Max Stearns
Almost a year ago, in January 2020, when I started my Constitutional Law I class, I began a new tradition. I have always enjoyed providing song references that connect to the cases and themes in my classes. And yet I increasingly realized for many students my musical references seemed a bit dated. Keeping in mind that I just turned sixty, this might not be terribly surprising. Still, it saddened me a bit since I think the artists and songs I include when teaching truly are worth knowing. And so this past year, I began accompanying my in-class references with periodic emails that linked YouTube versions of the songs I mentioned in class, along with written explanations and, sometimes, selected “deeper tracks.”
This took on a life of its own, especially when one of my amazing students, Ms. Jennifer Nigro, began compiling all of the songs into a Spotify playlist, titled the “Constitutional Law’s Greatest Hits: Another Kind of Judicial Review.” The playlist now has 52 songs and a total run time of three hours and seven minutes. It includes some truly fantastic, and quite varied, music. In this earlier post, I explained the songs that related to the first half of the course, Constitutional Law I. I also explained that Ms. Nigro had added some of her own songs, every one of which was a wonderful playlist addition.
At Maryland Carey Law, Constitutional Law is a year-long sequence, with Constitutional Law I in the first year (1L) spring, and Constitutional Law II, in the second year (2L) fall. Constitutional Law I went virtual due to the pandemic immediately following March break in the spring 2020 term, and Constitutional Law II this fall was entirely virtual. Ms. Nigro, who thankfully stuck with me for the second half of the course, added my somewhat more limited Constitutional Law musical entries, along with making several wonderful contributions of her own. The completed playlist now includes tracks for the entire year-long course.
As with Constitutional Law I, some songs are inspired by cases we studied, broader doctrines or themes, and current events. Because this was a truly historical year in so many ways, this includes notable political developments.
Here goes:
Election 2020 may well have been the toughest election cycle in modern history, in some ways even more so than the grueling Election 2016, given the pandemic, the economic downturn, and too many other remarkable and unprecedented events over the past four years to list. In the Monday class, November 2, 2020, one day before the election, I mentioned that I had been thinking of the song from the musical Annie, “Tomorrow.”
For the first time in history, a sitting President was unwilling to graciously acknowledge having lost an election, a necessary step in what, until now, has been a major contribution that the United States has modeled to the world: the peaceful transition of power. Instead, the sitting President continues to insist upon a stolen election, despite a lack of any evidence of voter fraud or misbehavior among those who tallied the votes and reported the results.
On the night of November 7, 2020, when Joe Biden and Kamala Harris finally spoke publicly, acknowledging what everyone knew—they had succeeded in defeating Donald Trump and Mike Pence—I was moved nearly to tears by the inclusion of two songs accompanying the fireworks display, both inspired by Biden’s son, Beau, and also played at his funeral. This marks the first Christian hymnal on this Jewish professor’s Constitutional Law playlist. The playlist now includes the Walkers to Heaven version of “On Eagle’s Wings,” and also Coldplay, “A Sky Full of Stars,” one of Beau's favorite songs. I added another song not played that night. Although I did not mention why at the time, I will now. Because in so many ways what we have all experienced these past four years seemed “a long and lonely winter,” and helpfully benefitted by some passing inclement weather, I also included The Beatles, “Here Comes the Sun.”
I began the course coverage with equal protection and cases implicating the classification of differing groups of persons. This generally involves laws based on race, sex, or sexual orientation, or nominally neutral laws that nonetheless affect these or other groups in distinct and problematic ways. Several added songs involve related cases or doctrines.
In Plessy v. Ferguson (1896), the Supreme Court sustained a racial exclusion for passage on a railway car, with some exceptions, against a claim by Plessy, who was 7/8 white, and who challenged the law as violating equal protection. The case infamously announced the so-called separate but equal doctrine, although however disdainful condoning separate was, equal was rarely required or met. In a famous dissent that, for its time, took a liberal position, albeit with problematic passages, Justice Harlan stated that the Constitution is color blind. I always point out the troublesome nature of the metaphor—those who are color blind see only black and white—and it's clear Harlan intended the opposite. Harlan claimed the Constitution prohibits the government from relying upon race as the basis for distinction. The playlist now includes the richly colorful Ray Charles version of “What a Wonderful World.” (The original Louis Armstrong version was already included). Ms. Nigro also added The Beatles hit "Blackbird," inspired by Paul McCartney’s response to personal observations respecting the Jim Crow South.
When we changed topic to gender discrimination, I began with the title from Salt-N-Pepa “Let’s Talk About Sex.” One of the major cases involved an equal protection challenge to the men-only admissions regime at the Virginia Military Institute ("VMI"). In United States v. Virginia (1996), Justice Ruth Bader Ginsburg, for a majority, struck down historical exclusion of women, applying the Supreme Court's intermediate scrutiny test. This posed a challenge, requiring her to tweak the test, because VMI was able to show that admitting women would, as a result of what has become known as real-sex differences, require changing some notable attributes of the program. Specifically the school would have to treat the genders differently respecting aspects of privacy in the barracks, treatment as “rats,” and physical exertion requirements. Ms. Nigro added Kelly Clarkson, “Stronger (What Doesn’t Kill You).” An earlier series of cases implicated different treatment based on gender in assessing pension benefits or promotion opportunities, such as in the military, to compensate for past adverse treatment of women. Ms. Nigro added the great Dolly Parton, “9 to 5”!
In discussing equal protection more generally, the class comes up against challenges that arise in trying to discern the relationship between intent and effects. Supreme Court Justices sometimes disagree about when, if ever, it is permissible to infer from an adverse consequence, for example, based on race or gender, an illicit intent to bring that consequence about. The sound track now includes, again thanks to Ms. Nigro, the Lauren Hill track “Mr. Intentional.”
Another student made a terrific musical connection based on the class discussion Lawrence v. Texas (2003), in which the Supreme Court overturned Bowers v. Harwick (1986), in the course of striking down a Texas statute that criminalized consensual acts of sodomy between members of the same sex. Many people wrongly assume that such laws are symbolic, but I explained to the class that, historically, such laws have served a gap-filling function similar to statutory rape. The problem with proving rape is the classic he said/she said respecting consent as there are rarely witnesses beyond the alleged perpetrator and vicim. But if the alleged rape victim is below the age of consent, and if the (typically) male participant claims intercourse was consensual, a birth certificate proving the female underage means that the male has confessed to statutory rape. Statutory rape and consensual sodomy laws fall within the rare category of strict liability crimes. Based on this discussion, another student thoughtfully suggested adding the Ashley Tisdale track “He said She said.”
The second half of the course focuses on individual rights. We begin with a discussion of The Slaughterhouse Cases (1872), which was decided only a few years after the Fourteenth Amendment was ratified, and which rejected a challenge based on that amendment against a state conferred slaughterhouse monopoly in New Orleans. In the course of his analysis for the majority, Justice Miller so narrowed the reach of the Fourteenth Amendment Privileges or Immunities Clause as to eviscerate it. I point out to my students that it is as if he had taken White Out to delete it, and then mentioned that White Out was invented by Betty Nesmith Graham, the mother of The Monkeys lead singer, Michael Nesmith, when she worked as secretary. (This tells her remarkable story, including how Ms. Graham's getting fired ultimately made her wealthy). And the playlist now includes The Monkeys hit “I’m a Believer,” and also “Mommy and Daddy.”
In McDonald v. Chicago (2010), the Supreme Court "incorporated," via the Fourteenth Amendment, the individual right to keep and bear arms. This means the Court determined that the Second Amendment right identified in DC v. Heller (2008), also applies to states and municipalities. The McDonald case is interesting for many reasons, one of which involves the absence of a clear statement of the holding expressed in a single opinion. This implicates a doctrine called the narrowest grounds rule. (By coincidence, I have a forthcoming George Washington University Law Review article on the topic, although the details aren't necessary here.) The problem in McDonald arises from Justice Thomas's eagerness, shared by no other Justice, to revisit The Slaughterhouse Cases and its treatment of the Privileges or Immunities Clause. Although Thomas provided a fifth vote for incorporation, he did so based on a rationale no one else shared, and that, in fact, was contrary on the two underlying issues to the other opinion, with four votes, achieving the same judgment. Relying on Fleetwood Mac, I mentioned it is sometimes problematic to “Go Your own Way.”
After the era of economic substantive due process, associated with Lochner v. New York (1905), the Supreme Court began relying upon equal protection to vindicate fundamental rights. This began with Justice Douglas's majority opinion in Skinner v. Oklahoma (1942). It’s an oddly reasoned opinion, and, as I explain to my students, the lesson that Justice Douglas teaches is contrary to one most of us learn early on from our parents. As children we are told two wrongs don’t make a right. But Justice Douglas identifies two independently failing constitutional arguments: (1) no right against forcible sterilization (Skinner does not overturn Buck v. Bell (1927) (permitting forced sterilization)), and (2) no prohibition against distinguishing white collar and non-white collar crimes. Then Douglas manages to turn these two “wrong” arguments into a constitutional right: The state may not condition forced sterilization on a distinction between these categories of crime. Ms. Nigro thoughtfully added the ABBA track, "Money, Money, Money."
Toward the end of the semester, I realized that student demand was greater for what I call open office hours than for my regularly scheduled office hours. And so I offered to change up the format, expanding the open office hour allocation, mentioning Dirty Rotten Soundrels, “Give em what they want.” That’s now on the playlist, as is Spice Girls “Wannabe”!
A final shout out to Ms. Nigro, who offered a couple more additions to the playlist, including this one inspired by thinking about the landmark case, Marbury v. Madison (1803). This case famously formalized judicial review, and it also teaches another important lesson we often learn from our parents: if you have something important to do, do it yourself. (The whole Marbury mess arose from John Marshall's having asked his brother, James, to deliver up a commission, the failure of which gave rise to Marbury's ultimately unsuccessful request for writ of mandamus in the Supreme Court.) Ms. Nigro added The Beatles, Please Mr. Postman.
She also added a wonderful ballad by the late Selena. I often tell my students that an important lawyering skill is knowing when you cannot improve on what someone else, for example a Supreme Court Justice, has said. Although it is generally better to phrase things on your own, sometimes it's better just to quote. Here I cannot improve upon Ms. Nigro's explanation: "Amor Prohibido by Selena for the cases on gay marriage and interracial marriage (e.g. “Qué importa qué dirá, también la sociedad, Aquí solo importa nuestro amor, te quiero, . . . porque somos de distintas sociedades, Amor prohibido nos dice todo el mundo” translated to English, “What does it matter what society will say, here only our love matters, I love you . . . because we are from different societies, Forbidden love tells us the whole world”)."
Returning to Ray Charles and Louis Armstrong, What a wonderful World indeed! For me, this has so much to do with my law students who seem always to find ways to enrich the learning experience, even in the most challenging of times and circumstances, such as a pandemic with instruction for 108 students on Zoom! Thanks again Ms. Nigro, and thanks to all my students both in the Spring 2020 Constitutional Law I and the Fall 2020 Constitutional Law II classes!
I welcome your comments.