Rosa Brooks*
January 20, 2006
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.
*Rosa Brooks is a professor at the University of
Virginia School of Law [and] is the author of numerous scholarly articles on
international law, human rights, and the law of war, and her book, "Can Might
Make Rights? The Rule of Law After Military Interventions" (with Jane Stromseth
and David Wippman), will be published in 2006 by Cambridge University Press.
Brooks received her A.B. from Harvard in 1991, followed by a master's degree
from Oxford in 1993 and a law degree from Yale in 1996. She lives in Free Union,
Va., with her husband and two children.