My Post-Dobbs Constitutional Law II Opening Spiel
[Dear Readers: This is the introductory lecture that I gave this morning, Wednesday, August 24, to my students in the second half of the year-long Constitutional Law sequence at Maryland Carey Law. The first half of the sequence was in the Spring of 2022.]
Welcome, it's great to see so many of you here.
Every year, teaching constitutional law is unique—there are always new cases or other developments to integrate. Even so this year seems special.
Over the last few months I've had conversations with, or read posts by, several law professors—some here, more elsewhere. Each of them has offered insights into how to approach constitutional law this year. The elephant in the room of course is June 2022 decision, Dobbs v. Jackson Women’s Health Organization, which ended Roe v. Wade after 50 years. For many this marks a seismic shift that’s not merely critical to acknowledge but of sufficient magnitude to warrant a change in pedagogy. Some thoughtful professors here and elsewhere at least considered modifying their syllabi, in terms of organization, pedagogical style, and scope of coverage. I considered this, but viewing Dobbs in a broader perspective, I came out differently.
In these remarks I’ll be mentioning some cases or doctrines you likely heard of and others you might not have. I plan to post this, so you can go back. Please don’t be concerned if you miss some details now.
I've been teaching constitutional law since 1992. I began at George Mason Law School, now named for Antonin Scalia, where I was hired to replace Robert Bork, who had been teaching the course as adjunct professor after his unsuccessful bid to replace Justice Powell on the Supreme Court. At the time, George Mason may have been the only law school lacking a full-time professor teaching constitutional law.
I'm 61 years old, and last year ended my thirtieth year of teaching this very course. After this year, I’ll have taught constitutional law for at least half of my life for as long as I continue to do so. As I reflect on the three decades I’ve been doing this, I see several profound doctrinal shifts, each of which is critical to acknowledge: (1) The recognition of the Second Amendment as protecting an individual right in the 2008 case, District of Columbia v. Heller, and applied to states and municipalities in the 2010 case, McDonald v. City of Chicago; (2) formally withdrawing the federal judiciary from checking against hyper-partisan gerrymandering, which lets one party gain and keep disproportionate political power, in the 2019 case, Rucho v. Common Cause; (3) beginning in the early 1990s, gradually removing checks designed to ensure the project of integrating public schools based on race, beginning with the 1991 decision, Board of Ed. v. Dowell and the 1992 decision Freeman v. Pitts; (4) In 2010 recognizing corporations as persons in Citizens United v. FEC, inviting notable distortions in political speech as compared with partisan demographics; (5) echoing Ronald Reagan’s plea to Mikhail Gorbachev to “tear down that wall,” just this past term, in Carson v. Makin, striking down a ban on public tuition assistance for sectarian schools, this time removing the wall between church and state.
In spite of these longer doctrinal developments, I can't deny that there’s something unique about Dobbs. My intuition is that one reason is reflected in this very classroom along with so many others across the country. Two years ago, we had an entering class that was two-thirds women. By my estimation, about 60% of you are women.
[Quick note: For those who are interested, this link will take you to an article demonstrating that the trend I'm observing is national; as a percentage, in comparison with men, more and more women have been enrolling in law schools and have become professors of law and law school deans over the past several decades. I explained this and displayed Figure 2 from the link to my students.]
In some respects, perhaps counter intuitively, Dobbs might be most analogous to Obergefell v Hodges, the 2015 Supreme Court decision recognizing a right to same-sex marriage. Let me explain. Both cases hit home for nearly every family in America. Like the mid-1990s parlor game, Six Degrees of Kevin Bacon, for most people few degrees of separation are required for someone whose life was favorably affected by Obergefell, which finally gave lawful status to sometimes decades-long relationships, creating marriage equality. Although Dobbs, unlike Obergefell, retrenches on a previously identified right, along with Roe and the 1992 abortion decision, Planned Parenthood v. Casey, the case potentially affects nearly every family in America.
I suspect that at some point this summer, perhaps a Fourth of July barbeque, shortly after Dobbs was issued, many of you were asked what you thought about it. I know I was. I suspect that those of you who are women, or able to become pregnant, were asked this with a kind of knowing look. That look may have suggested that as a young professional, you likely formed impressions for reasons that aren’t purely doctrinal.
There's something deeply personal about the question of abortion and the impact it has on our lives. And yet we must also recognize frankly that those of you privileged to be in this room almost certainly have the education and resources such that were you in a jurisdiction limiting your capacity to terminate an unwanted pregnancy, you would have options. One question that makes Dobbs so notable is considering whether the classic reliance interests that might have dominated conversations at Fourth of July barbeques are necessarily the most significant concerns respecting Dobbs, with just five Justice formally abandoning a fifty-year-old precedent.
Beyond that rest several deeper questions about how, or even whether, to balance any number of considerations informing constitutional decision making, including whether to retain precedents that some regard initially mistaken: (1) textualism, meaning what the often-arcane wording of the oldest operating national constitution in the world says; (2) originalism, meaning what those who wrote those words might have had in mind, and whether as applied to modern problems this is plausibly knowable; (3) original public meaning, meaning what the words were understood to convey at the time they were written and enacted, as opposed to how we might construe those words today; (4) precedent, including but not limited to reliance interests, however defined; (5) contemporary policy concerns, which might extend beyond reliance, and (6) what some might call, and others deride as, living constitutionalism, meaning how decisions align with contemporary, as opposed to contemporaneous, values. In this course we’ll encounter all of these ideas. Here’s a sneak preview: none has uniformly dominated either the case law or public discourse, and it’s debatable whether methods of interpretation, as opposed to narrower case holdings, are themselves considered precedential.
I suppose this is as good a time as any to acknowledge something I'm sure all of you have figured out. I’ve mentioned my age, 61, and, as you can see, I am a white male. I’m cisgender and with my wife, father to three adult children all in and around your ages. In this course, we'll be addressing a wide range of subjects focused on race, gender, sexual orientation, and individual rights, among others. To be sure a professor who is a person of color, identifies as female, and is gay or perhaps non-binary, would bring to bear perspectives informed by her, his, or their experience, with a background that differs from my own. That's important to acknowledge. But it's also important to express my view that this all must be regarded individually, with no background or demographic regarded as its own basis for qualification or disqualification.
In a case we’ll study from 2003, Grutter v. Bollinger, the Supreme Court upheld the University of Michigan Law School’s race-based affirmative action program at the same time it struck down the university’s parallel undergraduate program in Gratz v. Bollinger. Writing for the Grutter majority, Justice O'Connor acknowledged that a benefit of classroom diversity, perhaps especially in a law school setting, is ensuring that people do not stand in as spokespersons for whatever group they’re identified with. I want to emphasize that point here. I hope in this class to invite broad participation informed by the perspectives that you all bring, which is inevitably different from the perspective that I bring. So, I want to emphasize that if you are African American, Asian American, White, Christian, Jewish, Muslim, Secular, Atheist, a man, woman, non-binary, straight or gay, when you participate, your insights might be informed by your experience and background, but that none of us should construe what you say as expressing a perspective for any group of which you happen to be a member. Blacks can and do oppose or support affirmative action; women can and do oppose or support Dobbs. Although I’ve not yet met a gay man or woman who opposes Obergefell, I’m sure they too are out there.
As I previously mentioned, some constitutional law professors regard Dobbs a game changer that demands changing the syllabus and approaches to pedagogy. Others claim nothing has really changed if we take as a starting point that the line separating law and politics isn't merely permeable; it's non-existent. On that premise, during periods marked by shifts in power, we should simply expect those holding it to effectuate their preferences even against broadly held contrary preferences embraced throughout the country. I’ll say here that I don’t buy into the premise, at least not completely. I believe politics affects law, and law politics, but that neither insight eliminates the need to distinguish their respective domains.
As for me, I’ve made some adjustments, but I haven’t fundamentally changed the course structure or my planned pedagogy. We will get to individual rights, including abortion, in due course, which is roughly two thirds of the way through the syllabus. As I have always done, we’ll start with race because in my view, that history has uniquely affected practically all areas of our equal protection and due process jurisprudence in ways that make it difficult to convey the caselaw on individual rights without that initial firm grounding. But I want to be clear. This is my view, and I have thoughtful colleagues here and elsewhere who have a different one. None of us are right or wrong. We each take the approach that lets us best convey how to make sense of the doctrines we teach.
Typically, I end my course with a short talk rather than starting with one. So, there’s one change in my pedagogy as I enter my thirty-first year of teaching. I also want to acknowledge that in this classroom and others across the country are students who will take opposing views on Dobbs and many other cases we’ll encounter, several of which I’ve mentioned this morning. When appropriate to disclose them, I’ll share my views. You’re entitled to know them. Some of you will be deeply troubled by several of the doctrinal developments I’ve mentioned. Others might take the view that the Supreme Court is finally getting our nation back on the right track. We can disagree on these matters, even strongly. All I ask is that we also do our best to respect each other’s views no matter how strong our agreement or disagreement. That’s also an important lesson in effective lawyering.
I'm looking forward to a wonderful semester of learning with all of you. Let me now allow a few minutes to comments before we dig into our very first anti-canonical case, Dred Scott v. Sanford.