Constitutional Stupidities, Constitutional Tragedies

Constitutional Stupidities, Constitutional Tragedies

WILLIAM N. ESKRIDGE
SANFORD LEVINSON
Copyright Date: 1998
Published by: NYU Press
Pages: 296
https://www.jstor.org/stable/j.ctt9qg59c
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  • Book Info
    Constitutional Stupidities, Constitutional Tragedies
    Book Description:

    The Constitution is the cornerstone of American government, hailed as one of the greatest contributions of the Western Enlightenment. While many seem content simply to celebrate it, those most familiar with the document invariably find it wanting in at least some aspects. This unique volume brings together many of the country's most esteemed constitutional commentators and invites them to answer two questions: First, what is the stupidest provision of the Constitution? "Stupid" need not mean evil. Thus, a second, related question is whether the scholar-interpreter would be forced to reach truly evil results even if applying his or her own favored theory of constitutional interpretation. The contributors include Lawrence Alexander, Akhil Reed Amar, Jack Balkin, Philip Bobbitt, Gerard Bradley, Rebecca Brown, Steven Calabresi, Lief Carter, Christopher Eisgruber, Lawrence Sager, Marie Failinger, Daniel Farber, James Fleming, Mark Graber, Stephen Griffin, Gary Jacobsohn, Randall Kennedy, Lewis LaRue, Theodore Lowi, Earl Maltz, Michael McConnell, Matthew Michael, Robert Nagel, Daniel Ortiz, Pamela Karlen, Michael Paulsen, Robert Post, Lucas Powe, Dorothy Roberts, Jeffrey Rosen, Frederick Schauer, Michael Seidman, Suzanna Sherry, David Strauss, Laurence Tribe, Mark Tushnet, and John Yoo.

    eISBN: 978-0-8147-2286-2
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Acknowledgments
    (pp. ix-x)
    William N. Eskridge Jr.
  4. Introduction: Constitutional Conversations
    (pp. 1-12)
    William N. Eskridge Jr. and Sanford Levinson

    After a day spent at a Tulane University conference on constitutional design, we were walking back to our hotel through New Orleans’s Garden District. As we admired the majestic old homes, we also talked about the majestic old Constitution. In a jesting mood, we started speculating about the “stupidest” provision of the Constitution. “Stupidest,” in this context, meant the provision that is at the same time most nonsensical and most harmful for today’s polity. Thus, a provision sensible in 1789 but not today would qualify, unless its bad consequences were negligible; that is, the mistake was a “harmless error.” To...

  5. I Constitutional Stupidities
    • CHAPTER 1 A Constitutional Accident Waiting to Happen
      (pp. 15-17)
      Akhil Reed Amar

      In the category “Most Mistaken Part of the Current Constitution,” I nominate the Electoral College. The ingenious scheme of presidential selection set up by Article II and refined by the Twelfth Amendment was a brilliant eighteenth-century invention that makes no sense today. Our system of selecting presidents is a constitutional accident waiting to happen.

      I nominate the Electoral College in part because some constitutional scholars might tend to overlook its flaws. Constitutional Law courses typically stress courts, cases, and clauses that get litigated. Despite the vast constitutional significance of the presidency, it is woefully understudied in law schools today. (It...

    • CHAPTER 2 Parlor Games
      (pp. 18-21)
      Philip Bobbitt

      The Constitution is not perfect. Indeed, I do not know what “perfection” is in a constitution, which is an instrument for human hands and thus must bear within its possibilities all the potential for misuse that comes with the user. What I am sure of is that “perfect” does not mean “never needing to be amended,” since one important part of the Constitution is its provision for amendment (although I am inclined to believe that few of the amendments to the Constitution were actually necessary).

      That said, a competition to find the “stupidest provision of the Constitution” is, to my...

    • CHAPTER 3 An Agenda for Constitutional Reform
      (pp. 22-27)
      Steven G. Calabresi

      The U.S. Constitution is, in my judgment, the best constitution human beings have ever devised. Its structural hallmarks of federalism and separated powers work brilliantly to protect liberty from both public and private violence. Government action is hard to obtain (to the dismay of many rent seekers), but where a broad public consensus exists, national law making readily occurs.¹ Individual rights are well secured by the Bill of Rights, the post-Civil War amendments, and an assortment of other clauses, yet most vital public welfare measures usually get upheld. Lastly, the amendment process is tough and hard to navigate, as it...

    • CHAPTER 4 ʺClause and Effectʺ: An Imagined Conversation with Sanford Levinson
      (pp. 28-34)
      Lief H. Carter

      This essay reprints, unmodified, the essay that originally appeared inConstitutional Commentary. I then add some remarks appropriate to this expanded volume.

      I could not rewrite my original essay and stay faithful to its argument. That argument, in a nutshell, claims that truth abides in context, not text. Context—both the pragmatic elements of specific problems and the moods and expectations which surround them—powers all discourse, including constitutional discourse. We use constitutional texts more like steering wheels than engines, to move discourse in directions we desire. And since each of us desires to move in our own direction, we...

    • CHAPTER 5 The One Senator, One Vote Clauses
      (pp. 35-39)
      William N. Eskridge Jr.

      Article I, Section 3, Clause 1 of the Constitution provides that the Senate “shall be composed of two Senators from each State,… and each Senator shall have one Vote.” Amending the original Constitution’s method for selecting senators, the Seventeenth Amendment, Section 1 repeats this language precisely. The requirement that each state have two senators was part of the “Great Compromise” reached in Philadelphia and may still be defensible today; it assures that the Senate will be a deliberative body with relatively few members and, plausibly, that the interests of the states qua states might be better represented. The requirement that...

    • CHAPTER 6 Our (Almost) Perfect Constitution
      (pp. 40-42)
      Daniel A. Farber

      I doubt that we would write the Constitution in quite the same way if we were to undertake the task afresh. Would anyone today actually propose giving the Providence metropolitan area the same representation in one branch of the legislature as half the West Coast? Nor do I doubt that there are details of the Constitution in need of improvement. (Like the editors of this volume, I regard slavery as too obvious a failing to require discussion here.) The interesting question is not whether the Constitution might not have been improved here or there. As with any human document, the...

    • CHAPTER 7 Unnecessary and Unintelligible
      (pp. 43-50)
      Mark Graber

      No constitution produced after much deliberation by reasonably intelligent persons is likely to contain passages that are “foolish; dull in intellect; nonsensical.”¹ Many constitutional provisions quickly outlived their original purpose (the Electoral College) and others are venal (the not-so-oblique protections of slavery). Nevertheless, contemporary claims that some constitutional provision is plainly stupid probably overlook the intelligent reasons why that particular clause was inserted into the Constitution or the sound reasons the Framers had for choosing that particular language. Constitutional language that seems foolish from some perspectives probably remains in the text because the provision in question serves the interests of...

    • CHAPTER 8 The Nominee Is … Article V
      (pp. 51-53)
      Stephen M. Griffin

      In any list of least favorite constitutional provisions, we should not ignore the provisions protecting slavery, such as Article I, Section 9, Clause 1 (providing that the slave trade could not be prohibited prior to 1808) and Article IV, Section 2, Clause 3 (the Fugitive Slave Clause). These provisions may have been superseded, but they have not been expunged from the text and should not be forgotten.

      That said, there are a number of constitutional provisions that have always struck me as questionable. Article I, Section 4 leaves the procedures for holding federal elections in the hands of the states....

    • CHAPTER 9 A Natural Aristocracy?
      (pp. 54-56)
      Randall Kennedy

      One concrete way of measuring the extent to which people affiliated with different social groups are full and equal members of this nation is to ask whether a person associated with that group could plausibly be elevated to the highest office in the land. The added difficulties, solely on the basis of race or gender, that an African-American or female presidential candidate faces, regardless of that person’s talents, are a testament to the extent to which this society is still marked by racism and sexism. One might take some minimal comfort, though, in recognizing that their difficulties are the consequence...

    • CHAPTER 10 ʺNeither Force nor Willʺ
      (pp. 57-60)
      L. H. LaRue

      If we are to choose which provision of the Constitution has turned out to be the stupidest, we must be allowed to use hindsight. The Constitution includes some provisions that made good sense in their day but on which time has been hard. With the use of hindsight, I choose the second sentence of Section 1 of Article III: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour….”

      Perhaps there are others who, like me, find the phrase “during good Behaviour” to be highly ambiguous. And some of these may even join me...

    • CHAPTER 11 Presidential Elections and Constitutional Stupidities
      (pp. 61-66)
      Sanford Levinson

      On November 4, 1980, Ronald Reagan decisively defeated Jimmy Carter, the incumbent president (who had himself defeated an incumbent president four years before). Perhaps more to the point, in the 1980 election the electorate “repudiated” much of the legacy of the Democratic Party and declared its preference for leadership in a significantly different direction.¹ Ronald Reagan did not, however, take office until January 20, 1981. On November 8, 1992, the incumbent, President George Bush, garnered less than 40 percent of the popular vote; Bill Clinton was elected with 43 percent of the popular vote, while Ross Perot got 19 percent....

    • CHAPTER 12 The Presidential Age Requirement and Public Policy Agenda Setting
      (pp. 67-70)
      Matthew D. Michael

      As this volume illustrates, several provisions in the Constitution have outlived their usefulness and now can be viewed as mere “stupidities.” These stupidities become much more worrisome, however, when they transcend the realm of mere obsolescence to engender significant practical problems for the American polity. One area in which these types of troubling provisions seem concentrated is in the Constitution’s requirements for the selection of the president. Indeed, the Electoral College endures perennial assault because of the prospect that a candidate with a majority of popular votes might lose the presidency, while the nativist requirement for presidential candidates strikes some...

    • CHAPTER 13 The Last Centrifugal Force
      (pp. 71-74)
      Robert F. Nagel

      The Constitution of 1787 was debated against a backdrop of rebellion, defiance, and factionalism. Disintegration seemed almost a law of nature. As Hamilton put it, “[I]n every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate … orbs by the operation of which there will be a perpetual effort in each to fly off from the common center.”¹ Proponents of the Constitution appealed to this centrifugal principle, not only in explaining the need for a stronger national government,...

    • CHAPTER 14 Someone Should Have Told Spiro Agnew
      (pp. 75-76)
      Michael Stokes Paulsen

      Let us assume that I am elected vice president and am an evil, diabolical man. I behave badly, even criminally in office. The House of Representatives impeaches me. I solemnly march into the Senate chamber for my trial. My team of lawyers takes its place in the designated spot on the floor. And I pick up the gavel and assume my post as the presiding officer at my own impeachment trial.

      Under Article I, Section 3, Clause 4 of the Constitution, the vice president of the United States is “President of the Senate.” Clause 6 of the same section of...

    • CHAPTER 15 Old People and Good Behavior
      (pp. 77-80)
      L. A. Powe Jr.

      Just what was wrong with the Nine Old Men? Their votes? Not taken as a whole, for the “Old” included Brandeis.¹ That their judicial philosophies were without redeeming social value? Again, it cannot be, for their philosophies ran the gamut from the liberal Brandeis to the moderate Hughes to the conservative Sutherland to the almost limitlessly reactionary McReynolds. No, what was wrong with them is that they were old, that they had not left the Court, and that they intended to outlast the new political order. Butler, the youngest of the group over seventy, had been born the year after...

    • CHAPTER 16 Divided Suffrage
      (pp. 81-83)
      Jeffrey Rosen

      The biggest constitutional mistake? As the recent wave of constitution making in Eastern Europe suggests, future Solons and Lycurguses are not likely to be very interested in quibbling over the details of a Bill of Rights. Instead, the critical question is how to structure democratic elections. And on this point, the most misguided provision in the Constitution is not the Electoral College, which remains theoretically mystifying but has not bothered anyone for more than a century. Far worse are Sections 2 and 4 of Article I and (if I am allowed more than one villain) Section 2 of the Fourteenth...

    • CHAPTER 17 The Constitution of Fear
      (pp. 84-89)
      Frederick Schauer

      At various places along the Massachusetts Turnpike, a limited-access toll road with a speed limit of sixty-five miles per hour in most places, there are signs cautioning drivers not to back up on the turnpike if they have missed their desired exit. These signs tell us much about Massachusetts drivers, since in most other states we could not imagine the need for such signs, precisely because we could scarcely imagine the possibility of drivers even contemplating the behavior that Massachusetts sees a need to warn against.

      The phenomenon on the Massachusetts Turnpike is hardly unique, for with some frequency we...

    • CHAPTER 18 Criminal Procedure as the Servant of Politics
      (pp. 90-94)
      Louis Michael Seidman

      Any assessment of what the Constitution is bad at must be grounded in a theory of what it is good for. So let me begin with a brief statement of such a theory: the Constitution is mostly good for providing a platform, external from our ordinary politics, from which current arrangements can be criticized.

      This theory does not entail the view that all that matters is criticism. Any sensible political system requires legitimation as well as destabilization. The theory merely asserts that our ordinary political processes already provide very powerful legitimation. We do not needconstitutional lawto endorse results...

    • CHAPTER 19 Our Unconstitutional Senate
      (pp. 95-97)
      Suzanna Sherry

      In the race to the bottom that characterizes this part of the volume, I cast my vote for Article I, Section 3: “The Senate of the United States shall be composed of two Senators from each State….” Indeed, were this provision not unequivocally enshrined in the Constitution itself (Article V), it would undoubtedly be unconstitutional, for, as the United States Supreme Court has recognized, it is in conflict with the most basic principles of democracy underlying our Constitution and the form of government it establishes.

      The Court has held that “[legislators represent people, not trees or acres,”¹ and that “[t]he...

    • CHAPTER 20 How to Violate the Constitution without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment
      (pp. 98-102)
      Laurence H. Tribe

      Shortly before the proposed Balanced Budget Amendment went down to defeat by a single vote in March 1995,¹ Kansas senator Nancy Kassebaum explained her reason for dropping her previous opposition to that much debated but still undelivered change in the United States Constitution.² It was not that the senator had overcome her doubts about the ability of the Balanced Budget Amendment actually to curb the evils of an ever increasing deficit. No, the reason was more subtle: “It may be like the Prohibition Amendment,” she explained. “We may just have to get it out of our system.” It was true...

    • CHAPTER 21 The Whole Thing
      (pp. 103-106)
      Mark Tushnet

      The question seems to me badly posed, for two reasons. It assumes that constitutional provisions “are” something-or-other, which can be laid against the metric by which we measure stupidity. But, as this reference toUnited States v. Butler¹ suggests, it is no longer clear to many of us that constitutional provisions have such a quality.

      Consider, for example, someone who believes that the metric for stupidity is defined by the degree to which a policy advances the interests of some particular favored group. Perhaps at one time the First Amendment as then interpreted advanced those interests, because the major threats...

    • CHAPTER 22 How Stupid Can a Coasean Constitution Be?
      (pp. 107-112)
      William N. Eskridge Jr. and Sanford Levinson

      The Constitution undoubtedly contains many unwise, even stupid, provisions, and many more that are trivial. Its assumption of severely limited government, concentrated in localities, has become increasingly unrealistic. Some of its best ideas, such as a system of checks and balances and an independent judiciary, work less well today than they did at the founding. The Slavery Clauses still mar the document, even if they have been superseded. Robin West has suggested that one reason to be ambivalent about activist judicial review is that the Constitution is a retrograde document.¹ Most of the essays in the first half of this...

  6. II Constitutional Tragedies
    • CHAPTER 23 Constitutional Tragedies and Giving Refuge to the Devil
      (pp. 115-120)
      Larry Alexander

      My task, as I understand it, is the following: I am to assume that I am the sole justice on the United States Supreme Court, so that I can employ my pet theory of constitutional interpretation and have it be outcome-determinative. The question that I must then answer is what case or class of cases would present me with a tragic choice between proper constitutional jurisprudence and just outcome. What cases are “constitutional tragedies” under a regime of “Alexander’s constitutional interpretation”?

      It is a nice question, although I expect that many of those charged with answering it will duck or...

    • CHAPTER 24 The Meaning of Constitutional Tragedy
      (pp. 121-128)
      J. M. Balkin

      How should we understand the notion of constitutional tragedy? One approach views it as a matter of interpretive theory: constitutional tragedies occur when a favored method of constitutional interpretation produces regrettable results. A second approach focuses on constitutional evil: the possibility that the Constitution permits or requires serious and profound injustices, like slavery. Constitutional tragedy occurs when we cannot escape the possibility of constitutional evil.

      The second approach is surely related to the first, since the avoidability of constitutional evil depends on the limits of constitutional interpretation. Optimistic interpreters might insist that constitutional evils are usually the result of improper...

    • CHAPTER 25 The Tragic Case of Capital Punishment
      (pp. 129-138)
      Gerard V. Bradley

      There were 56 tragic constitutional results in 1995, and there have been 313 since 1976¹ when the Supreme Court upheld revised death penalty laws.² There is little reason to believe that capital punishment will expire any time soon: the 1995 total was the highest since 1957; with the retirements of Justices Brennan, Marshall, and Blackmun, no Supreme Court justice believes capital punishment is, in principle, unconstitutional.

      Under the method of constitutional interpretation that I defend—a certain type of “originalism”³—capital punishment is all but certainly constitutional. It is, nevertheless, always immoral, at least in a developed society like the...

    • CHAPTER 26 Constitutional Tragedies: The Dark Side of Judgment
      (pp. 139-146)
      Rebecca L. Brown

      The anxiety that many feel over the role of an independent court in a democracy has eluded me. As a nation that values liberty, we should celebrate such an institution rather than apologize for it. After all, the Constitution does as much to limit the demos as to empower it, and neither goal should be understood as deviant. In short, judges should be allowed to judge.

      Surely Felix Frankfurter had something like this view in mind when he called upon judges for “allegiance to nothing except the effort, amid tangled words and limited insights, to find the path through precedent,...

    • CHAPTER 27 Good Constitutions and Bad Choices
      (pp. 147-151)
      Christopher L. Eisgruber and Lawrence G. Sager

      Compared to many, we are optimistic about the Constitution and generous in our view of the capacity and authority of constitutional judges. In our view, the Constitution aims at justice and sponsors an active partnership among framers, legislators, judges, and other political actors. For their part, judges are invited and required to exercise considerable independent moral judgment in the course of filling in the abstract liberty-bearing provisions of the Constitution with concrete legal doctrine. Judges bring valuable, institutionally secured abilities to this undertaking, and overall, we believe, our practice is reasonably well suited to the project of identifying and implementing...

    • CHAPTER 28 Jocasta Undone: Constitutional Courts in the Midst of Life and Death
      (pp. 152-161)
      Marie A. Failinger

      For American constitutional judges, tragedy does not often present itself as Greek. Neither the ancient tragedy of the city-state felled by the gods¹ nor its more modern form, the Oedipal character who inexorably follows his tragic flaw toward doom for his people, is likely to be the stuff of judicial review. Of course, judicial commentators have accused various justices or benches of the Supreme Court of Oedipal hubris, of moving without humility to destroy the constitutional Progenitor of the Court, the people’s will, most notably inDred Scott² orRoe v. Wade

      Yet, even if one might rightly claim that...

    • CHAPTER 29 Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?
      (pp. 162-171)
      James E. Fleming

      What is a constitutional tragedy? How does it differ from or relate to an imperfection in the constitutional document (for example, the imperfect provision for affirmative liberties, which has led to decisions likeDandridge v. Williams,San Antonio v. Rodriguez,Harris v. McRae, andDeShaney v. Winnebago County)?¹ A failure of the constitutional order (for example, the failure to generate the civic virtue necessary for citizens to affirm basic liberties, which might lead to a breakdown of the wall of separation between church and state)?² A decision in constitutional law that has horrible consequences for the lives of particular citizens...

    • CHAPTER 30 Dramatic Jurisprudence
      (pp. 172-179)
      Gary Jacobsohn

      ʺThe facts of this case are undeniably tragic.” So began Chief Justice William Rehnquist’s opinion for the Supreme Court inDeshaney v. Winnebago County Dept. of Social Services.¹ The reference was to the sad story of young Joshua Deshaney, a child beaten into a life-threatening coma by his father. Adding to the poignancy of the tale, as well as to its constitutional significance, was that this horrible act might have been prevented had the local child-welfare agency intervened more aggressively on the basis of its knowledge of the father’s previous abuse of his son. But the tragic dimensions of the...

    • CHAPTER 31 Constitutional Farce
      (pp. 180-188)
      Pamela S. Karlan and Daniel R. Ortiz

      Ttragedy? We thought very hard. What is the most repugnant substantive result that a conscientious judge would feel compelled to support in interpreting the Constitution? We had no trouble coming up with awful outcomes. But each time we did, we found that without too much difficulty we could work up colorable constitutional arguments against them. That is no credit to our genius. The range of permissible constitutional arguments now extends so far that a few workable ones are always available in a pinch. Indeed, faced with this bounty we soon had to ask ourselves if there areanysignificant substantive...

    • CHAPTER 32 Constitutional Merry-Go-Round: The First Time Tragedy, the Second Time Farce
      (pp. 189-202)
      Theodore J. Lowi

      If there ever was a case for originalism, it is the separation of powers. The Framers were unmistakably clear in their intent, and they repeated themselves often, just to be sure their offspring would get the message. “Separation of powers” as a label was never used. But the principle itself was referred to, early and often. Madison, who is responsible for the Notes of the Debates at the Philadelphia Convention, took many occasions to repeat the principle, especially in several of his essays forThe Federalist:

      No political truth is certainly of greater intrinsic value, or is stamped with the...

    • CHAPTER 33 Glamis, Yes; Cawdor, Yes—but King of Scotland?
      (pp. 203-206)
      Michael W. McConnell

      This is not the first time a group has devoted its discussions to the various “tragedies” that could result from the United States Constitution. That is what the delegates to the Virginia ratifying convention were doing in the early summer of 1788. For the most part, their predictions of constitutional tragedy were not much different from those produced by the panel assembled in this volume: the new federal government could be unfair, unrepresentative, oppressive, and neglectful of the common good. James Madison had this response:

      I have observed, that gentlemen suppose, that the general legislature will do every mischief they...

    • CHAPTER 34 Brown v. Board of Education
      (pp. 207-216)
      Earl M. Maltz

      Any list of constitutional tragedies must includeBrown v. Board of Education,¹ in which the Court concluded that the maintenance of racially segregated schools was unconstitutional. The tragedy ofBrowndoes not lie in the Court’s substantive vision. Racial segregation is morally indefensible; moreover, it is terrible public policy, tending to deprive society at large of the potential contributions of talented members of minority races. Instead, the tragedy ofBrownis that the result in the case cannot be derived from the original understanding of the Fourteenth Amendment.

      In measuring the decision inBrownagainst the original understanding, the starting...

    • CHAPTER 35 Tragedy and Constitutional Interpretation: The California Civil Rights Initiative
      (pp. 217-225)
      Robert Post

      We are all familiar with circumstances, like those portrayed by Herman Melville inBilly Budd, where the law dictates tragic results. In these circumstances tragedy appears to flow from law’s positivism, from the disjunction between legal rules and moral sensibility. The question I wish to address in this paper is whether we can avoid such tragic outcomes by eliminating this disjunction. Specifically, I ask whether we can escape constitutional tragedy by incorporating ordinary moral principles into our practice of constitutional interpretation.

      To pursue this inquiry we first need a working definition of tragedy. Classical Greek tragedy, at least as expounded...

    • CHAPTER 36 The Meaning of Blacksʹ Fidelity to the Constitution
      (pp. 226-234)
      Dorothy E. Roberts

      What is the worst outcome the conscientious constitutionalist might be compelled to endorse? Does the possibility of such a tragedy shake our faith in the Constitution? The bite in this line of inquiry depends on the presumption of constitutional fidelity. Within our legal culture, fidelity to the Constitution is usually treated as an unquestioned virtue.¹ For Black Americans, the first question is all too easy; they have stared the answer in the face for three centuries. The most painful tragedy the conscientious constitutionalist might have to concede is her own exclusion from the Constitution’s domain. In the case of Black...

    • CHAPTER 37 Tragedies under the Common Law Constitution
      (pp. 235-240)
      David A. Strauss

      Some people defend their positions on contested constitutional questions—for example, questions about the religion clauses or the separation of powers—by saying that their approach to constitutional interpretation is to follow the intentions of the Framers. One way to test their commitment to that approach is to ask: Do the Framers’ “intentions” just happen to correspond to the things you would favor anyway? Of course, it is possible that the Framers got everything right. But that seems pretty unlikely, and if the Framers’ “intentions” are closely aligned with the interpreter’s views, then one might reasonably suspect that the interpreter...

    • CHAPTER 38 McCulloch v. Maryland
      (pp. 241-247)
      John Yoo

      The last time that the editors of this volume sought out participants, they said they called upon a number of thoughtful and provocative constitutional scholars. I am convinced that I fall into the latter category, for I certainly have yet to show that I belong in the former. In an effort to live up to the provocative billing, and the editors’ call for seriousness without seriosity, I propose as a tragic constitutional decision the case ofMcCulloch v. Maryland.¹ But before the traditional pillars of constitutional-law teaching fall around me, I want to attempt to justify my choice based on...

    • CHAPTER 39 Antigone and Creon
      (pp. 248-256)
      William N. Eskridge Jr. and Sanford Levinson

      If the selections on constitutional stupidities illuminate the relatively unadorned document itself, the selections on constitutional tragedies illuminate its academic interpreters, and indeed the state of constitutional theory. It strikes us as too harsh to say, as Pamela Karlan and Daniel Ortiz do, that law professors’ theories of constitutional interpretation are best characterized neither as tragedy nor comedy but as farce.¹ Yet it is fair to say that the academy too little appreciates the role of tragedy in constitutional theory, and a goal of this volume is to reengage law professors with tragedy.

      The selections in this part of the...

  7. APPENDIX: The Constitution of the United States
    (pp. 257-278)
  8. About the Contributors
    (pp. 279-284)
  9. Index
    (pp. 285-286)
  10. Back Matter
    (pp. 287-287)