Are You My Constitutional Law?

One of the questions I had when I became a professor of law was “What does it mean to profess law?” Another: “What law is it that I am to profess?” I’m still trying to figure out adequate answers to these confounding questions.

The versions I confronted when exclusively engaged in law practice were easier to answer. To practice law meant to engage with the law the way that I did as a practicing lawyer; the law that I practiced was just that law that was in the tools of my trade (such as briefs, memoranda, and emails with clients). One of my favorite instruments in law practice was the appellate reply brief. We had a chance to drop law on the opposition and judges knowing that we had the final written word before argument. We could see easy cases becoming easier, and harder cases becoming more focused on what really mattered. The law we practiced there is the law that got the job done.

But prescinding from practice and focusing only on profession can be disorienting. The game looks different floating in the blimp than playing on the field. But maybe the solution is just to have a powerful enough lens to train on the field. Then we can figure out the law we profess by collecting and organizing the right features of the law we practice into some coherent pattern. But what are those features, and how do we organize them?

Consider our constitutional law. How do we find it?

It should be easy, you might think. Just look at the Constitution itself—a fairly compact written legal instrument—and figure out what the right government officials, like Justices on the Supreme Court, have said about what it means when speaking authoritatively for our constitutional law, like in opinions for the Court.

Unfortunately it’s not that simple.

Don’t believe me? Interrogate an opinion for the Court and you might just get a SNORT.

The example from my last post was Justice Kennedy’s statement in Obergefell v. Hodges that “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment … entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” William Baude and Stephen Sachs treat this as a falsifiable claim about the original law of the Fourteenth Amendment. But critics like Eric Segall and Richard Primus understand a statement like this as window dressing for some form of living constitutionalism (see Segall “Originalism as Faith”), akin to the way that politicians casually invoke God (see Primus, “Is Theocracy Our Politics?”) (Link no longer available). Justices “often use the rhetoric of originalism to create a symbolic (and maybe important link to the past)” (Segall, p.44). But it is a mistake to confuse judicial rhetoric with the substance of judicial decisionmaking. The mistake is similar to that of treating “invocations of God by political leaders [as if they] reveal a widely held theory of political authority” (Primus, p. 44).

So go read those opinions of the Supreme Court; just don’t take some of their language about the constitutional text too seriously.

In today’s legal academy, the most widely held view about the relationship between constitutional law and the Constitution is probably some version of David Strauss’s “common law” constitutionalism. Constitutional provisions are not to be treated like the text of a legal instrument but like common-law precedents (and with a fairly casual understanding of how common law precedents are to be treated): “provisions are expanded, limited, qualified, reconceived, relegated to the background, or all-but-ignored, depending on what comes afterward.” The text makes an appearance, but the real work is done elsewhere. “Like a venerated old case, a textual provision might be invoked for rhetorical effect, and maybe even for more than that … [but] the text of the Constitution often does not determine the shape of constitutional law today.”

There is a big problem, though, with professing as our constitutional law just what this practice purports to pick out. A seemingly important part of that practice is to keep professing something else, namely that constitutional law really is the working out of the law supplied by a written legal instrument. We miss the importance of this profession internal to our practice when we treat judicial claims that purport to be foundational (such as claims about what kind of law the Fourteenth Amendment supplies) as largely ornamental instead. But we also risk overemphasizing the importance of such claims if we take them more seriously than we should. So just how seriously should we take a claim like Justice Kennedy’s in Obergefell? That’s a question for another post.

Reader Discussion

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on December 07, 2016 at 14:36:19 pm

What you are describing is the teaching of legal practice as though it were the law. They are not the same. That gives us "legal realism", or the doctrine that "law is whatever judges say it is" which treats the Constitution as just a "goddamned scrap of paper" (George W. Bush). No, the competent teaching of law must always examine the historical foundation of what the words in laws (especially the Constitution) originally meant, even if one has difficulty identifying what that is. Law school is a bout the only place where law students might get exposed to historical legal analysis. Lawyers are notoriously poor legal historians.

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Jon Roland
on December 08, 2016 at 12:39:10 pm

Jon: agreed! It seems that far too many confuse the *practice* (apparentlym they have not yet mastered it) of law with THE LAW.

I read the Strauss link. He seems to think that this "common law" approach to constitutionalism is a laudatory development. I do not and have so argued that it is not in the past.
In the simplest sense, Strauss would appear to be seeking a justification for living constitutionalism.
Yet, Strauss is correct if one considers only what US constitutionalism has BECOME not what it ought, or was intended, to be.

In an odd sense, it may be that this common law constitutionalism was intended for the States, who with their original delineated powers AND freedom from Federal intervention would be free to develop / evolve their own constitutional norms / protections as they deemed proper. In short, this may have been one of the features of a Federal Structure.

Regrettably, the "center" has aggrandized itself at the expense of the States and now the "commonization" of Federal Law has doomed the State constitutional systems to irrelevancy.

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Image of gabe
on December 08, 2016 at 14:34:31 pm

Thanks for the comments. This post was already lengthier than I wanted it to be, but I did not mean to leave the impression I had made the mistake of conflating the law in practice with the law to be professed.

The beginning signals the contrast by saying the "practice" version of these questions ("what does it mean to practice law?" "what law is it I am to practice?") are easier to answer.

The middle rejects identity between opinions for the Supreme Court and our constitutional law. "It's not that simple," I say, and describe one of Kennedy's statements in Obergefell as a SNORT (new term of art).

And at the end, after describing Strauss's "common law" constitutionalism as the most prevalent in the legal academy, the concluding paragraph leads with a "big problem" with just looking to practice.

All of which is to say "stay tuned, there's more!" I think you'll find my next post more in tune with your understandings.

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Kevin C. Walsh
on December 08, 2016 at 16:29:26 pm

Thx for the reply.

My bad! I should have been clearer. I did not wish to imply that you were guilty of the conflation between practice and actual law; only that many in the profession and the academy are so inclined.

Look forward to the follow-ons. especially any further discussion of the "common-ization" of the constitution.

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Image of gabe
on December 08, 2016 at 19:18:47 pm

As a professor, I encourage you to stop thinking that your role is to profess something.

Why not simply explain what the current state of constitutional jurisprudence holds and why? For example, while many find that a case like Roe v. Wade is bad jurisprudence and may be the most egregious example of legislating from the bench (my personal takeaway from Con Law).... that is irrelevant.

In the popular vernacular, "it is what it is." Spend your time simply discussing the structure and arguments in the court's majority, concurring, and dissenting opinions. Spend time on the logical and legal merits of those arguments. Then your students will see how the Supreme Court receives and evaluates arguments. Your job is not to profess anything, so stop worrying about it. You need only to expose your students to an objective recitation of history, and challenge them to evaluate that history using legal and logical principles.

My favorite moment in law school was discussing all the different interpretations of Youngstown Sheet and Tube and the ensuing discussion of the powers of the Presidency. Nothing was "professed" by the professor -- his (and hers -- the lesson was co-taught) opinion, frankly, was irrelevant. To this day, I admire their stance, because I have no idea what they individually believed. Their role was to get the students to think. Don't profess. Teach critical thinking skills.

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Image of Phil
on December 09, 2016 at 11:44:59 am

"Don’t profess. Teach critical thinking skills."

That would be nice, wouldn't it?

But what is one to do when all others in the craft do PROFESS? - and profess what many would argue is incorrect!

Also, it may be just me, but I thought the "What do I profess" was kind of funny - and was so intended?

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.