Balkinization: The Constitution: An Interview with Mike Paulsen and Luke Paulsen-- Part One

The Constitution: An Interview with Mike Paulsen and Luke Paulsen-- Part One

I recently spoke with the father and son team of Mike Paulsen and Luke Paulsen about their new book, The Constitution: An Introduction (Basic Books, 2015). This is part one of a two-part interview. Part two will appear tomorrow

JB: Why did you write this book? What is the audience you are hoping to reach? How would you say this book differs from the dozens of books published every year on the Constitution and the Supreme Court?

Mike Paulsen: Thanks for "interviewing" us, Jack! We're grateful for the chance to connect with Balkinization's readers and bloggers. Thanks for your generous hospitality.

The story of how the book came to be is fairly straightforward. I had given a lecture at an institute at Princeton way back in the winter of 2006 -- on Lincoln, Presidential Power, and the Emancipation Proclamation (topics eventually addressed in this book!). Following the lecture, at the usual academic dinner, the college profs and law profs began arguing about just how and when their students got such messed up notions about the U.S. Constitution. The law profs blamed the colleges; the college profs blamed the high schools; everybody blamed the shallow media and textbook treatments generally.

I ventured that "somebody" really ought to write a book trying to set forth the essentials of the Constitution -- origins, meaning, history, interpretive disputes -- in a straightforward, smart, concise, and reader-friendly way that would correct many myths and half-truths. The idea would be to reach general readers -- students, non-lawyer citizens, journalists,real people -- with (hopefully) sound factual information and reasonable analysis, teeing up all the major historical and modern debates in an intelligent way. Such a book could not be superficial and sloppy -- it would have to be "smart enough" for academics, even if not aimed merely at academics. But it had to be accessible and readable, too. And it would also have to be fair and not a screaming ideological screed.

Of course, my dinner companions challenged me to write it. I took the idea home to Luke, my then-thirteen-year-old son, who liked the idea. He'd just finished eighth grade Government, and we'd occasionally laugh together at the textbooks that said things like "The Supreme Court invented the idea of 'judicial review' in Marbury v. Madison, which held that the Supreme Court is the supreme interpreter of everything in the Constitution and can determine what it means and change it over time." (The hazards of being a law professors' son, I suppose. I'd like to think that our discussions were part of his early education, and not a bizarre form of child abuse!)

Luke and I decided to take up the idea as a summer vacation project. We underestimated how long it would take -- by a factor of about eight years! -- but we wrote it almost exclusively during summer breaks, a large part of it at our island cabin in extreme northern Minnesota. Originally, the book might have been aimed at younger students -- high-school age or so -- but our ambitions and the book's sophistication grew over the years. (Luke went from being a high school freshman to a Princeton Phi Beta Kappa computer scientist, and now a software engineer in Silicon Valley. His legal acumen grew tremendously over this time. He may be one of the most sophisticated lay constitutional interpreters never to have been corrupted by a law school education!)

Now, we'd like to think that the book is the (!?) definitive, concise, modern introduction to the Constitution. It comes in at just over 300 pages, and treats the Constitution in all major respects: its origins at the Constitutional Convention; its structure, design, and broad themes; the meaning of its core provisions assigning powers and protecting specific rights; its awful accommodation of slavery; and then -- fully the second half of the book -- its history of interpretation over 225 years' time.

We were surprised to find that there is, really, no other book exactly like this. On the one hand, there are massive, dense, sophisticated scholarly tomes and treatises. But those are too daunting for many. (I still think that the best book, other than The Federalist, on the Constitution is my old friend -- and former law school roommate -- Akhil Amar's America's Constitution: A Biography. It's just double or more the length, and doesn't cover the history of the Constitution's interpretation. By the way, thanks to Akhil, and to so many others, who read the book in draft and provided insightful, critical comments.)

There are also many excellent books that focus just on specific constitutional issues, or on debates over constitutional interpretive methodology, or that are histories of the Supreme Court and its decisions specifically. Some of these are a little too "academic" for most readers; others are terrific but of limited scope.

Then, on the other side of the ledger, there are the somewhat embarrassing, quick-and-dirty "citizens' guides" that aren't really of much use -- and often perpetuate the shallow treatment and mythology of the popular press and of school textbooks. Finally, there are the ideological tirades that don't even try to be fair to opposing viewpoints: preachings to different choirs, right and left.

We've aimed right down the middle. 300 pages is better than 600 (in many respects). And it's better than 100, too. Comprehensive, concise, and readable is our goal. And while the book takes positions on important constitutional questions, we try to lay them out fairly and note where we depart from the standard modern consensus.

We also sought, throughout, to make the narrative lively and energetic. That pretty much came naturally, but we had to bear in mind the needs of a (hoped-for) broad readership. For you, Jack, and others well versed in constitutional law, these things are just intrinsically interesting. But -- inexplicable as it might sound to you, me, Luke, and many if not most of your readers! -- one first-blush reaction I've had from non-lawyer, non-history, non-government, non-political types is "Wow, a book on the Constitution. Three hundred pages? How do you keep it interesting? Is there really that much interesting to say?" One of the attractive features of the book, we hope -- making it more interesting to lay readers and probably to seasoned constitutional veterans as well -- is that we try to tell a story about the Constitution and to intersperse that narrative with the specific stories of many interesting constitutional characters, from Hamilton and Madison to Roger Taney to John Calhoun to Frederick Douglass to Dred Scott to Lincoln to Myra Bradwell to Eugene Debs (what a character!) to FDR to Robert Jackson to the Hirabayashi, Korematsu, and Endo, to Norma McCorvey to Thurgood Marshall . . .

So, that's a very long way of saying that we're hoping that the "audience" is, well, everyone. Legal scholars will, I hope, find much to engage their interest (and occasionally provoke discussion and debate). Scholars, activists, and engaged citizens -- readers of Balkinization, both on the right and the left -- will, we think, find much value in it. And lay readers, interested in history, politics, and government, who are looking for the "one book" that they really ought to read on the Constitution -- as a point of entry to this intriguing topic -- should start here, we think! (But not end here, of course.)

JB: Luke, you began writing this book as a teenager. What was it like working on it with your father over many years? How has it shaped how you think about the Constitution today?

Luke Paulsen: Writing the book was a tremendous learning experience, one of the most important I've ever had. Certainly it's shaped my understanding of the Constitution, but it wasn't just the Constitution that I was learning about. For one thing, I got a much better knowledge of U.S. history-- maybe with a little more emphasis than usual on the founding and Civil War eras, but only because those really were crucial turning points for the nation in general. Going through the most important moments in constitutional interpretation would actually be a great way to do a survey of U.S. history. And I don't think that's a coincidence, either. One way the book has shaped how I think about the Constitution is by showing me how it really does matter. The structure of the Constitution, the powers and protections that it enacts, and its interpretations have been enormously influential in American history. Before writing the book, that was something I didn't fully appreciate, even though I was already plenty interested in the Constitution. It was easy for me to take the Constitution's importance and value for granted, but the book project certainly corrected that.

Working on the project with my dad was the other thing that made it such a great learning experience. It goes without saying that I couldn't have done anything like this on my own, and I would have learned a ton just from reading my dad's writing. Getting to engage in that process for myself-- editing, doing research, and contributing material of my own-- was even better. The vast majority of the original content was my dad's, but I went over it thoroughly for the editing and revised it with him. That gave me a much better understanding of the ideas we were trying to convey, and at the same time it was great training for how to actually convey them. By the end, we couldn't point to any piece of writing and say that it was mine or his. It was a truly collaborative process, and through it I grew into a full understanding and co-ownership of what we'd written-- making the text my own as well as my dad's.

JB: Mike, what did you learn about the Constitution--and about yourself--from working on this book with your son?

Mike Paulsen: I already had a pretty good background in the Constitution and constitutional law, of course (notwithstanding having gone to Yale Law School!). I've taught Con Law a number of times, written a bunch in academic journals and websites, litigated constitutional issues, written a good number of amicus briefs, and am co-author (with Steve Calabresi, Michael McConnell, and Sam Bray) of a Con Law casebook. Still, there were holes and gaps in my knowledge of constitutional history -- the period post-Reconstruction to New Deal was a neglected historical "blind spot" in my knowledge bank, which it was challenging and rewarding to fill. (Chapter Eight, provocatively entitled "Betrayal," now covers that period and is, I think, ironically, one of the best chapters in the book.)

I learned a lot about writing, though. This was a challenge. In law review articles, I could be as "clever" and as jargonistic as I felt. Writing for general readers was a little different idiom. Luke proved spectacularly helpful in this regard. If I started digressing into too-deep details or, a far greater sin, started in engaging in wordy professor-itis, he reined me in quickly. The result, I think, is quite successful. I honestly think that this is "my" best writing, of all the constitutional law scholarship I've done. But I use "my" advisedly, because this was very much our writing.

And that goes to the father-son part of your question, Jack: When we started, Luke was clearly the junior partner. By the time we finished, we'd re-written each other's writing so many times that it's hard to tell who wrote what, originally. More than that, it has been a tremendous pleasure -- one of the great, slow-motion thrills of my life -- to work together with Luke on this, and to see his sophistication and maturity develop. At some point along the way, Luke became my intellectual peer. He's the smartest, best young writer and editor I know -- and we're inside each other's heads completely. So much so, that we have bizarre inside jokes, and things that only he and I "get" about each other. We share some law-and-history-nerd moments together. (I remember one Skype call, late in the editing process, when he was a Princeton senior, in which we were trying to rewrite a single sentence concerning Stephen Douglas's electoral vote tally in New Jersey in 1860 -- to make it both concise and accurate. We laughed at what fun we were having together!)

Seeing my son grow up, through the odd lens of a joint book project, has been remarkable. And he understands his dad a little bit better, too.

JB: The book has an interesting structure. The first part takes the reader through the text and structure of the Constitution. The second part starts over and talks about the history of interpretations of the Constitution, by politicians and by the Supreme Court. How did you decide on this strategy, and what was your goal in proceeding this way?

Mike Paulsen: I sketched the original outline of the book on two pages of yellow legal paper, in the Philadelphia airport, while waiting for delayed flight home the day after my talk at Princeton. (We still have those two pages, yellowed through time as well now, and heavily annotated and crumpled.) It's hard to reconstruct my original thinking, but I believe my thought process was: "Well, if you were trying to distill everything about the Constitution into one short book, what would you want to cover?" I then quickly wrote a nice, even-numbered ten-point list (which, with some revisions, became our chapter titles):

1. Upheaval (on the creation of the Constitution)

2. Superstructure (structural characteristics like federalism, separation, written constitutionalism)

3. Powers (sketching out Article I, Article II, and Article III grants of power to Congress, President, and the Judiciary)

4. Slavery (a topic that cannot be ignored in the Constitution's original design)

5. Freedoms (about the quick addition of the Bill of Rights).

Then I sketched a "Part II" dealing with the history of the Constitution's interpretation. It really didn't so much "start over" as continue the story. The first five chapters basically cover 1776-1791 (though the discussion of "Powers" and "Freedoms" unavoidably points ahead to controversies concerning the meaning of these core provisions). The last five chapters then cover a series of broad historical epochs, picking up in 1791 -- right about where chapter five leaves off.

6. Infancy (defining controversies in the Constitution's early years -- from 1790 to 1860 and the eve of the Civil War)

7. Crisis (concerning Lincoln, slavery, secession, the Civil War, Reconstruction -- one of my favorite chapters and areas of interest)

8. Betrayal (the Supreme Court seemed to do a lot of wrong things from 1876-1936)

9. Restoration (1936-1960 included some magnificent reversals of the errors of the past)

10. Controversy (1960 to today: a long chapter tackling as many of the issues of the past 55 years as we can squeeze in).

We introduce the post Bill of Rights amendments to the Constitution as they arise in the course of this historical narrative of "Living the Constitution" in the second half of the book.

The goal all along was to be suitably comprehensive, and to cover not just the "original" Constitution -- and its original meaning -- but what has been done with it (or some would say "done to it") over the course of time. Part I is entitled "The Written Constitution." Part II is entitled "Living the Constitution." We think that a comprehensive introductory book needs to take on both broad themes.

Luke Paulsen: The book's structure is one of my favorite things about it. It's tricky to figure out how to organize an introduction to the Constitution. By introducing the Constitution as written and then covering its history, we were able to give a complete and well-rounded picture of the subject without having to condense, flatten, or simplify. It occasionally meant repeating ourselves somewhat-- for example, we ended up with in-depth discussions about the First Amendment in chapters 5, 9, and 10-- but in exchange we were able to give a three-dimensional picture of the Constitution's role and interpretation through history. It also let us give a full, coherent account of the design and purpose of the Constitution as a whole, which would have been difficult if we'd gone provision by provision.

I'd also say there's a tiny hint of what you might call originalism in our choice of structure. That wasn't so much a conscious decision as a product of the way we thought about the ideas and issues involved. The fact that we first present the Constitution as adopted, and then show how it's been applied in the context of subsequent history, makes it harder to conflate the two. Which is not necessarily to favor one half of the story over the other-- the original Constitution had its high and low points, and so has historical practice under it, and we're very forthright about all of that in our discussion. But as a matter of interpretation, the written Constitution stands plenty well on its own, especially when you add in the historical context of its adoption, and we've found plenty of interesting things to say about that part before we even get to its fascinating and complicated history.

Incidentally, our working subtitle for the book was "An Introduction and Brief History", which captures the two-part structure well-- even though the whole thing really is an introduction.

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Part two of the interview will appear tomorrow.

Posted 9:00 AM by JB [link]