial interference in political questions, especially where a perfectly acceptable alternative solution was available--and indicates clearly that this was the case with the 2000 election result. Then he favours the intervention by the Rehnquist court in this case.
"I confess to being disappointed, however, by the number of commentators who said they had at last been awakened to the tyranny of judicial usurpation but then expressed such deep gratitude that the U.S. Supremes had 'saved us' from a constitutional crisis. Both left and right seemed to think that there would be something very wrong about resolving the confusion legislatively-by the Florida legislature certifying its electors and, if necessary, by the House of Representatives choosing the President. The Constitution specifies the way of legislative resolution, but most pundits seemed terrified by the prospect. Thus we had, at the same time and often by the same people, a decrying of judicial usurpation and paeans of thanksgiving that the Supreme Court had spared us the awful prospect of self-government through the constitutional means of representative democracy. Having said that, I do think the decision of the Supreme Court was the right one. It was a sharp and dramatic rebuke of the Florida court's usurpation of legislative authority in attempting to change election laws after the election. A more effective challenge to the regime of judicial usurpation, however, awaits an occasion when a wayward court is set right not by another court but by those who are elected to represent the sovereign people.")
(Jack Balkin also argues that the Congress could have peacably determined the presidential election. See pp. 126, 130 ff. Balkin toys with the idea that the Republicans would be so enraged at losing for the third time in a row, they would attack the institutions of the Republic; then he says no, no, they're probably not such bad citizens as all that.)
So in reading the cases, and even more in the supplemental readings, I'll keep coming back to the questions: why have a constitution? Why have judicial review? Can we or should we simply surrender democratic judgement on a range of issues to 9 judges? To what extent does "original intent" resolve the issues that are brought forward? To what extent are judges likely to wish a political result, and make their arguments suit that result? To what extent can reasonable people, at least with the benefit of hindsight, agree as to which decisions are good and bad?
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