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California State University, Dominguez Hills
University of Wisconsin, Parkside
Created: January 20, 2006
Latest Update: January 20, 2006

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By Robert Sheridan
SOURCE: Sheridan's Con. Law
Copyright: Source Copyright.
Included here under Fair Use Doctrine for teaching purposes.
This backup copy is to be used only if the original site on the Web is not accessible. It is meant to preserve the document for teaching purposes, when sometimes the URLS are changed when sites are updated, or sites are eliminated. Please be certain to give credit if you refer to this to the original URL: Original URL, consulted: January 20, 2006.

SEPARATION OF STATE AND MILITARY: IS IT OKAY FOR THE MILITARY TO SUPPORT PRES. BUSH? January 16, 2006. Robert Sheridan. January 16, 2006. Robert Sheridan is "A practicing attorney who teaches Constitutional Law at San Francisco Law School discusses issues in Constitutional Law."

October 21, 2004

If I handed you a completed crossword puzzle but not the clues, and asked you to please devise and list the Down and Across clues, you could easily do so because you would know what the common words meant. As to the unusual words, you would be encouraged to use a dictionary. You would still succeed, with a little more effort.

When we read a case in Con-law on a new subject, the Court provides us the answer to the puzzle handed to the justices by the contesting parties.

It is up to you, the reader, then, to identify first the problem and then the clues Down and Across which allow us to fill in the empty boxes and come up with a completed crossword puzzle answer.

But this is not how the cases are presented by the Court or the casebook.

The Court, in its opinion, simply states that here we decide on the basis of equal protection or due process that such-and-such must be the rule in a case such as the facts presented here.

It is not always apparent what the steps, or moves, were to reach this conclusion.

It is our job as law students to analyze for this and draw our own conclusions.

The better we are at putting into apt words the thought behind the decision, the vision adopted by the Court which rejected the competing vision perhaps 5:4, the better we are as Constitutional Law students and lawyers.

Remember, it is not someone else’s statement of what the issue was, or what the principle is, that we want to remember. It is helpful to our own understanding, of course, to see what another expert’s opinion is as to what the issue is. But in the end, to really understand, and learn, we have to draw our own conclusions. The idea must become ours. We need to have an image of it in our own head because it will certainly be difficult to remember someone else’s black letter law statement of his opinion of the law, with all of its qualifications and subordinate clauses. Who can remember that? Certainly not me. But I can remember the gist of major principles and work with those independently of a law book. Once I think I know where I’m going with an idea, of course, then I need the law books to see whether the cases support, oppose, or modify the way I thought I had to go.

Notice that I characterized another expert’s view of the law (other than yours, that is) as merely his opinion. That’s all it is. Dred Scott was Roger B. Taney, CJ’s authoritative opinion as to what the Constitution stood for in this country before the Civil War. His opinion, justifying slavery and racism helped in a big way to bring the war on. He was horribly wrong. Not without historical and political reason, but nevertheless wrong. He appealed to our demons, not our best instincts. The Civil War buried his view and let our ‘better angels,’ as President Lincoln termed them, grow and flourish. To this extent we’ve come a long way down the road of competing visions. We also have a long way to go. But, there is hope.

If I tell you that a person was discriminated against on account of race or ethnicity, you probably will not have a great deal of difficulty thinking this is a violation of the equal protection of law principle, even though we haven’t reached the equal protection cases yet formally in class. You might think to ask whether the discrimination occurred in a public school, employment, a hotel or motel, or a restaurant or café. Or in a private country club not open to the public. Once you start thinking like this, you’re performing Con-law thinking and it is good.

Learn the basic ideas and apply them as you think, daydream, read the newspapers, or take one of our well-known walks. Get used to practicing Con-law-think. You can do the looking up later. You’re trying out your water wings on the high seas of Con-law. Paddle before you swim.

An interesting article, reproduced below, by distinguished Harvard Law Con-law Professor Charles Fried appeared on the Op-Ed page of the New York Times today (10/21/04) here, which illustrates the issue of competing visions. It is particularly insightful, and scholarly, to develop the perspective and ability to describe what the Court does as Prof. Fried does.

See what you think and shoot for this goal yourself. You'll be doing yourself a Con-law favor.

Here’s the text:

Courting Confusion

Published: October 21, 2004

Cambridge, Mass.

Since the mid-1970's the Supreme Court has been fashioning a series of doctrines that have been characterized as conservative, though I would call them liberal with a small l, the liberalism of classic individualism. These decisions - about race, free speech and campaign finance, property rights, constitutional criminal procedure, religion and federalism - have not, as their opponents have caricatured them, been extreme or lacking in nuance.

Criticism of these decisions has come from those on both the right (demanding ideological purity) and left (pressing a coherent vision of welfare-state social democracy). In the last few years, however, there has been a doctrinal drift that neither repudiates the work of the previous 20 years nor embraces the left's lucid competing vision. Two recent cases illustrate this general tendency in two important areas: affirmative action and campaign finance.

In 1978, in the Bakke case, Justice Lewis Powell ruled that the use of race - whether motivated by ameliorative purposes or bigotry - was constitutionally suspect and required the most compelling justification, a justification that the wish to approach proportionality or to overcome past discrimination could not satisfy. This was, in Justice Powell's words, "discrimination for its own sake." Race could be considered, however, to achieve diversity in the classroom in deference to a university's First Amendment right to academic freedom.

In their dissent, Justices William Brennan and Thurgood Marshall offered a contrary vision in which government could use any tool at its disposal to overcome the legacy of slavery and racism, while in later cases, Justices Antonin Scalia and Clarence Thomas insisted on strict colorblindness in (almost) all circumstances. Nonetheless, the so-called Powell doctrine has been potent enough to strike down racial preferences in employment and the awarding of government contracts, and the use of race in drawing electoral districts.

In the two University of Michigan affirmative action cases decided last year, the court finally revisited the issue in the same setting as the Bakke case - and promptly seized both horns of the dilemma. Swearing allegiance to Justice Powell's principles and delivering a lecture about the evil of quotas, it nonetheless endorsed the law school's transparent evasion of those principles, emphasizing the necessity of ensuring substantial minority representation not only in the classroom but also in industry, the military and public life - the very purposes he had denounced.

Campaign-finance law is now similarly muddled. In Buckley v. Valeo in 1976, the court drew a sharp distinction between campaign contributions, which the government might regulate to avoid the appearance of corruption, and campaign expenditures, limits on which the court condemned as the equivalent of regulating speech itself. "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment,'' the court ruled.

Justices Byron White and Marshall and many commentators since have insisted that democracy demands that the government ensure a level playing field. At the other extreme, Chief Justice Warren Burger and, later, Justices Scalia and Thomas have condemned the distinction Buckley drew and insisted that contributions must also be unlimited and unregulated.

Last year, in ruling on the new Bipartisan Campaign Reform Act, the court claimed to endorse Buckley's vision of the First Amendment while abandoning its principal holding. In part to stem the flow of negative issue ads, it approved severe new restrictions on the expenditures of independent groups, allowing Congress to restrict the speech of some so that others not be drowned out - the very purpose Buckley had condemned.

This pattern, defending principles in theory but abandoning them in fact, points to a court that has lost its will to protect and explain the nuanced doctrinal constructions that have threaded their way past opposing extremes. At the same time, the court has lacked the energy to substitute some new and intelligible vision.

Democrats fear a court that will embrace the constitutional rigidities of its most conservative members. Republicans fear a court that will once again seek to impose in the name of the Constitution the agenda of a liberal elite. I fear an indefinite and incoherent prolongation of a fin-de-siècle jurisprudence, where the court serves as nothing more than an ad hoc arbiter of issues it finds too difficult to decide in a principled way.

Charles Fried, a professor of law at Harvard, is the author of "Saying What the Law Is: The Constitution in the Supreme Court."

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Creative Commons License
This work is licensed under a Creative Commons License.
Individual copyrights by other authors may apply.