Political footballs and constitutional law

That's the title of a very interesting LA Times article by Rosa Brooks. Here is an excerpt:

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."

What are your thoughts?

UC Case

Here is a link to the complaint in the University of California case.

2006 Seminar: Constitutional Amendments

For class next week (January 19), each of you should come prepared to discuss your own favorite new amendment to the U.S. Constitution. Please come up with a draft of your basic idea for a new amendment to the Constitution. In other words, if you could add one new provision, what would it be?

For example, if I were Platonic Guardian for a Day, I would amend the constitution to require a 7/9ths vote of the Court before declaring federal or state laws unconstitutional? The idea is that duly-enacted laws and the process of democratic self-government should have a presumption of constitutionality that can be overcome only by a strong consensus on the Court that the democratic branches of government have acted outside the Constitution. This allows the Court to exercise judicial review by consensus, but not by a bare majority vote. What do y'all think about my proposed amendment?

Another proposed amendment is that suggested by Professors Carrington and Crampton. Actually, they propose this change to be adopted by statute, but it might better be adopted as an Amendment to Article III. Their suggestion is basically to appoint Supreme Court justices to serve only for a term of 18 years. Here is a link to their proposal. Please come to class prepared to discuss it.

2006 Seminar: Citing Foreign Law in Constitutional Decisions

Here is a link to a recent debate between Justice Scalia and Justice Breyer on how foreign law should be utilized by American courts deciding cases under the U.S. Constitution.

Harvard Professor Mary Ann Glendon has this essay in the WSJ.

Posner.

Jackson.

Here is a link to a discussion of a very important case, decided by the Swedish Supreme Court, concerning a "hate speech" prosecution of Pastor Ake Green for preaching a sermon on sin and homosexuality. And here is a link to the English translation of that Court's opinion.