I took courses in constitutional history
twice, once as an undergraduate forty years ago, and then again a few
years later as a graduate student. Then some twenty years later I went
to law school, where there were no courses in constitutional history,
and the two courses I took in constitutional law were almost completely
The first course I took at Columbia while
an undergraduate was with the dean of the College, John Gorham Palfrey,
a member of a distinguished Brahmin family whose father had clerked for
Holmes and whose grandfather had once worked in the Brandeis firm. As a
graduate student I was fortunate enough to have a semester with Henry
Steele Commager, who had left Columbia to teach at Amherst, and who was
back as a visiting professor for one year.
Although a textbook on constitutional
history existed, an early edition of Kelly and Harbison, neither Palfrey
nor Commager used it. Instead both taught from Commager's Documents
of American History, with its highly abbreviated cases and other
documents. For them, constitutional history consisted of cases, and one
might say they taught a bottom line view of constitutional history, one
similar to that taught in law schools, leavened only a bit, in
Commager's case, by his own broad knowledge of American history.
He spoke very rapidly, and in between
moving from case to case with a speed that made note-taking almost
impossible, he would add dollops of history, an occasional story,
perhaps an aperçu about one of the justices. There was very little about
larger issues; practically nothing about theories of constitutional
interpretation; no sense of the inner dynamics of the Court.
By the time I decided to go to law school
I knew a fair amount of history--after all, I had a Ph.D. which
presumably meant that the Commonwealth of Virginia was justified in
paying me to teach undergraduates the basics of American history, even
if my great grand-daddy had not fought at First Bull Run! Thanks to my
work as editor of the Louis Brandeis Letters, I had been reading court
cases, and while I was to learn a great deal more about explicating
cases in law school, I was not afraid of them as many of the younger
students in my first year class appeared to be.
Virginia, compared to most law schools,
had a fair contingent of lawyer/historians on the staff, including A.E.
Dick Howard, G. Edward White and Charles McCurdy, but the only one to
teach what I would consider a true legal history class was McCurdy. That
is, I believe, because Chuck was and is primarily a historian who has a
joint appointment with the Law School, as opposed to the others who are
primarily lawyers who from time to time do history.
On the whole, most of the courses ignored
history. My property instructor kept saying that the history of this or
that rule was very interesting, but he knew we would not be interested.
Most of my fellow students agreed with him, although I kept wanting to
jump up and shout "I am!" The fact of the matter is that there are no
history questions on the bar exam, and the purpose of law school is to
get you through the bar.
In constitutional law, the instructors
organized the classes along doctrinal lines, and while one might move in
a temporal fashion within those areas, that was more for organizational
convenience than for any sensitivity to history. The extent of this
ahistoricism reached its climax for me when we were discussing United
States v. Butler (1935), the famous Hoosac Mills case in which a 6-3
majority declared the Agricultural Adjustment Act unconstitutional.
In that case, you will recall, Justice
Roberts, with, as far as we know, a straight face, declared that all the
Court did was hold up the statute in question to the Constitution, and
if it squared, well and good, and if not, then it was the sad duty of
the Court to say so. No judgment on the wisdom of the legislation ever
crossed the justices' minds.
My teacher then proceeded to treat this
remarkable bit of hypocritical hyperbole as a legitimate form of
constitutional exegesis, and finally I could contain myself no longer. I
raised my hand.
"Yes, Mr. Urofsky."
"Sir, what about the fact that Roberts
and the Four Horsemen had been doing nothing but passing on the wisdom
of the challenged legislation, and voiding those laws they did not like?
What about the fact that Roberts ignored several powerful precedents to
reach his conclusion, in an opinion which Justice Stone tore to shreds?
And what about the Depression, which led Congress to enact the statute
in question, and which is totally ignored in Roberts' opinion?"
The teacher, who shall remain nameless
(and with whom I am still friends), looked at me for a few seconds, and
then announced that the Depression had nothing to do with the legal
reasoning in this case.
I wanted to shout "It has everything
to do with this case," but I was so dumb-founded that I am afraid
all that happened is that my jaw went up and down like a fish for a few
minutes and then I lapsed into a coma. After all, there are no history
questions on the bar exam.
This ahistoricism has infected a whole
generation of lawyers and judges. A few years ago I attended a
conference on judicial biography at the New York University Law School.
Across the table from me sat Judge Richard A. Posner, now senior judge
on the Sixth Circuit Court of Appeals. Posner had given the lead paper
that morning, which was centered on Gerald Gunther's long-awaited and
recently published biography of Learned Hand.
In his comments it came as something of a
shock when he called into question the whole value of judicial biography
as an academic enterprise, and suggested that scholarly time could be
better spent on other ventures. One of the leading lights of the Chicago
school of law and economics, Posner suggested that "in the time that
Gerald Gunther took to write his 818-page biography of Learned Hand . .
. he might have written twenty (or probably more) law review articles
averaging forty pages, and conceivably the contribution to legal
scholarship would have been greater."
Posner admitted that there were other
considerations in taking on the task of a judicial biography. "If
Gunther got a kick out of writing the biography that he would not have
gotten from writing its weight in articles, as he must have thought when
he embarked, this is something to be added into the cost-benefit
In the discussion, I raised the question
of whether "the life affects the lawmaking," and suggested that "at
least in the lives of Brandeis, William O. Douglas, Felix Frankfurter,
Earl Warren, Roger Taney, and both Marshalls, it is absolutely
impossible to understand their legal work without understanding the
lives both before and off the Court. To try to separate their judicial
work from their lives, I think, is just impossible."
To my initial amazement, Posner responded
that of course you could understand judicial opinions "without knowing
anything about [the judges'] lives; you can understand Shakespeare or
the Iliad without knowing anything about the authors."
I tell you these stories because for such
a long period of time all constitutional history, whether in college or
graduate school or law school, could be characterized as "bottom line,"
i.e., what was the holding of the case. Courses in political science
were no better, and one of my colleagues has characterized them as "law
school lite." From what I gather, things have changed a little--very
little--in the law schools, but they have changed a great deal in
Today the teacher of constitutional
history has an enormous array of materials in front of her from which to
fashion a course that not only goes beyond the bottom line, but that can
truly make constitutional history as lively and as fascinating as it
Cases are still important, indeed they
are crucial. One cannot study our nation's constitutional development
without the cases. But the cases by themselves are not enough. They have
to be linked to the real world. Remember what Holmes said about the law,
that it reflected "the felt necessities of the times." The key is that
we must be careful not to separate the case from the historical context.
One cannot teach Marbury v. Madison
(1803) or McCulloch v. Maryland (1819) without examining the
great debate between Federalists and Republicans over the shape our
national government should take.
How can one separate Chief Justice
Taney's opinion in Dred Scot (1857) from the growing tension over
slavery that would, inside of four years, erupt into Civil War, a war
that Taney's opinion helped precipitate.
Can one really think of In re Debs
(1895) and not think about the labor violence unleashed by
industrialization in the latter nineteenth century?
(I suppose one can, if we recall Thomas
Reed Powell's brilliant comment: "If you think that you can think about
a thing, inextricably attached to something else, without thinking of
the thing it is attached to, then you have a legal mind.")
I, however, cannot do that, and for me
the great speech cases of the 1920s and 1930s have to be grounded in the
fear of radicalism unleashed by World War I and the Red Scare that
And despite what my professor said, one
cannot understand the decisions of the 1930s involving the AAA, the NIRA,
the gold clauses and the rest without appreciating the trauma of the
Great Depression and the effort of Roosevelt's New Deal to ameliorate
In more modern times how can one teach
Brown v. Board of Education (1954) or Loving v. Virginia
(1967) outside the context of the civil rights movement that roiled the
The gender discrimination cases that Ruth
Bader Ginsburg argued in the 1970s, along with Roe v. Wade
(1973), are meaningless unless one understands the women's movement that
arose in the 1960s.
Finally, but by no means exhaustively,
less than two years ago the Court handed down its decisions in
Washington v. Glucksberg and Quill v. Vacco, holding that
there was no constitutional right to assisted suicide, even though less
than six years earlier they had held in the Cruzan case that a
right to die did exist. To study this case in isolation, to read just
the bottom line, is to miss the importance of this case in modern public
discourse about individual autonomy and the problems created by medical
In short, when we talk about, when we
teach, constitutional history, we must, to paraphrase Chief Justice
Marshall, remember that it is a history we are teaching.
And what are these tools that now make
our job so much more challenging?
First of all we have judicial
Second, we have case studies, some of
which have been made into riveting television movies that will keep even
the non-book oriented GenX (or is it Y?) interested.
Third, we have studies of the Court as an
Fourth, we have doctrinal studies that
are accessible to undergraduates and even to bright high school
Fifth, the media today are interested in
the Court and its decisions, which means that we can see it in real
time, so to speak.
Finally, we are the heirs of that old
Chinese curse, "May you live in interesting times."
Let us look first at judicial biography.
Up until the first world war there really were no judicial biographies,
except a few filiopietistic volumes on John Marshall and Joseph Story.
Then in 1946 Alpheus T. Mason published Brandeis: A Free Man's Life,
and ten years later, Harlan Fiske Stone: Pillar of the Law. The
latter is the first real judicial biography in that it integrates the
man's thought, his life and non-court career, and the cases he helped to
decide. Mason had access to Stone's Court papers, and used them well to
delineate the internal squabbling that took place while Stone sat as
Chief Justice--a fact that William O. Douglas, Hugo Black and Felix
Frankfurter, the "bad boys" of the high court, did not appreciate.
Since then we have had other good
biographies. There are new and fascinating volumes on Marshall, Story
and Taney that are far from the hero-worshipping of earlier volumes.
Paul Kens has written perceptively about Stephen Field. Philippa Strum
about Louis Brandeis, Jim Simon about Black, Frankfurter and Douglas,
Mark Tushnet about Thurgood Marshall, and just about everyone has
written about Holmes. This list, of course, does not even begin to plumb
the large number of volumes available. Even secondary justices like
Sherman Minton now have books on them.
The value of judicial biography is
two-fold. One, it helps humanize the Court and places a personal face on
the men and women who make a good part of our constitutional history.
And despite what Judge Posner said, I do believe we can know more about
the cases and how they developed than if we just look at the holding.
Let me give you a few examples.
About fifteen years ago A.E. Dick Howard
was asked to come in argue a First Amendment Establishment Clause case
before the Supreme Court. The case involved a Detroit school program
which financed additional classwork in secular studies, but was open to
students at parochial schools and, in fact, some of the instruction took
place in the classrooms of Catholic schools. The lawyers who had handled
the challenge to the program had done a pretty good job in the district
and appeals courts, but wanted someone with high court experience to
take it the last step.
Dick told a class of mine that he did a
head count and by his calculations there would be four votes to sustain
the program and four to strike it down; the swing vote would be that of
Lewis Powell of Virginia. Howard knew that Justice Powell was a great
admirer of Thomas Jefferson, and so he framed his oral argument in terms
of the Virginia tradition, and sang a paean of praise to Mr. Jefferson's
call for a wall of separation between church and state. In essence,
Howard ignored the other eight justices as much as he could and spoke
directly and solely to Powell. It worked.
In a book I did on an affirmative action
case, the lawyer for the County of Santa Clara, California, told me that
he had done a head count and had come up with a split court; the key
would be Sandra Day O'Connor. Justice O'Connor, as some of you may know,
finished second in her law school class at Stanford, behind William
Rehnquist, and the only job offer she could get was as a legal
secretary. The oral argument focused on women being denied access to
good jobs, and the fact that there were only two women out of some 500
people in the better classified jobs. He got O'Connor's votes.
Of course, the classic example of how we
can understand the cases through the justices lives is Thurgood
Marshall. At his death Justice O'Connor related how whenever a death
sentence case came up or a case involving claims of racial prejudice,
Marshall would tell stories about trying to defend black clients in the
1930s, and his inability to find hotels that would rent to black
travelers. He made abstract legal ideas concrete, he made them personal,
and that did have an effect.
Second, while people wrote ad nauseum
about Marbury and Dred Scott, the genre of the case study is also a
post-World War II development, and the classic, and still the best of
the genre, is Anthony Lewis's Gideon's Trumpet (1964). Moreover,
it has had the wonderful good fortune to have been made into a riveting
television movie starring Henry Fonda as Clarence Earl Gideon.
What is the significance of the Gideon
case? The holding is that the Sixth Amendment guaranty of right to
counsel applies to the states as well as to the federal government, a
very important holding indeed. But if you will pardon a borrowing from
religious imagery, the case needs to be made flesh. What does it mean
not to have a lawyer? Can a lawyer be the difference between spending
years in jail and going free? You bet it can, and both the book and the
movie make that crystal clear.
We have had other good case studies since
then on such famous decisions as Brown v. Board of Education,
Roe v. Wade, Loving v. Virginia, and Bakke v. Regents, and
some of them, such as Loving, Roe and Brown, also have
movies available. If I may put in a short plug, the University Press of
Kansas has a great series of short, well-written case studies that are
very reasonably priced and designed to serve as supplemental readings.
I am not suggesting that we "dumb down"
our courses by letting students watch movies, nor am I suggesting that
they can watch the movies and skip the cases. Rather the books and the
movies can do something which reading the cases by themselves cannot
do--give us a sense of the lives behind the cases. There is a wonderful
line in the movie "First Monday in October," in which the older liberal
justice, played by Walter Matthau, tells the young conservative woman
justice, played by Jill Clayburgh, that the problem with the high court
is that it does not hear cases; it hears the cases about the cases,
i.e., the appeals. He worries that the justices will lose touch with the
people whose lives and livelihoods are inextricably intertwined in the
How many of you have seen the marvelous
movie "Shakespeare in Love." Now you know and I know that it is fiction,
but didn't it make you think about "Romeo and Juliet" in a slightly
different way, even if only for a short time? I have a colleague in the
English department who teaches the Shakespeare course, and he says the
availability of inexpensive videos of nearly all the plays has
revolutionized his teaching. His classes are full, the students more
involved, the discussions more active. They still read the plays, but
the words now live for them.
How many of you have read Henry V? How
many of you have seen either the older Laurence Olivier version made
during World War II or the newer one by Kenneth Branagh? There the word
is indeed made flesh, and we can go back and study the text with a
greater appreciation of nuance and structure and dramaturgy.
Similarly, we can do the same thing with
cases, although I shall be the first to admit that, with very few
exceptions, can the prose of the justices compare with that of
Shakespeare. Let me illustrate with a case book I did, and which is
available in the Kansas series (plug, plug).
The case is Johnson v. Santa Clara County
Board of Transportation, and involved a discrimination suit filed by a
white male, Paul Johnson, when a dispatcher's job which he had been
promised went to a woman Diane Joyce, because of the county's
affirmative action program. I have never had such a good time writing a
book as this one. I interviewed Johnson and Joyce, their lawyers, union
and county officials, and Justice Brennan allowed me access to his files
so I could follow the internal debate in the Court.
This is not an abstract issue. This is
about men and women (and affirmative action clearly affects all people,
whatever gender or race)) and how their personal lives are affected by
law and by the decisions of the Court. I challenge you to assign that
book, break up your students into groups arguing different sides, and I
guarantee you there will be spirited discussion.
Third, we have studies of the Court as an
institution. This may not sound as "sexy" as the judicial biographies
and case studies, but as one of my friends tells me, even though
chocolate is one of the five basic food groups, you still need to have
some meat and potatoes from time to time.
There are two basic longitudinal studies
of the Court. One is the massive and still unfinished Holmes Devise
series, each of which runs several hundred pages. These vary in quality.
Felix Frankfurter, the guiding demon behind its origin, and Paul Freund,
the Harvard Law professor whom Frankfurter hand-picked to guide it, were
both lawyers and believed that only lawyers could write the books.
Fortunately the new editor, Stanley katz, is an historian, and the
volumes written under his direction are far less parochial.
We have a sort of Holmes Devise lite
under the editorship of this conference's chair, Herb Johnson, of which
four volumes are already out. While weighing less and costing less than
the Holmes Devise volumes the South Carolina series is designed for
classroom use, and does, I believe (here again, as a contributor I am
somewhat biased) give a pretty good sense of the Court's development,
the personalities involved, the doctrinal disputes, and the role of the
Court in the larger scheme of government.
This question, about the role of the
Court, is an essential one to understanding American constitutional
development. We have a very unique constitutional court, stronger than
just about any other constitutional court in any other nation. Many of
them have limited jurisdictions, and in some cases, even if they believe
that a particular statute violates the constitution and say so, that
statute does not automatically become void.
This power has generated a great deal of
scholarly literature, and the charge that the Court serves a counter-majoritarian
and therefore anti-democratic function in the United States. Nine men
and women, unelected, non-accountable either to the electorate at large
or even to the president who nominates them or the Senate that confirms
them, declare what laws are valid and invalid, what rights are protected
and what rights are not. In some cases only five justices agree, and yet
their voice is the law of the land. When Justice Powell served he often
proved the swing vote in many 5-4 decisions, and he was never on the
losing side. So in essence what Lewis Powell decided was the law of the
Yet this Court of ours, so vilified by
conservatives in one era and liberals in the next, is the envy of many
other countries. I have traveled a lot for the U.S. Information Agency,
and in places as varied as France, the former Yugoslavia, Maylasia,
Thailand and Australia, have spoken with judges who look enviously at
our constitutional court. While there is always controversy about how
effective some of the Court's rulings are, there is no question of its
Should this be the case? One exercise I
sometimes use is to create a controversy, and then ask my students to
figure out this controversy can be resolved. While I get an occasional
student who suggests blowing one or both parties away with a shotgun,
they always come down to "take it to court." When I vary the scenario to
do away with one or more parts of the judicial system, they are
confused. Going to court is how we do this in America. Indeed. De
Tocqueville's adage of 150 years ago, that in the United States every
political issue eventually winds up as a judicial question, is still
true. What does this tell us about the role of courts in general, and of
the Supreme Court in particular, in our system.
I might add here that among the case
studies is one by Maeva Marcus on Youngstown Steel, the famous steel
seizure case. There one has a marvelous opportunity to see how the three
branches of government interacted
Fourth, we have doctrinal studies that
are accessible to undergraduates and even to bright high school
students. Doctrine used to be something that, if one discussed it all,
one did in a course in law school on jurisprudence. We now know, or we
should, that history is an essential part of that debate.
Let us take one that heated up in the
1980s, and which still simmers and occasionally overflows--the debate
between originalism, or original intent, and what some have labeled the
living Constitution theory (the more formal titles of interpretivism and
non-interpretivism are a bit unwieldy).
As you all know, Ronald Reagan's Attorney
General, Edwin Meese, attacked the Court's so-called activism, and
demanded a return to a jurisprudence of original intent. The
Constitution must be interpreted through the intent of the Framers,
either those who wrote the original document in 1787, or those who
framed out the Fourteenth Amendment after the Civil War. And, Meese and
others argued, we could find all the clues we needed on what they meant
in the debates in the Philadelphia convention, the Federalist Papers,
and the debates in the ratifying conventions.
Well, as a matter of fact you cannot. In
1778, as you all know, the United States signed a treaty of alliance
with France, which called upon the United States to undertake the
defense of France's island possession should France be engaged in a war.
Well, we were in the middle of a revolution, needed all the help we
could get, and were willing to sign anything so long as the French came
through to help us--which they did. Then we for the most part forgot all
about the treaty.
Comes the French Revolution, the
overthrow of the Bourbons (with whom we had signed the agreement), and
in 1793 France and England go to war. The French send Citizen Edmund
Genet to the United States to, among other things, remind is of our
The United States is in no condition to
do this; we don't even have a navy! So George Washington, after
conferring with his advisors, decides to ignore the treaty, on the
grounds that it was signed with a now defunct regime, and tell both
sides that the United States will be neutral. To this end, he issues a
proclamation of neutrality in April 1793.
Thomas Jefferson is aghast. By his
reading of the Constitution, since on the Congress can declare war, only
Congress can declare neutrality in a war, and Washington's unilateral
action smacks of the worst excesses of the British monarchy. Jefferson
turns to his good buddy, James Madison, and urges him to "take up your
pen, good sir, and strike at this heresy." Madison and Hamilton then
engage in a series of letters, written under Latin pseudonyms, defending
and attacking Washington's actions and debating whether he had the power
to do so under the Constitution.
The beauty of this story is, of course,
that Washington had presided over the Philadelphia convention, Madison
is known as the "father" of the Constitution, and Hamilton was at the
convention, and along with Madison wrote the bulk of the Federalist
papers. The fact of the matter is that this issue had never come up at
the convention, or in the Federalist, or in the ratifying conventions.
If Edwin Meese had studied any history he might have known that.
A new book, by Akhil Reed, The Bill of
Rights, is a wonderful piece of history that looks at the original
intent of the Framers in a new and challenging way. It is also
well-written, even witty in places, and certainly can be understood by
many undergraduates. Bill Wiecek's new book, The Lost World Of
Classical Legal Thought, is also accessible, and does much to
explain why the Court acted as it did for the better part of a century.
Both of these are, at heart, doctrine books, but don't be put off by
But many issues can be used to discuss
doctrine. What are the limits on the Court's reach? How should the Court
determine if and when a new right exists? Make your students into
judges, and ask them to justify why they reach a certain decision (but
don't let them watch Judge Judy or Ed Koch as part of their
Fifth, the media today are interested in
the Court and its decisions, which means that we can see it in real
time, so to speak. Up until the New Deal the workings of the Court and
its rulings affected a relatively small number of people. After dinner
the good people in the little house on the prairie did not sit down to
discuss what the Court had decided that day. That changed with the
constitutional crisis of the 1930s, but especially after the 1954
decision in Brown v. Board of Education.
People today are very aware that the
Court's decisions affect them, whether it be about race, schooling,
gender discrimination, abortion, affirmative action or speech. If the
people know and care, then the media will respond, and coverage of the
Court is probably at an all-time high. Not all of it is good; few media
outlets can boast the type of well-reasoned coverage that Linda
Greenhouse provides for the New York Times or Nina Totenberg for
National Public Radio. But all papers subscribe to wire services, and
even the Richmond Times-Dispatch can get good stories off AP or the
Times services. And on television and radio we get daily coverage of
what the Court does as well. Try having your students "report" on some
of the "dull" cases that we all have to deal with, such "dead-weights"
as Lochner or the Income Tax Cases or In re Debs.
Finally, we are the heirs of that old
Chinese curse, "May you live in interesting times." The Constitution is
now over 200 years old, and while it has been amended from time to time,
it is still essentially the same document put together that hot summer
of 1787. But the world has changed, and changed greatly, and one of the
challenges that we face as a nation is how to meld the realities of the
new with the structures of the old. the Constitution was written with
quill pens; we communicate on the Internet, and there is a rash of cases
working their way through the courts on whether this constitutes
interstate commerce and can thus be regulated by Congress or whether it
is pure speech protected by the First Amendment.
What would the Framers have said? Who
knows, and does it even matter? William O. Douglas, when discussing a
wiretap case, dismissed the thoughts of the Framers as irrelevant. "What
would they know about wiretaps? They didn't even have phones!"
We have all just been through a national
crisis of sorts with the impeachment and trial of William Jefferson
Clinton. It was not, I must add, a particularly ennobling experience for
anyone involved. The House of Representatives led by a group of
holier-than-thou Republicans went after a man who may be intellectually
the smartest person ever to occupy the White House in recent times but
who has the sexual morals of an alley cat. Was he guilty of "high crimes
and misdemeanors"? I don't know, but it sure made grist for the mills of
Assisted suicide, the internet, privacy,
the death penalty and a host of other issues will be coming before the
Court in the years to come. These are not abstractions, and we who teach
constitutional history have a golden opportunity not only to explore the
past, but more importantly, to show how that past is relevant to our
present and our future.
And we have tools to do this in a manner
far different than when I took that first course at Columbia many years
ago. Good luck and have a good time.
Melvin I. Urofsky
Center for Public Policy
Virginia Commonwealth University