Our [Blank] Constitution

A recent article in The Nation by Brooke Allen, provocatively titled "Our Godless Constitution," recounts the substantial difference between the Founders of record and the pious Protestants evoked by the modern Right. There's nothing (forgive the term) revelatory in it, but these things need to be repeated occasionally. I was more interested in the title of the article than its content, though, and not due to its bluntness. The "Our [blank] Constitution" format falls into one of a few prolific patterns often used to produce titles for works of constitutional law or theory.

I read a lot of constitutional theory. It's part of my job, but it's also something I find interesting. Even an interested reader can find the sheer volume of constitutional theory exhausting, however. An article by Rebecca Brown from 1998 opened with the line "Honk, if you are tired of constitutional theory." I've searched online in vain for a bumper sticker with this slogan.

Brown argues that Alexander Bickel, the agitator of constitutional theorists for the past 40 years or so, started us down the unremittingly dull path of trying to reconcile judicial review and democracy with his book, The Least Dangerous Branch, and that theorists could improve the field by calling into question some of the premises of his book. Personally, I think it's more of a market problem. The vast majority of con theory is written by law professors, of which there are an astonishing number. The supply of law professors is connected at least loosely to the supply of law students, which continues to increase, increasing the need for law professors and providing an ever-renewing supply of editors for the unending proliferation of law reviews, which need articles. Many of those articles are constitutional theory, and many of that class eventually become books; it's a vicious cycle that makes reading a lot of con theory really necessary if one intends to keep up with developments.

Brown does have a point, though. Like it or not, constitutional theorists are not a very creative bunch. This can be seen most clearly in the titles of works in constitutional law and theory. Much like Robert Ludlum novels and early Steven Seagal movies, the titles constitutional theorists choose for their work fall into easily recognizable patterns, like "Our/The [adjective] Constitution":

- Monaghan, Our Perfect Constitution
- Graber, "Our Imperfect Constitution"
- Fleming, "Fidelity to Our Imperfect Constitution" (OK, there's a bit more to that one, but he's still playing with the same formula)
- Farber, "Our (Almost) Perfect Constitution" (because some people are just finicky)
- Seidman, Our Unsettled Constitution (and the parents are starting to wonder)
- McGinnis and Rappaport, Our Supermajoritarian Constitution (these authors played it safe - could be a complement, could be a dig)
- Cooter, The Strategic Constitution
- Fallon, The Dynamic Constitution (these last two make the constitution sound like a good head coach or CEO)
- Devins and Fisher, The Democratic Constitution
- Fletcher, Our Secret Constitution
- Koh, The National Security Constitution
- Karst, The Woman's Constitution
- Sunstein, The Partial Constitution
- Sager, "The Incorrigible Constitution"

and that's just the ones I could think of or gather from a quick look. The last one is my favorite. It makes the constitution sound like a really rotten kid or an inveterate womanizer, like "the bratty constitution," or "the rakish constitution." In fact, if legal scholars wanted to really freshen up this pattern, they should humanize the constitution with movie and TV touches:

- Our Curmudgeonly Constitution (I see James Garner in the lead)
- The Confident Constitution (ever since it started taking natural constitutional enhancement...)
- The Eligible Constitution (and turns out to be free this evening!)
- The Deliberate Constitution ("Excuse me miss, you need a lift?")
- Our Man Constitution ("You went to Moscow to watch ballet?" "No, to teach!")
- The Simple Constitution (read by Paris Hilton and Nicole Ritchie)
- Desperate Constitutions (scandalously dropping its towel)

Another, perhaps even more popular title pattern is "[The] Constitutional [noun]:"

- Bobbitt, Constitutional Fate
- Bobbitt, Constitutional Interpretation
- Whittington, Constitutional Interpretation (because one wasn't enough)
- Whittington, Constitutional Construction
- Antieau, Constitutional Construction
- Mueller, Constitutional Democracy
- Vose, Constitutional Change
- Bell, Constitutional Conflicts
- Johnson, Constitutional Privacy
- Stearns, Constitutional Process
- Lipkin, Constitutional Revolutions
- Tribe, Constitutional Choices
- Fisher, Constitutional Dialogues
- Rossiter, Constitutional Dictatorship
- Kennedy, Constitutional Failure
- Levninson, Constitutional Faith
- Post, Constitutional Domains
- Eisgruber, Constitutional Self-Government
- Glennon, Constitutional Diplomacy
- Hayman and Levit, The Constitutional Ghetto
- Gerstmann, The Constitutional Underclass
- Ely, On Constitutional Ground (the "On" is an innovation, and that's why Ely was a legend)
- Eskridge and Levinson, Constitutional Stupidities, Constitutional Tragedies (I guess each editor wanted a different term)
- Brown (yes, Rebecca), "Constitutional Tragedies" (a chapter in Eskridge and Levinson's volume)
- Karlan and Ortiz, "Constitutional Farce" (also a chapter in the above)
- Lowi, "Constitutional Merry-Go-Round" (another chapter in E&L, but with more amusement park references)
- Garvey, Constitutional Bricolage (another personal favorite)

Of course, I'm leaving out the 100 or so books called simply "Constitutional Law," typically hornbooks or case books. I'm pretty sure you could just slap a random noun behind "Constitutional" and get a bunch of perfectly acceptable titles:

- Constitutional Condiments
- Constitutional Rutabaga
- Constitutional Toast (I must be hungry)
- Constitutional Plumage
- Constitutional Pants (because pants is a funny word)
- Constitutional Smell (as in "What's that Constitutional Smell?")
- Constitutional Spleen (another funny word; I'm sure "Monkey" would work as well)
- Constitutional Secretion (OK, I must be getting desperate)
- Constitutional Housewives (sorry, free association)
- Constitutional Rattan (one of my favorite words)

Ronald Dworkin's work doesn't succumb to any of these cliches, although he has betrayed an enthusiasm for the possessive:

- Life's Dominion
- Freedom's Law
- Law's Empire (I'm sure Liberty's Order or Equality's Ambition is coming soon)

and he gave us the "Taking [blank] Seriously" motif with the late 70s publication of Taking Rights Seriously. There are several "Taking the Constitution Seriously" books and articles, and legal scholars are out there Taking All Sorts of Things (Deterrence, Federalism, Takings, etc.) Seriously. It's even prompted some comedic responses, like "Taking Text and Structure Really Seriously." This particular meme has also infected dozens of other areas, just try an Amazon search.

After Dworkin, and perhaps Ely, the latest major constitutional theorist is Bruce Ackerman, whose primary work is the We the People trilogy. So far, he's produced We the People: Foundations and WtP: Transformations with WtP: Interpretations promised. Ackerman acknowledges an antecedent, Forrest McDonald's We the People: The Economic Origins of the Constitution, but there are others, like Michael Perry's We the People: The Fourteenth Amendment and the Supreme Court and a bunch of textbooks and the like. I know James Fleming has already done a couple of variations, ("We the Exceptional American People" and "We the Unconventional American People") but both of them are Ackerman book reviews. It remains to be seen if we'll get a torrent of "We the [adjective] People" titles, but I'm sure that might be interesting too. With the recent success of On Bullshit, I'd suggest an enterprising (and tenured) law professor write something called "We the Ass-tastic People" or "We the Shitfaced People."

"With great power..."

I have to apologize for the lack of new content on CR over the last couple of weeks. While I have been busy with other things, part of the reason for not posting recently is reticence over the use of the awesome power I wield as a blogger. As revealed in this NYT piece last week, bloggers currently hold in their mortal hands (fingertips?) the authority to arbitrarily destroy the careers of prominent figures in the media. Thinking back to my last post about NYT Ethicist Randy Cohen, I felt a tinge of regret, hoping that Cohen wouldn't suffer too much during his ignominious fall from the pinnacle of his field (whatever that is) into a pitiable state of unemployment and impoverishment, abandoned by his family and friends, made inevitable after my post hit the blogosphere. I imagined him screaming into a payphone, cursing William Safire for his sudden indifference over the dialtone, the columnist having already hung up, then checking the change slot without luck and taking a gulp from a Woolite bottle as he shuffles away from the dangling receiver.

It appears that Cohen is still the Ethicist for the time being, so maybe my reckless exercise will blow over without serious consequences. After all, I don't really wish ill on most of the people I write about on this page. Pressure does appear to be mounting on Harvard President Lawrence Summers after my post about his comments to the NBER conference a couple of weeks ago. Although I won't go on record demanding Summer's resignation (after all, haven't I done enough?) if he does have to go I'd suggest Nelleke Privett, who has done casting for a bunch of movies shown on the Sci-Fi Channel, as a replacement.

As a blogger, I implore my fellows to use our staggering power responsibly. Certainly the discrediting of Eason Jordan and Jeff Gannon (a journalist so thoroughly destroyed by bloggers' inquiries that he has apparently changed his name and entered the adult entertainment industry) will serve as a wake-up call to the media. With the swift and terrible sword of blog-justice hanging over their heads, mainstream journalists will certainly observe common standards of integrity, like always having thorough research behind their statements and getting credentialed. Bloggers can count on the example of their own sterling practice, and the examples made of these malefactors, to straighten out the field as a whole.

Nice work if you can get it

I'm not a fan of The Ethicist, a column in the NYT magazine section on Sundays written by Randy Cohen. His answers often reveal a critical lack of serious thinking and substantive knowledge about the subject at hand, but much more often his answers are either restatements of the ethical judgment implicit in the letter or capitulating suggestions to do whatever you think is right. The only thinking I find myself doing when I read his columns is how many other approaches could be taken to the same question and how many are more compelling than his. Since there appear to be no qualifications necessary for this job, maybe I can get into it myself one day.

In last weekend's column, above, he addresses the question of whether a prospective member of the bar in Ohio, which recently amended its constitution to ban same-sex marriage, can ethically swear to uphold the state constitution despite his lack of support for the new constitutional provision. Cohen tells him he certainly can, which isn't an unexpected or unwarranted answer. His reasoning, however, is unhelpful and conclusory in the extreme. He says that swearing to uphold a constitution, a written document, isn't actually an endorsement of every feature of the constitution, but "a general pledge to uphold the rule of law and constitutional government." That can't be right. If it were, I could swear an oath to uphold my state constitution (as I have, as a condition of employment) and abide by any system of consistent and authoritative law of limited government I felt like. If I were writing the pledge Cohen is describing, I'd ask bar applicants to swear an oath to uphold constitutionalism or judicial integrity or something like that. Laws command respect for their content, not just their lawness.

Interestingly, California addressed a very similar question just last year, when Mayor Gavin Newsom of San Francisco married thousands of people on the basis of his belief that the restriction of marriage to opposite sex couples only was not constitutional. The state supreme court ruled subsequently that Newsom had overstepped his authority and voided the marriages he had licensed. Basically, they found that even though the mayor can hold a different opinion about the law from the executive, he cannot act on that opinion in an official capacity. Although the decision is rooted in part on specific characteristics of the state constitution, its introduction discusses generally the rule of law and separation of powers questions presented by differing interpretations of law and the differing commitments they carry. To the extent that being a practicing attorney (and officer of the court, member of the bar association, etc.) imposes duties to clients and the judiciary, those duties must be fulfilled in accordance with the laws of the state, not a general "rule of law" principle.

Now, there's a difference between what is legal and what is ethical and since Randy Cohen isn't a lawyer (nor, as it turns out, is he a philosopher) he's better off confining himself to the latter. The ethical commitments adopted by taking an oath can't possibly be narrower than those imposed by law, however, unless you are adopting some argument that natural law obliges people not to obey immoral positive laws. If you are, then some statement might commit you (under positive law) to do something that morally (under natural law) you shouldn't do. I don't get that out of what Cohen says. Instead, he just radically narrows the commitment of swearing to uphold the constitution of the state.

An alternative approach Cohen might have taken would be to note the fact that the letter-writer believes that the provision is unconstitutional (presumably violating the U.S. constitution.) If so, even from a positivist perspective, any provision of the state constitution that is inconsistent with the U.S. constitution (supreme law of the land) is void. Of course, that doesn't mean that lawyers can avoid affirmative duties to act in accordance with the law, it just means that in taking the oath, the individual doesn't need to feel as if she is endorsing the offensive provision.

The next bit indulges the flippant vibe that Cohen mistakes for comical lightheartedness, even though most of the examples are irrelevant to the issue at hand. The final sentence, oddly enough, has some good and practical advice. Cohen suggests that the individual seek bar admission in a state that grants reciprocity "if you would feel morally compromised" by taking the oath. Since the writer is asking (or so I thought) if (s)he should feel morally compromised by taking the oath, I guess this just means "I don't know really, but here's another way to accomplish your goals and feel better about it."

Like the title says, it's nice work if you can get it.

What the !%$&#?

I came across a reference to the Rob Schneider/Patrick Goldstein press feud and found this thorough treatment of it. Here's what it's about: Goldstein argued in print that Hollywood studios are too busy making bad TV show adaptations and sequels to lame comedies to make movies that are competitive for Oscars and cited Schneider's Deuce Bigalow: Male Gigolo as an example of the latter. Schneider responded with a full page ad in Variety (!) attacking Goldstein for 1) not winning any journalism awards; 2) not being famous; 3) being "Third-Rate, Unfunny [and] Pompous;" and 4) not being able to get along with celebrities.

As this story points out, Goldstein did win a journalism award about a year ago. Still, that doesn't make this episode any more absurd. The Defamer coverage suggests that Schneider's response was borne of a hotheaded, spontaneous impulse and if true that's pretty sad. I'm inclined to think that the most important part of Schneider's letter is the last part, providing the name and release date for his movie.

The sad thing about the "hotheaded impulse" explanation is not just that a celebrity would be so bent out of shape by an off-hand joke from a journalist. The substance of Schneider's "insults" is really disturbing. I suppose that if you're a celebrity, anyone who is not a celebrity is to that extent inferior. Still, there may very well be something to Schneider's claim that he would get along better with Goldstein's colleagues than Goldstein would with his. After all, Schneider's career appears to be built to a significant degree on being Adam Sandler's friend, so he must be a friendly guy. Heck, being friends with celebrities can be a great career, look at Colin Quinn.

Women in Math and Science

Lawrence Summers' provocative public comments suggesting that the underrepresentation of women in math and science may be due to biological differences have gotten him in a lot of trouble. Now, he's set up two task forces to address the problems, but critics still question his qualifications and commitment to the education of women at Harvard. I think the skepticism is warranted.

If Harvard is serious about increasing the number of women who succeed in math and science, they're going about it the wrong way. They shouldn't rely on their economist president of the university or create a task force of faculty to address recruiting and promotion. They should hire a casting director from a sci-fi or horror movie.

I watch a lot of sci-fi and horror movies, and I've learned a lot of things about the world that I wouldn't have learned elsewhere. Like, for instance, just how many female scientists there are in the world, especially gorgeous female scientists in their 20s and 30s.

Just this weekend, Alone in the Dark opened nationwide starring Tara Reid as "a young genius anthropologist with an incredible memory" (as described in the IMDb plot summary.) I didn't see it yet, but the draw of Reid's incredible memory will undoubtedly pull me in eventually. Last night, the Sci-Fi channel showed Jason X, the inevitable space entry in the Friday the 13th series (see Leprechaun in Space, Hellraiser IV, Dracula 3000, etc.) which featured several young research facility personnel who also happened to be hot babes. If you watch the Sci-Fi channel during one of their frequent "giant/swarming insects/animals" monster movie marathon weekends you can usually count on at least one stunningly attractive scientist or technician per film. Also worthy of note, we very rarely encounter homely female scientists or any above the age of 40, and those we do are usually evil.

Of course, we also learn some of the social forces that may be making it difficult for women to succeed in the sciences by watching these movies. In almost every case, the beautiful scientist begins the movie unattached or recovering from a failed relationship. From this evidence we can discern that being an intelligent, charming and well-endowed woman in the sciences with a taste for tight, low-cut tops and disposable skirts or form-fitting slacks makes it difficult to carry on an active social life. Fortunately, the scientist babe usually ends the film with a promising connection to the male lead, so there is hope. My initial study suggests that imperiling the hot scientist and allowing her to be rescued by an age-appropriate, action-oriented male (I suggest a law-enforcement officer or other applied, problem-solving professional) allows a relationship to begin without the ego problems and competitive instincts that doom her other relationships.

Anyway, I think the primary lesson here is that admissions criteria for math and science programs at our top universities should be focusing on the characteristics proven to correlate highly with achievement in the fields: sex appeal. I would also point out the many solutions to contemporary social and political problems that can be found by attending properly to the evidence available in popular culture.

Surprise hit

Just spotted updates at McSweeney's feature of short essays on favorite songs by a bunch of writers. Inspired as everyone seems to be by Nick Hornby's book (which I haven't read yet) I was delighted to see Dr. Octagon's "Blue Flowers" get a writeup recently alongside more predictable choices like Everclear, Flaming Lips, Beach Boys and Beatles.

These are a lot of fun; I may do a few myself when I've got nothing else to drop. I will express a slight aggravation. A very funny essay on Queen's "Another One Bites the Dust" remarks justifiably on the bassline ("bada BUMP BUMP BUMP, badump bump bump ba-BUMP; bada BUMP BUMP BUMP, badump bump bump ba-BUMP") by the song's author John Deacon. Sure it's a great part, but come-on, could we PLEASE start giving the props due to Bernard Edwards, who got jacked by the Sugar Hill gang AND Queen?

On a more serious note, I highly recommend the piece about Todd Rundgren's "Hello It's Me". The Isley brothers made a rare mistake with their version, departing from the melancholy mood that essay author Nessa Burns Reifsnyder captures beautifully. I was a little kid when I first heard that song, but for some reason the senses of loss, confusion and weariness found in a lot of songs of the 70s found root in me even though I was years away from being able to understand their sources.

S. Carter, Professor of Law

The Onion makes a reference to Jay-Z's "99 Problems" in their news briefs this week:

Jay-Z's Grandfather Busted With Trunk Full Of Canadian Prescription Drugs
BUFFALO, NY—Tyrone J. Carter, rap artist Jay-Z's 75-year-old grandfather, was arrested Monday for transporting prescription drugs across the Canadian border in the trunk of his 1998 Oldsmobile. "My grandson says I shouldn't have unlocked the trunk unless the cops had a warrant, but what's a man supposed to do?" said Carter, who was busted with more than $1,000 worth of pharmaceutical-grade Diovan, Lipitor, and Lanoxin. "Don't the police have anything better to do than hassle a sick old man? My insurance doesn't cover my pills anymore—I gotta get my heart medicine somewhere." The arresting officers said the pills had a U.S.-pharmacy value of nearly $18,000.

I posted about the 4th Amendment vehicle search content of "99 Problems" before, and now is as good a time as any to point out that Mr. Carter's pessimistic closure to the traffic stop story, "[W]e'll see how smart you are when the K-9's come" was born out last week when the Supreme Court ruled in IL v Caballes that the 4th Amendment is not implicated, let alone violated, by the suspicionless use of a police dog to sniff for narcotics during a traffic stop.