The Constitutional Law Greatest Hits Spotify Playlist
Updated: Apr 22, 2020
Max Stearns This is an unusual post. The primary purpose is to convey the link to this wonderful Constitutional Law’s Greatest Hits Spotify Playlist. Almost all of the thirty-five songs are ones I referred to this remarkable past semester in my introductory Constitutional Law I—Structure and Governance course. One of my students, Jennifer Nigro, assembled the songs into the Spotify playlist, including adding a few of her own. She has kindly allowed me to share the playlist on my blog, so please enjoy! I hope you will agree that there is lot (over two hours!) of great music there. The rest of the post is for those who wish to dig in—including, but not limited to, Constitutional Law nerds like me—and to explore how these selections connect with this truly unforgettable semester of teaching. I usually leave dedications to the end, but this post warrants an exception. The eighty-one students I taught this past semester demonstrated tremendous generosity and kindness to me and to each other throughout the semester, but especially as we all transitioned from classroom to remote instruction, and not without several glitches along the way. This post is dedicated to this kind, thoughtful, and talented group of rising lawyers.
The Post: I have always enjoyed connecting the materials I teach in Constitutional Law to music. Over the years, however, I’ve increasingly come to realize that my song references are sometimes dated. This year, I tried something new. Each week after I mentioned songs in class, I followed up with a playlist email, providing YouTube links for each song. I often added information, such as why I chose the song, a back story about the song or artist, or a related link to other works by the same artist. The playlist soon took on a life of its own. I was delighted to learn that Ms. Nigro had started collecting the music into her own Spotify playlist, making it available to her classmates. She did an amazing job, including adding some of her own selections connected to the course’s central themes and, in one instance, reminding me of a reference I had forgotten I made in class.
What follows is organized thematically—with the benefit of hindsight—as compared with how I conveyed this content originally to my students. Some songs connect with specific cases, doctrines, or broader framings, and others connect to events that happened in real time this semester. I’ve never shied away from taking on controversial, including political, topics that connect to what I teach. And this semester was rich in unusual—sometimes strange—experiences. Let’s begin. I almost cancelled the very first, two-hour, class, scheduled for Monday, January 6, 2020. Two or three months later, I certainly would have. I had traveled internationally over December break and returned with an unrelenting cold and cough. Even so, after much consideration, I could not bring myself, for the first time ever, to cancel the very first day of a first-year class. I had no fever, and so I taught. I immediately announced a warning to my students, inspired by Sting, “Don’t Stand So Close to Me.” I had no idea that by the end of the course, this would become an all-too-perfect theme song for the semester and COVID-19, with medical experts and politicians around the world admonishing—sometimes ordering—a proper social distance. When the virus became newsworthy later in the semester, before the pandemic and shelter-in-place orders hit the US, I offered a separate Ode to the Coronavirus, inspired by further medical advice and a line in the tragic song by Weeknd, a talented singer struggling with a cocaine addiction: “I Can’t Feel My Face When I’m With You.” Ms. Nigro added Chumino, “It’s Corona Time,” and so we now have three Odes to COVID-19. A plurality of songs—yes, I do teach Constitutional Law—were motivated by specific Supreme Court opinions, starting with the most famous case of all. Marbury v. Madison is cited as establishing the power of judicial review, meaning the power to strike down statutes that violate the Constitution. Shortly before his one-term Federalist administration ended and Thomas Jefferson’s Republican administration began, President John Adam signed and sealed a commission for a justice of the peace for William Marbury. Adams’s Secretary of State, John Marshall, failed to deliver it. Marshall was busy, overlapping for one month also in his new position of Chief Justice. And in that capacity, he eventually authored the landmark Marbury opinion. Anticipating the great Stevie Wonder, the Federalist Mr. Marbury, conveyed to the new Republican President Thomas Jefferson, “Baby, I’m yours, signed, sealed, [and hoping to be] delivered,” to which Jefferson replied, “no, baby, you’re not.” In Marbury, Marshall reveals three requirements to invoke the Supreme Court’s power to issue a writ of mandamus, which would compel Jefferson’s Secretary of State, James Madison, actually to deliver Marbury’s commission: a right, a remedy, and Supreme Court authority to rely on original jurisdiction to grant the requested writ. A federal statute had granted the Supreme Court original jurisdiction to issue the writ, and yet, Marshall instead determined that the first two requirement were met, but not the third. The great anti-romantic, Meatloaf, famously sang “I want you, I need you, but there ain’t no way I’m ever gonna love you. But don’t be sad cause two out of three ain’t bad.” Perhaps. But, and yes, sadly for William Marbury, two out of three ain’t good enough: judicial review for the Supreme Court, but no commission for him. Just what judicial review means has long been a puzzle. Constitutional Law scholars have struggled for ages, grappling with this most famous sentence from Marbury: “It is emphatically the province and duty of the judicial department to say what the law is.” I offered to my students an account inspired by late, great Whitney Houston, calling “One Moment in Time” our Ode to Judicial Review: Think of each ruling as a snapshot, or photograph, providing an immediate resolution of a specific “case” or “controversy,” and, in doing so, telling us “what the law is.” Then imagine putting all those snapshots together, like in a movie reel, and running it all through a projector. We’ll call the movie “Constitutional Law.” And now, it even has a soundtrack! Some songs relate to broader themes of constitutional history or doctrine. During the New Deal, Justice Owen Roberts single-handedly saved the Supreme Court from President Franklin Delano Roosevelt’s infamous Court-packing plan, an idea curiously revived in Mayor Pete Buttigieg’s presidential campaign. FDR’s version threatened to increase the size of the Supreme Court from nine to fifteen members, with a new appointment for each Justice over the age of seventy unwilling to retire or die. Roberts gutted political support for FDR’s plan by changing positions from having struck down a minimum wage law for women to later overturning that very ruling and sustaining one, signaling a friendlier Supreme Court going forward. No jurist likes being perceived as caving to political pressures. Roberts defended the famous (or infamous depending on one’s view) “switch in time that saved nine,” claiming that whereas in the earlier case, he had been asked to embrace a disingenuous distinction, in the later case, he had been asked to overrule. Following C&C Music Factory, I place this account in the category of “Things that Make you Go Hmmmm.” Even so, there’s no doubt that Roberts was a survivor. FDR ultimately failed to change the size of the Court, but, despite that, he managed a remarkable total of nine Supreme Court appointments during his seemingly endless administration, even filling one seat twice.* Only Justice Roberts survived the entire FDR’s administration. I likened Roberts to Rome’s Claudius or Russia’s Rasputin. Ms. Nigro added this Boney M. “Rasputin” theme song herself. (I too have learned some great new music!)
The Supreme Court won’t hear cases that are presented too early, or too late. For the mootness doctrine, I offered up this favorite by the soulful—and, until the pandemic, still touring!—Boz Scaggs: “Why you just get it through your head. It’s over, it’s over now.” The Supreme Court has battled for decades over a series of voting-related practices, such as packing, stacking and cracking, that comprise partisan gerrymandering. For decades, Justice White, then Justice Kennedy, holding the Court’s center, signaled that although they’ve yet to see one, a successful equal protection challenge to such practices might be just beyond the horizon. Once Kennedy retired, replaced by his former clerk Brett Kavanaugh, the conservatives had the votes they needed. Long chomping at the bits, they finally put an end to it. Partisan gerrymandering notoriously exacerbates partisan polarization. As Meagan Trainor sings, “It’s All About that Bass.” (Okay, not that “bass,” but you, and certainly my law students, get the idea.) Sometimes Constitutional Law plays out like a multi-round chess tournament. A move leading to victory in one round might lead to defeat in another. The Commerce Clause provides a helpful illustration. Chief Justice Rehnquist scored a huge victory in a case striking down the Gun-Free School Zones Act by reviving the long-discarded formalist approach limiting congressional Commerce Clause powers. He pulled this off by relocating a single adjective in the sentence of an earlier landmark case. Modifying a ruling that let Congress regulate activity, whatever its nature, having a substantial economic effect on commerce, Rehnquist instead determined that Congress could regulate economic activity with a substantial effect on commerce. The relocated adjective let a majority strike the school-zone law, and later strike the civil remedies provision in the Violence Against Women Act, deeming the regulated activities in each case non-economic. Justice Stevens eventually out-maneuvered Rehnquist, landing the Chief Justice in dissent. By looking up “economic” in a dictionary, Stevens established that Congress could now regulate production, including banning marijuana growth even for medicinal purposes. This is contrary to the earliest commerce clause formalism, dating to an 1824 John Marshall opinion positing that production is beyond congressional powers to regulate because it is pre-commerce. Chief Justice Rehnquist found himself dissenting based on the literal application of his own test. As the amazing Gloria Estefan sang, "What Goes Around Comes Around.” In another Commerce Clause ruling, Justice Blackmun had overturned a prior decision disallowing an application of the Fair Labor Standards Act to a municipal transit authority under a multi-factor test centering on a concern about intruding upon core state functions. Blackmun posited that the test placed states in a straitjacket by rigidly defining such functions, rather than allowing states and municipalities the freedom of regulatory experimentation. And yet, that very ruling disallowed a municipal transit authority to avoid a uniform federal regulatory imposition. As Alanis Morissette famously sang “Isn’t it Ironic?” And yes, this one actually is ironic. Why? Because contrary to Fleetwood Mac, the Blackmun ruling, even while insisting on state regulatory flexibility, told the transit authority: no, you cannot “Go Your Own Way.” Perhaps the most contentious modern Commerce Clause decision involves the constitutional challenge to the "individual mandate" provision in Obamacare, also known as the Affordable Care Act. In NFIB v. Sebelius, the Supreme Court fractured. Chief Justice Roberts issued a much-criticized, and frankly peculiar, controlling opinion in which he alone struck down the requirement of buying health insurance or paying a tax penalty under the Commerce Clause, yet sustained the individual mandate under the Tax Clause. Supreme Court opinions can sometimes be messy. Here, even though Justice Scalia, joined by three other conservatives, essentially agreed with everything Roberts set out in his Commerce Clause opinion, they declined to join Roberts, apparently unable to get past his Tax Clause defection. And so Scalia wrote separately for both parts of the relevant analysis. The following quoted passage from the Scalia’s opinion is less about the substance than the italicized wording:
"In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power. . . . “We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction . . . . But we have never—never—treated as a tax an exaction . . . .” So here’s the thing. I don’t know whether Antonin Scalia or John Roberts is (or was) the Swiftie, but my theory is that by insistently writing separately, thereby depriving Roberts of a needed majority for the Commerce Clause ruling, despite agreeing with virtually everything in it, Scalia was surely conveying to the Chief, “We are Never Ever Getting Back Together.” There is one part of the Sebelius analysis on which these jilted jurists absolutely agreed with each other, but disagreed with their jurisprudential superhero counterpart, Ruth Bader Ginsburg. We don’t know if the Notorious RBG eats broccoli before her workouts, but we do know that she thinks there’s a critical difference between regulating the purchase of broccoli and regulating the purchase of health insurance.
The doctrinal question goes back to the revival of formalism, except here, instead of focusing on whether an activity is or is not “economic,” the question is whether what is being regulated is or is not activity. For the conservatives, not buying insurance is inactivity; for the liberals, foisting coverage obligations on society at large, by declining to insure, is itself activity. Roberts responded to RBG by calling the Constitution’s framers “practical statesmen,” and not “metaphysical philosophers.” My Ode to the Chief Justice: Michael Franti and Spearhead, singing “I’m not a highly metaphysical man.” I’m fairly sure Franti might have meant philosophical, not metaphysical, but even so, his lyric sounds better, and, to be honest, is more defensible than the Chief Justice's action/inaction distinction. If nothing else, COVID-19 has taught us this. I hope by now we can at least agree that not being insured risks imposing costly coverage obligations on society, and this is true no matter your age or general state of health. One day in class, I distinguished two doctrines that law students—and some lawyers—tend to confuse. The Lochner doctrine, also called “economic substantive due process,” since abandoned, disallowed prospective restrictions on certain forms of contracting, generally related to working conditions. The Contracts Clause, by contrast, disallows retroactive impairments of existing contractual obligations, most notably debtor-relief laws. I apparently went on a bit of a riff, explaining that the Framers of the Constitution were deeply concerned about such laws because, well, most were creditors, although in later years, some from this period didn’t do so well financially and might have benefitted by debtor relief. I went on to say that, back then, in “The Room Where it Happened,” this remained their concern. I had honestly forgotten about this, but Ms. Nigro, a wonderful reporter, did not. She included, and credited, Lin Manuel Miranda, for the inspired reference!
“The Twilight Zone” theme relates to the famous Steel Seizure Case, and specifically a part of Justice Jackson’s inspiring opinion in which he divides up presidential authority based on whether Congress grants or denies the executive power, or, in what he terms constitutional twilight, Congress remains silent. Another Separation of Powers case challenged the Gramm-Rudman-Hollings Act, which sought to eventually balance the federal budget. Justice Stevens criticized the majority analysis, which resulted in striking down a key part of the statute after declaring that the Comptroller General, who would enforce it, improperly exercises executive functions, given congressional power to terminate his office. Stevens viewed such functions among the branches as fluid, and he deemed the Comptroller General’s functions chameleon like. And so, inspired by Justice Stevens: Culture Club, “Karma Chameleon.” Not all of the music was about Constitutional Law proper. I've never shied away from talking about high profile, even political, events if they have a meaningful connection to what I teach. Following Super Tuesday, which produced decisive Joe Biden victories, I offered some dedications: For Bernie Sanders, The Beatles, “Revolution.” For Mike Bloomberg, The Beatles, “Can’t Buy Me Love.” Around the same time, President Trump had asked a room full of pharmaceutical executives about the likely efficacy of using the flu vaccine to combat COVID-19. For no particular reason, I also offered up this Beatles favorite: “The Fool on the Hill.” After the Superbowl, I pointed out that Jennifer Lopez had stunningly illustrated that Puerto Ricans, following the amazing Bruce Springsteen, were “Born in the USA,” and, of course, I offered up my own J.Lo and Shakira favorites! I led one class observing that it was the 60th anniversary of the tragic plane crash that motivated Don McLean’s epic masterpiece, “American Pie.” I later emailed to my class the most famous hits of those who tragically left us far too early “the day the music died”: Buddie Holly and the Crickets, Ritchie Valens, and the Big Bopper. When my class adjourned for spring break, we didn’t know if we would be meeting again in person or in virtual space. I left the class with this hopeful Beatles theme: “Come Together.” That proved premature. Since then pretty much everything has changed, even including our law school grading protocols. So too did my student-call protocols. I’m old school, and I generally teach socratically. But I also sought to reduce unnecessary stress, and so I sought out volunteers. Borrowing again from Taylor Swift, I told the class I had a “Blank Space,” and was happy to write in their names. Just a few songs remain. In some instances, I just wanted to give my students a chance to dig deeper into tracks by artists they might not know and who are worth knowing. From Meatloaf, the epic, “Paradise by the Dashboard Lights.” From Don McLean, “Vincent,” in my opinion one of the most beautiful songs ever written. From Stevie Wonder, “You are the Sunshine of My Life.” Finally, one day fairly recently, I stumbled across this video of an utterly remarkable a six-year old girl, named Miumiu, from Nanjing China, playing this version of “Fly Me to the Moon,” singing perfectly while playing her guitar. I was blown away. So I sent the link to the class. Ms. Nigro included the also impressive original track by the late, great Frank Sinatra on her own. Had I thought about it, I might also have drawn just one more special connection for my students. After all, my final lecture, also posted on this blog, is titled titled “Reflections for 1Ls on 'The Crown,' Prince Phillip, and the Moon Landing.” Sometimes things just “Come Together.” Thanks to all of you who read through this. And most of all, thanks to a wonderful group of students who made this semester truly special despite the challenges. I hope you might think of this post as my gift to your class. I welcome your comments.
*[Special thanks to Richard Boldt for pointing out a now-corrected error in the original post. FDR made two appointments in Seat 3 on the Supreme Court, James F. Byrnes, then Wiley Blount Rutledge.]