How Many Constitutional Amendments Are There?

The short answer: the number of times the Supreme Court has ruled on a constitutional question. Every time the Supreme Court grants certiorari, allows a case to move ‘upwards’ from state and Federal courts to its chambers, and then proceeds to rule–keeping in mind the supposedly relevant precedents, and on the basis of a coherent theory of the interpretation of legal texts–it offers us an amended constitution. Every act of interpretation–sometimes plain literalist, sometimes originalist, sometimes purposive–adds meaning and texture to the text of the articles of the Constitution. Thus the content of the Fourth Amendment is not to be found in the Constitution; it is to be found in the cumulative history of all Supreme Court rulings on cases that have rested on contested interpretations of the Amendment. What does ‘unreasonable’ mean? What does ‘search’ mean? What does ‘seizure’ mean? What does ‘persons’ mean? What does ‘effects’ mean? What does ‘probable cause’ mean? To decipher this meaning, scattered over thousands and thousands of pages of Supreme Court rulings is an almost insuperable and intractable task; it is much easier, therefore, to fall back on the simplest formulation of all: ‘The Fourth Amendment says that…’. But the filling out of that particular that-clause will call for the expenditure of considerable ink, and in the end, it will appear that the protections of the Fourth Amendment are considerably more ambiguous–in several dimensions–than previously imagined, by both its detractors and proponents alike.

These considerations show that talk of ‘constitutional protections’ must always proceed hand in hand with talk of constitutional interpretation, with the history of actual supreme court rulings on the constitutional question under discussion. Such inclusion is especially necessary when giving someone legal advice; as Justice Holmes sagely pointed out many years ago, the law is what the judges say it is: “The prophecies of what the courts will do in fact, and nothing more pretentious.”

Our nation is entering a period of great legal uncertainty; there is much talk of taking cover under constitutional protections, of seeking refuge from an authoritarian government under the covering canopy of the Bill of Rights. But the text of the Bill of Rights is not sufficient to provide such protection; the Supreme Court rulings on Bill of Rights cases are far more germane. To look only to the Constitution is dangerously complacent; talk of legal rights without actual legal protections is hollow.

Many a patriot is disappointed and disillusioned to find out that in point of fact the Fourth Amendment is almost hollow in content; its protections systematically eviscerated over the years by repeated weakenings through selective, ideological, and politically motivated interpretation. Mass surveillance; warrantless searches; stop and frisk; the list goes on. Where is the Fourth Amendment?, the patriot asks. The answer is: not in a small booklet, but in that section of the law school’s library that deals with constitutional law.

Constitutional conventions, two-thirds majorities, ratifications by state legislatures–such is the machinery of the constitutional amendment by legislative fiat. Such convolutions are kludgy compared to the awesomely efficient method of Supreme Court rulings; there, in the foundry of the Supreme Court’s chambers, new meanings are forged every year, every Supreme Court season.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.

A Bad Teaching Day

Yesterday, I had a bad teaching day.

First, I was scattered and disorganized in my Twentieth Century Philosophy class; I repeated a great deal of material we had already covered; I offered only superficial explanations of some important portions of the assigned reading; I did not answer questions from students satisfactorily. (It was pretty clear to me by the end of the class that I did not know how to explain Wittgenstein’s argument against private languages to a novice.)

Then, fifteen minutes later, I walked into my Philosophical Issues in Literature class-where we were scheduled to discuss Jose Saramago‘s Blindness–and floundered again. (Though not as badly.) Here, I largely failed to satisfy myself that I had covered all the bases I wanted to. For instance, I was unable bring the class discussion around to a consideration of Saramago’s satirical tone, his view of humanity, the novel’s take on technology and the reaction of the state to sudden catastrophe–all important in studying Blindness. Instead, the discussion ran in several different directions and I felt entirely unsure that I had done a good job in keeping it coherent.

Later, after a break of a couple of hours, I traveled to Manhattan to teach my graduate Nature of Law seminar. Now, I struggled because of faulty syllabus design. My fifth and sixth weeks of the class were ostensibly to be devoted to studying legal realism. For the first of these two weeks, I assigned three essays by Justice Oliver Wendell Holmes; for the second, a selection of articles from an edited anthology. There were two problems with this choice. First, the readings were disproportionately assigned to the two weeks–the first required the students to read a mere forty-five pages, the second, approximately two hundred and twenty. Second, and more seriously, some of the readings for the second week should really have been assigned as companions to the Holmes essays. This poor design almost immediately manifested itself in the class discussion.

It was quite difficult to discuss Holmes essays without the surrounding context–historical and legal–that the additional readings would have provided. As a result, my students and I found ourselves either listening to me lecturing about that missing component, or returning, again and again, to discuss threadbare, the same central theses of Holmes that had begun the class session. (Indeed, I found myself repeating some points ad nauseam.) As the class wore on, I could not fail to notice that my students were losing interest; perhaps the assigned readings hadn’t been substantive or provocative enough. Perhaps.

That expression, of students fading out, is a killer. I almost ended the class early–one normally scheduled to run for two hours–but not wanting to admit surrender, hung on for dear life. With ten minutes to go, my students were packing up. I desperately sought to show them the reading at hand had more depth in it, looking for a money quote that would illustrate, brilliantly, a point I had just been trying to make. I didn’t find the one I was looking for, and had to settle for a lame substitute.

Which is how the class ended, lamely.

Hours later, after I had reached home, had dinner, and begun to settle down for the night I was still fuming. This morning, it continued. And here I am, writing a blog post about the whole day.

Teaching can be a wonderfully invigorating experience; it can also be painfully demoralizing.

Geertz on Comparative Anthropology and the Law-Fact Distinction

(Continuing my series of notes on Clifford Geertz’s Local Knowledge: Further Essays in Interpretive Anthropology, Basic Books, New York, 1983; earlier notes appear here and here.)

Geertz’s Local Knowledge: Fact and Law in Comparative Perspective (first presented as the Storrs Lectures for 1981 at Yale Law School; an online version is available) should be essential reading for philosophers of law. In it, Geertz explores the relationship between law and anthropology by way of examining how comparative anthropology–especially that concerned with legal systems in different cultures–provides us a means of examining how our legal categories and assumptions could be reconfigured. To confront a legal mind from another culture is to not only examine a new legal sensibility but to have ours made more aware of its particular qualities: how has it sliced up the world and established its categories, how has it come to this particular ontology? There is a whiff of relativism and incommensurability in the air but,

[I]t is one that neither argues for nihilism, eclecticism, and anything goes, nor that contents itself with pointing out yet once again that across the Pyrenees truth is upside down. It is, rather, one that welds the processes of self-knowledge, self-perception, self-understanding to those of other-knowledge, other-perception, other-understanding; that identifies, or very nearly, sorting out who we are and sorting out whom we are among. And as such, it can help both to free us from misleading representations of our own way of rendering matters judiciable (the radical dissociation of fact and law, for example) and to force into our reluctant consciousness disaccordant views of how this is to be done (those of the Balinese, for example) which, if no less dogmatical than ours, are no less logical either.

Geertz holds out this possibility of transformation because of the view of law that he holds, one which assimilates it to:

[N]ot… to a sort of social mechanics, a physics of judgment, but to a sort of cultural hermeneutics, a semantics of action. What Frank O’Hara said of poetry, that it makes life’s nebulous events tangible and restores their detail, may be true as well, and no less variously accomplished, of law.

Such an understanding of law has immense potential to inform philosophical debates on the nature of law, on whether natural law, positivist, legal realist or critical legal theories best describe it. Central to Geertz’s intervention in this debate–via his empirical attention to the three alternative systems that he considers–is his critique of the fact-law distinction:

The rendering of fact so that lawyers can plead it, judges can hear it, and juries can settle it is just that, a rendering: as any other trade, science, cult, or art, law, which is a bit of all of these, propounds the world in which its descriptions make sense. I will come back to the paradoxes this way of putting things seems to generate; the point here is that the “law” side of things is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real. At base, it is not what happened, but what happens, that law sees; and if law differs, from this place to that, this time to that, this people to that, what it sees does as well…..

If one looks at law this way, as a view of the way things are, like, say, science or religion or ideology or art–together, in this case, with a set of practical attitudes toward the management of controversy such a view seems to entail to those wedded to it–then the whole fact/law problem appears in an altered light. The dialectic that seemed to be between brute fact and considered judgment, between what is so and what is right, turns out to be between…a language, however vague and unintegral, of general coherence and one, however opportunistic and unmethodical, of specific consequence.

Geertz’s essay makes for essential reading, not just because it abounds in marvelous insights like these, but because of the richly informed comparative study it provides of what Geertz terms the ‘Islamic, Indic, and Malaysian” legal systems. It should be read by anyone interested in the conceptual foundations of the law.

Breaking News: The US Supreme Court is a Political Institution

Yesterday in Florence vs. Board of Freeholders, the US Supreme Court ruled that if you are arrested–for any reason whatsoever–the law-enforcement officials in charge of you can strip-search you. Over at ScotusBlog, Lyle Denniston sums it up a little better:

Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures.  The prisoner, however, may be told to manipulate some part of the body….The Court explicitly refused to limit the authority to use strip searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.

Justice Oliver Wendell Holmes once said the law was best defined as a prediction of what judges or courts would do. In that sense, this Supreme Court offers stable law: take any case, imagine what a  run-of-the-mill-conservative would suggest as a ruling and write down ‘4’ next to it; do the same for a run-of-the-mill-liberal. Then, for the deciding ninth vote–Justice Kennedy’s–you could toss a coin or roll a dice or inspect tea leaves.

This confidence in predicting ‘conservative’ and ‘liberal’ votes stems, of course, from voting patterns but also from the transparent displays of ideological commitments by Supreme Court Judges in their spoken pronouncements and their writings. For instance, in Florence vs. Board of Freeholders, the Supreme Court’s majority ruled that in this domain, it had to defer to jail and prison managers, that it possessed no relevant expertise that could be brought to bear on their activities. This is a striking admission of limitations, one that we can be sure will not be expressed any time in the future when a conservative outcome is required.

I could carry on like this, picking apart each point of the majority ruling, but it would be a far better use of my time to simply note what many have done since Bush v. Gore: the US Supreme Court is just another political institution (This politicization of the institution does not back only to 2000, of course. It is just that in Bush v. Gore, the court’s politicization was made overt in, I think, a previously unprecedented manner.) The US Supreme Court  has an ideology; it has political preferences; it most assuredly has dogs in the fight, and it will back them by any means necessary; it has political rhetoric at its disposal, and when it wants an otherwise weak or untenable legal argument to carry weight it will back it up with just that rhetoric.

In this situation, there is something quite touching about the gallons of ink spilled, by our nation’s legal class, on intricate legal analysis of fact patterns and the like, in an effort to predict and analyze Supreme Court judgments.  One might think that legal analysis never offered any cause for hilarity; but in matters like these, it most assuredly does. And this is not restricted to those that analyze Supreme Court rulings but even those who write them: the painful, intricate, attempts to cover up straightforward political preferences with long-winded, superficially sophisticated legal arguments can only be chuckle-inducing. Better, I think, to be honest, and simply use my method of prediction above. It is concise; it is honest; it gets you the same predictions as a fancy Harvard or Yale lawyer might.

Who would have thought it: law can be politics by other means.