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

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

This is part two of my interview with Mike Paulsen and Luke Paulsen about their new book, The Constitution: An Introduction (Basic Books, 2015). Part one of the interview appears here.

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JB: Any book on the Constitution will be controversial to somebody. Mike, you are generally a proponent of strong presidential power, and you are also one of the most prominent critics of Roe v. Wade in the American legal academy. In the final chapter of the book, which discusses the modern period, it's almost impossible to avoid saying something that someone will disagree with. Nevertheless, I notice that you try very hard to be even-handed, although it's pretty clear to the reader what you think. What was your basic philosophy in dealing with modern controversies about the Constitution? What were some of the choices that you made in deciding how to present material about which you had strong opinions?

Mike Paulsen: The last chapter was truly the hardest to write! The basic decision we made was to embrace the theme for this chapter that the modern era is one of renewed "Controversy" over the meaning and application of the Constitution, and to be both up-front about our views and try doubly hard to fair to opposing views. I'm personally gratified, Jack, that you can see the effort to be even-handed. And we think part of the effort at "fairness" also lies in not trying to disguise our views when we have them. We wrestled hard with how to write about Roe v. Wade. Yes, Jack, as you know we first became better acquainted when you invited me to Yale to be one of the opposing viewpoints for your book "What Roe v. Wade Should Have Said" -- and I stunned the audience with a (seemingly unfamiliar!) views that Roe was the most clearly wrong decision, and the greatest atrocity, to that point in the Court's history.

In the book, we set forth the arguments on each side -- more dispassionately -- and what our evaluation is of each one. We make clear where we stand. But mostly, we try to highlight the problems with Roe by situating it within the broader historical context of other situations in which the Court has strayed rather far from the constitutional text in the name of effectuating what was believed (at the time) to be good-and-true-and-desirable social policy -- Dred Scott, Plessy, Buck v. Bell and others. Even for those who favor the result in Roe as a policy matter, this is a challenging interpretive problem: Is it legitimate for courts to stray from the constitutional text, or not? If so, what constrains them? What keeps courts, unleashed from the text, from advancing what folks might think terrible social policy? Is there not a case for leaving social policy to the democratic process and the choices it produces? All of these debates are familiar to readers of Balkinization (and to many in society generally). In the book, we try to frame the debate fairly, give a sense of the stakes, say where we stand and why, point out analytic problems and weaknesses with judicial decisions, and then leave it to the readers' judgments.

There are any number of modern-day issues of this sort. We didn't want to treat them in an over-delicate manner, as if afraid to engage. (Down that road lies the Great Error of school textbook editors, who massage controversy into mush -- and inaccuracy.) Instead, we tried to treat them in an engaging manner -- one that invites ongoing discussion, rather than screaming insistence on a particular view.

Ironically, our strongest, most strident criticisms, come in the context of disputes and decisions of bygone eras. We are pretty unreservedly critical of the framers of the Constitution for their accommodation -- bordering on embrace, support, and encouragement -- of the atrocity of slavery. We engage in harsh denunciation of Dred Scott. And our bitterest critique seems to come, as noted before, in Chapter Eight, where pretty much every major decision of the Court -- Bradwell, The Civil Rights Cases, Plessy, Giles, Berea College, Buck v. Bell, Lochner, The Insular Cases, Schenck, Debs, you name it -- seemed to amount to a "Betrayal" of the great advances in the constitutional text made in the wake of the Civil War.

Balkinization readers tend to lean left. Other bloggers and reviewers on the right have found -- and will find -- things they disagree with, too. Already, some of my more right-leaning friends have taken mild issue with our seeming embrace of a broad, "Hamiltonian" view of the scope of Congress's enumerated powers -- including defense of the Court's conclusions in the New Deal-era commerce clause cases, and even NFIB v. Sebelius.

So, you're right: To engage the Constitution, and the decisions of the Supreme Court, in a nothing-up-our-sleeves fashion, is to say things that someone will disagree with. We're pretty open about acknowledging that there will be room for disagreement with some (or a lot) of what we say. (That is, in part, why we style the book as "An Introduction" -- it is not the only possible way of teeing up these questions -- and also "An Introduction" -- this is hardly the last word on the Constitution!) We have no doubt that some of what we say will be controversial to some folks; different folks will find different things with which to disagree.

Luke Paulsen: In editing Chapter 10, I found that it was extremely easy to distinguish two kinds of passages: those that might be taken as reflecting a political viewpoint, and those that took and defended specific legal positions on the basis of clear, consistent reasoning. And I'd like to think that we were able to sift out most if not all of the passages of the first kind. In the discussion of Roe v. Wade especially, we were careful to present the legal arguments faithfully and evenhandedly-- and, separately, to discuss the real-life import of the decision. (In Chapters 6 and 7 we gave a similar treatment to Dred Scott v. Sandford, which is easily Roe's equal in its influence and practical consequences.) We also made sure, in passages that might attract disagreement, to present where our conclusions were our own-- not those of other scholars, and not necessarily those of the reader. What we want readers to take away from our discussions is the process of thinking and talking about the Constitution, more than any specific legal result.

JB: A book with two authors means that there are two minds at work. What were some of the topics you didn't agree on, and how did you handle those disagreements in the book?

Luke Paulsen: We actually had very few major disagreements, and all of them were about the style and presentation of the material, not the substance. I guess that isn't surprising, since I learned most of what I know about the Constitution from my father. A lot of the time I played the role of the editor, trying to rein in the professor-isms, technical jargon, digressions, and terrible jokes that found their way into my dad's first drafts. When he came up with a punchy way of saying something that didn't read well to me, we'd often go back and forth for a while trying to find a solution that both of us liked.

I was also the one advocating for more moderate (or at least less overt) political statements in a few cases once we got to Chapter 10. That's not necessarily because our political views are very different-- I just tend to be a little more sensitive about these things, and as the less experienced Constitution scholar I was doing my best to represent the feelings of the average reader.

My dad, on the other hand, was the one who always insisted on exciting, memorable writing and precise, correct scholarship. When we went over the material that I wrote or rewrote, he often pushed me to rewrite parts that I felt were "good enough". That was crucial to my improving as a writer-- it wasn't enough for me to just write something that was clear, concise, and informative. It had to pull people in and make them want to read it.

Oddly enough, our biggest disagreements happened once we had a real editor. In the end this book was the work of more than two minds-- Alex Littlefield and the rest of the folks at Basic Books did a ton to get us from manuscript to publication, including several rounds of editing. But when the comments came back, we often split on our reactions to them. I tended to be a lot more deferential about accepting proposed changes, while my dad was more insistent on keeping what we had written.

When it was just the two of us working together, disagreements weren't so much of a problem. We could often find a different way to say something, and if one of us felt strongly about a passage the other would back off. But when we were working remotely from a third person's changes, there was more pressure on us to have a binary "yes" or "no"-- especially as we got close to publication-- and figuring out disagreements got more challenging. Even so, we never even came close to a point where one of us would have had to overrule the other, and we were really happy with how the final text turned out.

JB: A big theme of the second half of the book is the distinction between judicial review, which you support, and judicial supremacy, which you do not. You also emphasize the role of non-judicial actors in interpreting the Constitution. In an introductory book on the Constitution, why do you think this is important?

Mike Paulsen: One of the great modern myths about the Constitution is that it is the exclusive province of the judiciary in general, and of the Supreme Court in particular. The Constitution does not say that, of course. There is no "supreme interpreter" clause in the Constitution. What there is in the Constitution is a deliberate separation and division of powers, with each branch of government bound by oath to support with integrity "this Constitution" and no branch designated as the sole interpreter of that Constitution. The "judicial Power" is a power to decide cases, not a supreme power over the other branches in all matters of constitutional interpretation. The "executive Power" is a power to execute the laws -- including the Constitution as supreme law of the land -- and the President swears a specially constitutionally prescribed oath to preserve, protect, and defend the Constitution. Logically, he has as much of a right to independent constitutional interpretation as do the Courts. Congress, too, in the course of the exercise of all its constitutional powers, necessarily engages -- overtly or not -- in constitutional interpretation. Each branch, then, rightfully possesses the power of constitutional interpretation, each within the province of its other granted constitutional powers. This understanding has considerable historical support. Madison argued that none of the branches was supreme over the others -- none possessed a superior right to define the boundaries between their respective powers. Hamilton openly defended checks on the courts, including the prospect of presidential non-enforcement of judicial decisions and congressional impeachment of judges who usurped the legislature's powers. And Marbury v. Madison never asserted judicial supremacy -- merely coordinate interpretive competence and authority on the part of courts; that is, the judiciary was not bound by the other branches' erroneous interpretations of the Constitution and could properly assert its own views, within the scope of the legitimate exercise of the judicial power.

This theme pervades so much of our constitutional history -- from Jefferson to Jackson to Lincoln to Roosevelt to Reagan to Obama -- that it simply cannot be ignored. Yet it is astonishing how insistently textbooks and popular media ignore it! This indeed is one of the major lessons of the book: constitutional interpretation is a game best not played alone, and one that can legitimately be engaged in -- and ought to be engaged in -- by presidents, senators, representatives, governors, juries, voters, and citizens. It's a cliche, but it's true: The Constitution belongs to "We the People."

Luke Paulsen: We think it's important because it's so crucial to appreciating and understanding the Constitution! This is a point that I feel strongly about. The whole notion of an introduction to the Constitution is, for me, premised on the idea that knowing the Constitution is an important part of citizenship-- that the Constitution really is, and remains, the people's document. It's the foundation of our government "of the people, by the people, for the people"-- which implies that "We the People" must somehow be involved in the Constitution's interpretation if our system of government is to function properly. Otherwise, the powerful and influential would be free to manipulate the Constitution's meaning in such a way as to bypass democratic government. And some would argue that that's exactly the kind of thing the Supreme Court has tended to do in the past half century or so. Or, to come at the question from the other direction: if non-judicial (and democratically responsible) actors don't have a major role to play in interpreting the Constitution, then why should anyone outside the federal courts and the legal academy be interested in its meaning? In that case, what would be the point of having a general introduction at all? Besides, the Constitution's history of non-judicial interpretation is so rich and fascinating that we couldn't possibly fail to emphasize it. It makes for a better book, one that engages the reader's interest more deeply, and one that's more truly an "Introduction".

JB: Over the course of its history, how well do you think that the Supreme Court has behaved in upholding and interpreting the Constitution? If we had to do it over again, should we have structured the federal judiciary differently?

Mike Paulsen: Speaking only for myself, I wouldn't structure the federal judiciary any differently -- but perhaps that's because I've become so thoroughly steeped in the law of Article III (teaching "Federal Jurisdiction" for several years) that the familiar has become attractive to me. But as for how the Supreme Court has done at the task of interpreting the Constitution, I'd have to say the record has been decidedly mixed. There is a seemingly regular, insistent litany of major disastrous holdings in the Court's history: Dred Scott, Plessy and its myriad variations, Hirabayashi and Korematsu, Prigg v. Pennsylvania, Bradwell v. Illinois, Lochner, Buck v. Bell, Gobitis, and (to our minds) Roe, Casey, Carhart and the other abortion decisions. The list is long enough -- many, many more could be added; everyone will have his or her own special most-hated-cases to add to the list -- and so distressingly regular over time, that it surely should be enough to make one question the wisdom of essentially unchecked judicial supremacy in constitutional interpretation. But at the same time, there have been some truly magnificent, restorative, uplifting judicial decisions (and these get plenty of attention in our book, as well): Brown v. Board of Education, West Virginia Board of Education v. Barnette, Youngstown Sheet & Tube, Strauder v. West Virginia, McCulloch, and dozens more.

My appraisal is that the Supreme Court's performance, over time, has been inconsistent, uneven, imperfect. (Is there really any room for doubt about that?) And one possible lesson the book suggests is that the Court has tended to do best by the Constitution in those instances when it has stuck faithfully, but fearlessly, close to the text and the original meaning of the Constitution, and not been swayed by the political winds of the day (or tried to create such winds itself). In addition, some of the Court's greatest landmarks have come in cases where it has overruled itself -- corrected the errors of a previous era. (Barnette and Brown, two of my favorites, are examples of this.)

Not all will agree, of course. But "if we had to do it over again," I wouldn't structure the judiciary differently. I'd just want some of the judiciary's decisions to come out differently. :-)

Luke Paulsen: Should we have structured the judiciary differently? No way! As complicated and imperfect as the Constitution's history has been, it's been astoundingly successful at its main objective-- creating an effective, stable, democratic system of limited government-- and I wouldn't want to go back and tinker with anything. Unless, that is, I could avoid promoting and protecting slavery so much, while still getting the Southern states to agree.

As far as the Supreme Court goes, it's behaved more or less as I would expect any of our political institutions to: doing the right thing marginally more often than not, often behaving inconsistently, and aggregating more power to itself whenever it can. It certainly hasn't been anywhere near perfect or infallible, but then it was never meant to be. And the other parts of government have been able to push back against its worst excesses-- which just goes to show that, in general, the Constitution is working as intended.

Posted 9:00 AM by JB [link]