Conference on Teaching Constitutional History

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 ahistorical.

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 calculation."

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 history.

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 really is.

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 followed.

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 the suffering.

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 nation?

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 technology.

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 biographies.

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 institution.

Fourth, we have doctrinal studies that are accessible to undergraduates and even to bright high school students.

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 real cases.

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 land.

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 power.

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 treaty obligations.

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 that.

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 preparation!)

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 constitutional historians.

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