Political footballs and constitutional law

ON MONDAY, my constitutional law class will meet for the first time this semester, and I don’t have the slightest idea what to tell the students about the subject we’ll be discussing for the next 13 weeks.

I’ve taught the class before, and by now I know most of the canonical cases as well as I know my own phone number. My problem is that I’m no longer sure there’s really a subject to teach.

I don’t seem to be the only one confronting this problem. As Harvard Law School professor Lawrence Tribe recently observed: “Conflict over basic constitutional premises is today at a fever pitch. Ascertaining the text’s meaning; the proper role and likely impact of treaty, international and foreign law; the relationships among constitutional law, constitutional culture and constitutional politics; what to make of things about which the Constitution is silent -- all these, and more, are passionately contested, with little common ground from which to build agreement.�

As a result, Tribe says he will not attempt to publish a revised version of his much-read treatise on constitutional law. And if Tribe, no shrinking violet, can no longer figure out how to write a treatise on constitutional law, where does that leave those of us lesser mortals who just want to teach the topic in a way that is honest, useful and fair?

Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals in Chicago, who also lectures at the University of Chicago Law School, joined the fray last year, writing that most constitutional questions “can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.... It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly.�

In a world in which all constitutional issues are political footballs, I seriously wonder whether I can leave my students with any set of doctrines, principles or precedents that will enable them to distinguish confidently between laws and government actions that are “constitutional� and those that are not.

This doesn’t mean that there’s nothing interesting for my students to study. A tour through the most important constitutional decisions of the last two centuries is a tour through U.S. history at its most stirring, through the controversies and conflicts that have shaped who we are today and that will continue to shape us into the distant future. Revolution, commerce, slavery, war and love, life and death -- it’s all there.

We’ve faced constitutional crises several times in our history -- moments when the nation was so seriously divided that violence and even political dissolution seemed real possibilities. Disagreements over the constitutional permissibility of anti-slavery laws led to the Civil War. Nearly a century later, it took federal troops to force Arkansas to abide by the Supreme Court’s Brown vs. the Board of Education ruling.

Today, we’re again facing constitutional crisis, and it’s as serious as many we’ve faced in the past. We have a president who seems intent on challenging all the old verities about constitutional checks and balances, and a population that is bitterly divided over the definition of human life, the scope of personal freedom, the role of religion in society and the role of government in responding to social and economic problems.

Little wonder, then, that we fight about the “judicial philosophy� of Supreme Court nominees such as Samuel Alito. How tempting to imagine that all our problems would be solved if we could only find a magic bullet: the one “correct� approach to constitutional interpretation.

But as we move further and further from 1787, it becomes less and less possible to find any “correct� approach to resolving constitutional dilemmas. The Constitution was drafted by a small group of men writing at a time when the entire population of the United States was smaller than the present-day population of South Carolina, when the enslavement of human beings was considered acceptable, when women had few legal rights, when the cotton gin was still a high-tech dream. No matter how thoughtful the framers were, why should anyone imagine that a short document drafted more than two centuries ago could possibly contain the answers to every modern question?

But that’s the deep oddity of American constitutional culture. Despite its all-too-human origins, we treat our Constitution as revealed truth, and we want our judges to serve as its infallible priests.

And this, perhaps, is the best I can offer my students: the suggestion that in the United States today, constitutional interpretation is best understood as a form of theology rather than law.