Thursday, November 7, 2013

Scholars Are Agents of Change

oThe dispiriting arguments in Bond v. United States the other day remind us that the Right has mastered the consciously liberal rights-talk, and the legal process jurisprudence, that came to dominate Constitutional law in the 1950s and 1960s, and which continues to dominate the law schools. The rights of white people to be free from race discrimination, and the rights of corporations to free speech and religious belief, dominate the Supreme Court. There is  a revival of old states-rights arguments, reviving eighteenth-century sensibilities with seemingly neutral principles of federalism. The result is a steady erosion of the Second Reconstruction, the Civil Rights era when the Supreme Court began at last to give some force to the commands of the Reconstruction Amendments. As we have seen in recent cases like Bond, and the attack on the Affordable Care Act, neither the Solicitor General nor the liberal minority on the Supreme Court have a standpoint from which to resist this new  majoritarian rights talk.

Teachers of constitutional law in my generation are almost without exception white men from similar backgrounds, educated at two or three of the leading law schools (most often Harvard). The casebooks from which we were taught, from which we now teach, reflect a necessarily narrow perspective. The new thinking is being nurtured among young scholars, happily a more diverse group in every way who have grown up with a firmer understanding of the politics of identity and the factual reality of legally constructed identities based on race, gender, and sexual orientation. The youngsters are exploring the facts of history, rejecting the mythologies in which were educated. Professor Juan Perea reminds us that constitutional law casebooks until recently often did not even mention slavery, one of the structural features of the Constitution, or mentioned it only in passing as an eccentricity abolished by the Thirteenth Amendment. Professor Zephyr Teachout restores to us the "anti-corruption principle" that informs the Constitution, a product of the natural law thinking of the eighteenth century and central to the celebrated original meaning. The anti-corruption principle appears to be the liberal obverse of the "civic virtue" celebrated by the Right, more firmly grounded in historical fact. Professor Alexander Tsesis points out another maxim of constitutional law, the communitarian basis of individual rights, a thread of meaning that runs through the Declaration of Independence, the Bill of Rights, and the Reconstruction Amendments. As the Supreme Court itself becomes more diverse and modern, it may free itself from the old orthodoxies and consult this new and more realistic understanding of history and national identity.

These thoughts are prompted largely by the fourth annual Constitutional Law Colloquium held at Loyola University School of Law this past weekend, November 1- 2.
Under the friendly guidance of Professor John Nowak and colleagues, the colloquium is designed to give a new generation of young scholars a chance to present their ideas and to talk with each other, and the result is a gathering of young people of diverse shapes, sizes and colorings, from diverse backgrounds. The energy and intelligence of the presentations was enormously encouraging. I can't summarize in any useful way the diversity of papers given in simultaneous sessions, but the link embedded above will take you to the program and to the list of presenters, some of whom are putting up their papers on ssrn, and others who perhaps will share drafts. The common theme among the papers I was able to hear was an insistence on factual history, a disdain for conventional mythology, and a firm grounding in the realities of the present day. Holmes I hope would have been glad to see his racial ideas discarded, and his belief in the importance of history vindicated.