This is syllabus of Levinson’s Fall, 1999 course (which met a total of five hours) at the New York University School of Law; it incorporated many of the additions to the new edition. The long introduction preceding the syllabus also will serve, more indirectly, to indicate Levinson’s overall vision of the casebook
constitutional law, fall 1999
THE CENTRAL TOPICS OF THIS COURSE
Some of you may be under the impression, perhaps from courses you took in undergraduate school, that to learn constitutional law is simply to learn what the Supreme Court has written about various and sundry issues. You may have read, for example, the famous (or, for some, notorious) statement of Charles Evans Hughes (who would later become the Chief Justice of the United States), “We are under a Constitution, but the Constitution is what the judges say it is.” A central purpose of this course is to attack that assumption. Perhaps the easiest way to attack it is to ask the following question: Do you believe that it is possible for the Supreme Court to make a mistake, i.e., to “get it wrong” as to what the Constitution, correctly interpreted, means? If you do believe this is possible (that, for example, the dissent in a given case might be a better construction of the Constitution than the majority opinion), then, as logical matter, it cannot be the case that “the Constitution is [only] what ‘the Court’ [i.e., a majority of the Justices or even, for that matter, all of the Justices] says it is.” To criticize the Court requires some Court-independent notion of constitutional meaning. To accept Hughes’s notion as an analytic truth of constitutional meaning, on the other hand, would make criticism of the Court’s ventures in constitutional interpretation literally meaningless. You could, of course, criticize the consequences of some particular decision or express the wish that the Constitution had been written differently. I have recently, with William Eskridge, co-edited a book, Constitutional Stupidities, Constitutional Tragedies, one of whose points is that the Constitution is by no means perfect and may contain some quite stupid, even potentially disastrous or evil, requirements. But such critiques depend on the notion that there is ascertainable (or, perhaps more precisely, for those with philosophical interests, warrantedly assertible) meaning to the Constitution.
Two questions, then, are at the heart of this course:
1) What precisely is involved in interpreting the Constitution of the United States, assuming that the answer is something else than simply asking “what has the Supreme Court said about the matter”? Incidentally, even if one offers that answer, we would still be forced to ask “what precisely is involved in interpreting an opinion of the United States Supreme Court,” since, as you will discover, the opinions are scarcely self-evident (or self-interpreting) in their meaning? So we will be interested in asking what counts as a felicitous example of constitutional interpretation. Or of “mistake.” Incidentally, you should also ask yourselves if these are interestingly different questions from asking how we (ought to) interpret any other document, including, e.g., the Uniform Commercial Code, the Federal Rules of Civil Procedure, the Internal Revenue Code, a will, the rules of the National Football League, Hamlet, or Beethoven’s Ninth Symphony?
2) To whom, if anyone, should we look for authoritative constitutional interpretation? Is this a specialized task, or can any lawyer–and, indeed, perhaps any citizen–play the game? Again, think of the examples immediately above. Ought we treat professors of English as “privileged” interpreters of Shakespeare, the conductor of, say, the Vienna Philarmonic, as a privileged interpreter of Beethoven, or, for that matter, Bob Dylan as the last word on interpreting songs written by himself? Or can a non-Ph.D. “amateur” critic or an otherwise obscure musician nonetheless be the source of genuine insight even as the professor or conductor–or composer– might be dismissed as an arrogant fool?
Consider the fact that President William Jefferson Clinton has, like all other public officials (see U.S. Constitution, Article VI), taken an oath to “faithfully execute the Office of President of the United States, and … to the best of my ability, preserve, protect, and defend the Constitution of the United States” (see U.S. Constitution, Article II, Section 1, Clause 8). It is quite obvious that it is no mere academic hypothetical to ask how we can know if the President has in fact been faithful to his oath or, on the contrary, if he has violated it and therefore merits impeachment. You will, as an attorney, take–and no doubt many of you, because of other positions you have held, have undoubtedly already taken–a quite similar oath to that taken by the President. How could anyone taking such an oath (or any observer) know when the oath is being violated? What techniques of interpretation are available to a President (or to a law student) committed to upholding the solemn covenant of fidelity to the Constitution?
In trying to figure out what constitutional fidelity means, should President Clinton (or you) look at the text itself for guidance? Should he (or you) try to find out what the drafters of the language had in mind in putting it in the Constitution? Should he (or you) read lots of past decisions of the Supreme Court about the topic at hand? Should he (or you) study carefully the acts of those who occupied the White House before him? Or might he (or you) think simply of “the good of the country,” on the premise that surely the Constitution can’t prohibit what would serve the best interests of the United States? (Could it ever be proper, though, to identify constitutional meaning with “what would win the most votes in the next election”?)
Perhaps you think that the President (or any given lawyer or citizen) is ill-equipped to make such determinations. Consider, though, that President Clinton graduated from what is often described as the country’s leading law school; moreover, he taught constitutional law at the University of Arkansas. If he isn’t well equipped to interpret the Constitution, who is? And why shouldn’t you be confident that by the end of this course you will know how to decide what the Constitution requires of those who have pledged to obey it? Maybe you remain skeptical about President Clinton’s, or modest about your own, abilities. Does there exist, then, somebody else to whom you can turn for correct answers to any particular constitutional controversy? If so, then the obvious next question is who would that person (or institution) be, and why did you choose him, her, or it rather than some conceivable alternative? Imagine, for example, that this syllabus included the following sentences:
The Constitution, of course, is a hard document to interpret. Fortunately, you are taking a class from a certified expert–after all, I co-edited the casebook! You can therefore be confident that whatever view I articulate as to constitutional meaning is the correct one. Indeed, you will be graded at the end of the course on your ability to repeat my own views, given that they are the correct ones.
Would you accept without question my assertion of expertise and your duty to accept, without significant question, whatever I tell you? Or would you complain to the Dean? And if you did complain, what precisely would you say: That I am an egomaniac? That I am trying to “indoctrinate” you? That I am not allowing you to have your own opinions? That I don’t recognize my “place” within an institutional hierarchy in which the Supreme Court is on top? But now imagine that the syllabus instead includes the following paragraph:
The Constitution, of course, is a hard document to interpret. Fortunately, there exists an institution called the Supreme Court of the United States that we all know to be composed of especially capable experts, and you can be confident that whatever view a majority of them articulate as to constitutional meaning is the correct one–after all, they (or at least their law clerks) write the opinions! Indeed, you will be graded at the end of the course on your ability to repeat its views, given that they are the correct ones.
If you are (properly) hesitant to accept me as the “last word” in constitutional meaning, why is it more plausible to accept the United States Supreme Court’s self-designated role, as described in a number of relatively recent (i.e., post-1957) opinions as the Constitution’s “ultimate interpreter”? Is that assertion any less egomaniacal than my own? Or is the response that they are simply better, more competent lawyers than I am? Perhaps that is correct, but how do you know that is the case? Imagine, for example, that the first day of class included a pop quiz, in which you were asked to write three sentences about each of the current justices. How well do you think you would do? If, as I have found to be the case in the past, students know quite little about the justices, then what, other than sheer faith, supports any assertions as to their competence?
You might offer the pragmatic, altogether accurate, response that the decisions of the Court are more likely to be followed than are my “decisions.” But that simply raises an additional question: Are they followed because they are (thought to be) correct or simply because whatever the Supreme Court says goes, regardless of correctness, persuasiveness, or any similar attribute? Actually, a major debate among political scientists, see especially Gerald Rosenberg, The Hollow Hope (1990), concerns the actual impact of what might be termed “unpopular” decisions on the behavior of those not predisposed to agree with the Court. Even if the Court definitely has far more effective power than I do, it is not at all clear that it has the power sometimes ascribed to it by persons who believe that the Court in fact exercises great influence over the general political order. So perhaps the sentence above should have begun “Are they followed, to the extent that they are…..” And, of course, compliance may be a function of viewing the decision either as “authoritative” or “correct.”
By the end of this course, it is my hope that you will have thought reasonably hard about these questions and have begun the process of coming up with your own answers to them.
THE PEDAGOGICAL APPROACH OF THE COURSE
I teach this course historically. We will, for example, take much of the first half of our time together getting up to and through the events of 1861-1865. (A key issue in constitutional interpretation is the name that we place on these events: Are they a “Civil War,” a “War Between the States,” a “War To Suppress Southern Independence,” or some other designation of your choice? Does the Constitution supply any hint as to how we should name the struggle?) Not surprisingly, I strongly believe in the desirability of such an approach: The Constitution of the United States has a developmental history or, to use a slightly different metaphor, an archeology. It did not always look the way it does today, and there is no reason whatsoever to believe that your children will see the same things in the Constitution that we do now. Your parents, after all, do not now see an “unchanged” person when they compare the present you with the you of ten years ago, nor, for better or worse, are they likely to see, after even your first year of law school, the identical person you were before you embarked on this path. It is no doubt true, of course, that for many important purposes, you are (and will be) well described as being the “same” person now that you were then, but it is also the case that on occasion both onlookers and yourselves will want to insist on important developmental changes. In any event, an obvious question, whether discussing constitutions or persons, is to try to account for such changes that can be perceived as having occurred and to discuss what lessons can be learned–or morals drawn–from their existence. These questions take on added meaning at this particular time, given the seeming willingness of the current Supreme Court to reconsider some quite basic issues in constitutional interpretation. That is, if a conservative Republican wins the next presidential election (accompanied, presumably, by a conservative Senate), then much of what was taught even a couple of years ago as “settled doctrine” may indeed be consigned to the junk heap, just as occurred after 1937 during the New Deal and in the 1960s with the so-called Warren Court.. One purpose of this course is to ask, “so what?” Would that automatically be a terrible thing and, if you believe so, precisely why would that be the case?
The possibility that the current doctrines of the Supreme Court have a shelf-life considerably less than that of a Hostess cupcake is an additional reason for structuring this course as I do. I am absolutely confident that the issues we will be discussing will be relevant to you throughout your lifetime as American citizens and lawyers. I think there is no reason to believe that that would be true if we concentrated on the elaboration of contemporary doctrines.
SYLLABUS OF CLASSES
1. Wednesday, August 25 Introduction
Reading: Constitution of the United States; Introduction to Part I of the casebook, Brest & Levinson, pp. 1-6 (NOTE TO READERS: I HAVE TRIED TO INTEGRATE THE PAGE NUMBERS OF THE NEW EDITION INTO THIS SYLLABUS, WHICH ACTUALLY REFERRED TO THE OLD EDITION, BUT I WILL UNDOUBTEDLY MAKE A MISTAKE OR TWO IN THE NEW PAGE NUMBERS)
(NOTE: IN THE FUTURE, I MIGHT WELL ASSIGN THE SHORT DISCUSSION OF THE LOUISIANA PURCHASE, PP. 73-75, AS A WAY OF BRINGING UP WHAT I REGARD AS ONE OF THE MOST IMPORTANT QUESTIONS OF THE INTRODUCTION–AND OF THE ENTIRE COURSE–WHICH IS WHETHER WE REALLY CARE ALL THAT MUCH IF OUR GREAT STATESMEN HAVE BEEN SCRUPULOUSLY FAITHFUL TO SPECIFIC CONSTITUTIONAL NORMS)
2. Thursday, August 26 James Madison as constitutional interpreter: The Bank of the United States (Or, who precisely was James Madison, and should we care what he thought the Constitution meant?)
Constitution, Article I, § 8; B&L, pp. 7-11
3. Monday, August 30 Competitors as constitutional interpreters: Randolph, Jefferson, Hamilton, Washington
B&L, pp. 11-16
4. Tuesday, August 31 John Marshall as constitutional interpreter
(Or, who precisely was John Marshall, and why, if at all, should we care what he (or his successors) thought the Constitution meant?)
Constitution, Article III, § 1; B&L, pp. 17-39
(The discussion will focus on ¶¶ 1-6, though I will presuppose your having read the entire assignment)
5. Thursday, September 2 Continued
Constitution, Article VII; B&L, pp. 66-70
(The discussion will focus on ¶¶ 7-11)
6. Tuesday, September 7 Continued
Constitution, Amendment X (Today’s discussion will focus on ¶¶ 12-45)
7. WEDNESDAY, SEPTEMBER 8 Do “inherent powers” supplement “assigned powers”?
8. Thursday, September 9 I. An introduction to structural argument: Why can’t Maryland tax the U.S. Bank?
B&L, pp. 44-51
II. (After break) Andrew Jackson as an independent constitutional interpreter; herein also an introduction to the notion of precedent
Constitution, Article II, § 1, Clause 8; Article VI, Clauses 2-3; B&L, pp. 33-36, 51-58 (Chapter 1 of Constitutional Faith is relevant to this discussion)
9. Monday, September 13 Marbury
B&L, pp. 75-104
NOTE: I USUALLY DO NOT TEACH MARBURY; I MADE AN EXCEPTION THIS YEAR BECAUSE THE NYU COURSE WAS FIVE HOURS (AS OPPOSED TO THE THREE HOUR COURSE I HAD BEEN TEACHING AT TEXAS). I MUST SAY THAT EVEN WERE I TEACHING THE FIVE-HOUR COURSE AGAIN, I WOULD PROBABLY NOT TEACH MARBURY, SINCE I REMAIN CONVINCED THAT IT PROBABLY TAKES MORE THAN ONE CLASS, EVEN OF 90 MINUTES, TO TEACH THE CASE (AND THE SURROUNDING EVENTS) WELL AND THAT IT REALLY ISN’T WORTH IT IN TERMS OF WHAT HAS TO BE GIVEN UP IN ORDER TO MAKE THE TIME
10. Tuesday, September 14 Marshall on property rights (Being an introduction also to natural rights, natural law, the “ethos” of American political culture, etc.: On the unwritten Constitution and “unenumerated rights”
Constitution, Article I, § 10, Amendments IX, XIV (§ 1); B&L, pp. 104-114 (Chapter 2 of Constitutional Faith is especially relevant to this and the next class)
11. Thursday, September 16 Enter the brooding omnipresence: Slavery and legal interpretation (Or, Can one recognize “natural rights,” “justice,” or any similar concept in a regime that includes chattel slavery?)
Constitution, Article I, § 9, Clause 1, Article V; B&L, pp. 114-116, 207-211
12. Tuesday, September 21 Conceptualizing American Indians
B&L, pp. 117-121
13, Thursday, September 23 Marshall on interstate commerce
Constitution, Article I, §8, Clause 3; B&L, pp. 126-144
14. Monday, September 27 State “police power” and the regulation of matters touching on interstate commerce
B&L, pp. 145-162
15. Tuesday, September 28 A nation of states
Constitution, Article IV, § 2, Clause 1; B&L, pp. 162-168
16. Thursday, September 30 Fugitive slaves, federalism, and
Constitution, Article IV, especially § 2, Clause 3; B&L, pp. 169-182
17. Monday, October 4 Slavery and freedom of speech
Constitution, Article IV, § 4; Amendment I; B&L, pp. 171-173, 60-66, 378-387 (in this order)
18. Tuesday, October 5 Dred Scott
Constitution, Article IV, § 3; B&L, pp. 182-207
19. Thursday, October 7 Abraham Lincoln as constitutional interpreter
Constitution, Article I, § 8 (Clause 11), § 9, Clause 2; Article II ; B&L, pp. 211-231 Chapter 4 of Constitutional Faith is particularly relevant to this discussion
20. Monday, October 11 What precedent did Lincoln set?
The Steel Seizure Case
B&L, pp. 704-724
21. Tuesday, October 12 Constitutional consequences of war: Congress debates the meaning of “civil rights” and of “equal protection”
B&L, pp. 241-255
22. Thursday, October 14 Race and the Constitution:
I. On rights civil and political
Constitution, Amendments XIV, XV, XIX, XXIV, XXVI; B&L, pp. 259-270
23. Monday, October 18 II. Can “Separate” be “Equal”?
B&L, pp. 270-285, 742-746
24. Tuesday, October 19 Our “color-blind” Constitution?
Andrew Kull, The Color-Blind Constitution, Chs. 5; Hopwood v. University of Texas Law School (Xeroxed)
25. Thursday, October 21 III. Who, precisely, is prohibited by the
Fourteenth Amendment from engaging in
racial discrimination or denial of due process?
Herein of “state action”
B&L, pp. 285-295, 1384-1397
26. Monday, October 25 Congress confronts multiculturalism:
The Mormon Church and the Constitution; the constitutional status of the American Indian
B&L, 255-259, 309-314
27. Tuesday, October 26 The United States becomes a self-consciously imperial power: Does the Constitution follow the flag?
B&L, pp. 297-309
28. Thursday, October 28 The Fourteenth Amendment, “privileges or immunities,” and marketplace freedom
B&L, pp. 314-332
29. Monday, November 1 Lochner and the triumph of “freedom of contract
B&L, pp. 332-351
30. Tuesday, November 2 Congress and the national economy
prior to 1937
B&L, pp. 355-369
31. Thursday, November 4 The Great Depression and the Constitution
“1937” and the transformation of legislative power to define “public interests” and “public purposes”
B&L, pp. 415-464
32. Monday, November 8 What (if anything) limits Congress when it “regulates commerce”?
B&L, pp. 464-477, 511-533
33. Tuesday, November 9 What remains of federalism (as a constitutionally protected value)? Usery v. Garcia (and now New York and Printz)
Constitution, Amendment XVII; B&L, pp. 551-614
34. Thursday, November 11 The nationalization of the Bill of Rights:
Should the Second Amendment be “incorporated” against the States? Is this a “legal” or a “political” decision (and how, precisely, does one tell the difference)?
Constitution, Amendment II; B&L, pp. 402-414
35. Monday, November 15 Federalism and the spending power of Congress
Constitution, Article I, § 8, Clause 1; Amendment XVII; B&L, pp. 371-374, 477-480, 533-535
36. Tuesday, November 16 The Spending Power and Congress: The theoretical conundrum of “unconstitutional conditions” as a prerequisite to receiving governmental benefits: To what extent can the piper call the tune?
Constitution, Article I, Section 8, Clause 1; Amendment XVII; B&L, pp. 1411-1416, 1450-1475
37. Thursday, November 18 The revival of “unenumerated” rights:
I . On the notion of “fundamental values”
38. Monday, November 22 II. Abortion
39. Tuesday, November 23 III. Sexual Autonomy and the Constitution
40. Monday, November 29 Some constitutional ramifications of the contemporary welfare state:
I. Under what circumstances is the state obliged to take account of its residents’ welfare needs? Indingents encounter the American welfare system
B&L, pp. 1370-1390
41. Tuesday, November 30 II Selectivity in the provision of welfare benefits: Abortion
B&L, pp. 1526-1532
42. Thursday, December 2 III Who is our “brother” or sister”? On the legitimacy of preferring one’s own in the distribution of welfare benefits
B&L, pp. 1505-1526
43. Monday, December 6 IV. “Accommodation of religion” and the administration of the contemporary welfare state
B&L, pp. 1475-1480, 1571-1600
NOTE: I WILL OBVIOUSLY BE REVISING THE SYLLABUS FOR NEXT YEAR, WHEN I WILL BE TEACHING A NEW FOUR-HOUR COURSE AT THE UNIVERSITY OF TEXAS LAW SCHOOL. I SUSPECT THAT I WILL ADD BOERNE. WHAT IS MORE DIFFICULT IS FIGURING OUT WHAT I WILL DROP, BESIDES MARBURY.