A Post In Memoriam

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Aziz Z. Huq

As I sat down on a Saturday morning to write, belatedly, a contribution to this Balkinization festschrift, I learned of the passing of my 1L professor R. Kent Greenawalt. The two decades since his class mark the duration, roughly, of Balkinization. The news sparked reflection, at least for me, about the personal qualities that make a constitutional scholar great, and even exceptional. Accordingly, I want to use this opportunity to reflect on Greenawalt as an exemplar scholar in relation to this symposium’s themes. 

I did not have many occasions to interact with Greenawalt; only one exchange of significance after I graduated comes to mind. Yet his rich practice as teacher and scholar offered a formative template for my understanding of the academic practice of constitutional theory. I encountered Greenawalt first, and foremost, as a classroom professor. And I will dwell on that experience here not only for narrow, autobiographical reasons: I do so also because the institutional context of the American law school, centered on its teaching function, necessarily provides existence conditions and vectors for constitutional theory.

Without a flow of students willing to borrow and then pay the metastatic expenses of the American postgraduate law degree, theory scholars would be in a rather different place. “Constitutional theory” would likely in the same parlous financial waters as, say, literary theory. Likely, we’d all be adjuncts moonlighting at Starbucks. And yet it is striking that only a sliver of those who pass through the constitutional law curriculum of American law schools each year will go on to practice something legible as “constitutional law.” (Yes, I understand that prosecutors and defense counsel have roles shaped by constitutional law—but their role is not to do constitutional law routinely, so much as to navigate its sharp corners).  In most so-called elite law schools, a large proportion of students go on to work at large law firms on largely commercial matters. That constitutional theory is a prestigious mark is not due to its intrinsic economic value to them. Nor is it universally true around the world that “constitutional theory” as such is distinctively prestigious. In other parts of the Anglophone world, private law theory and jurisprudence in the analytic tradition have as much or more prestige. Some other explanation must be offered for its outsize status in the catalog of American legal education. More on that in a moment. The point here is simply to point out how the institutional conditions of teaching enable theory to thrive. 

A further point is this. Classroom teaching is an important context for constitutional theorizing because it’s through teaching that a person most immediately and profoundly shapes others’ understanding of, and moral orientation toward, the law. Case in point: I was quite appallingly badly prepared for law school when I arrived at Columbia.  Economics, political science, and philosophy had played no significant role in my tertiary education. It didn’t help to have grown up in a country where “my constitution” is a blimpish circumlocution for “how I’m feeling today.” In all candor, I did not have a terribly auspicious start to law school. Much as I’d like to blame this on my first clutch of professors, I probably had myself to blame. By January of my 1L year, a lockjawed stoicism had set in. A beady eye was increasingly fixed on the perceived horizons opened by the degree. I was hardly alone in this. Indeed, a goodly fraction of my class seemed to have collapsed into the same glassy-eyed indifference, broken only by news that Skadden or Kirkland had hiked starting salaries or bonuses. 

So Greenawalt had the unenviable task of a teaching a mandatory 1L class in the January term on the foundational texts of legal theory to seventy-odd students seized in varying postures of indifference. He was not, at least then, a charismatic teacher in the vein of a Professor Kingsfield. Indeed, there was no Socratic drilling in his classroom. Rather than being cowed into submission by glamor or bullying, he would persuade through the quiet performance of dignified and serious engagement with arguments on their own terms. He won our ears by thoughtfulness. I recall one day when he asked a pretty straightforward question about a reading to four people sitting beside each other toward the back of the class. Each in turn floundered in a way that made plain they’d not read. Gravid with quiet disappointment, he did his best to elicit thoughts without causing embarrassment. And a small forest of hands rose in elsewhere in the classroom as other students, moved by a mix of shame and sympathy, offered to engage. 

Yet over the course of the term, he won me and (I believe) a few of my peers over to his way of theorizing: A close study with the text. A willingness to recognize that one always sat at the confluence of many traditions. One was always stepping, belatedly, into a conversation that had been unfolding in many registers before this day. The need to take arguments on the terms they were made. The obligation to search for the assumptions with sympathy rather than with scorn. Respect, not casuistic objection, was the necessary tenor for meaningful critical engagement that flowed toward learning. And always the view toward learning while accounting for one’s own inevitable limitations and blindnesses. It was in Greenawalt’s class that I first encountered not just Rawls but H.L.A. Hart and others. Their work continues to engage and excite my curiosity in relation to the mysterious thing called the law. So I owe him. Without his patience, I would not have found my way to them. I’m uncertain my case should be counted as a win for constitutional theory—but at least it’s a proof of the classroom’s catalytic potential. 

I have another recollection, necessarily imperfect, of a particular interaction Greenawalt had with a student over Rawls’s argument from the original position. Like me, this student had seemingly not studied Rawls in depth previously. He seemed, I thought, to have a smattering of libertarian intuitions or a half-formed lump of Nozick lodged somewhere in the thorax. The student had raised his hand, and then proceeded to triumphantly point out the fatal, to-date-unnoticed flaw in the whole Rawlsian enterprise—the original position never happened, so there was no actual consent to any of the ensuing principles of justice. (Newsflash—the social contract is … hypothetical!!) He did this with the air of a blood-smeared Roman gladiator lofting triumphantly the head of a recently eviscerated Carthaginian lion. 

Now, having taught myself for a few years, I well recognize the psychological impulse to quell that this trilling sort of classroom performance sparks. Greenawalt, I as recall it, resisted that urge to asperity. Instead, he led the student back to the text, the words themselves, patiently waiting on the clean page. Defusing the imminent ideological conflict with exegetical precision, Greenwalt examined the student’s argument with him, separating what Rawls in fact offered by way of justification from its important lacunae. (A more productive discussion, as I recall, ensued in which the student played a cogent part). 

That moment exemplifies a certain sort of modesty, an attention to detail, and a respect for differences that I, no doubt, usually fail to evince. What still strikes me as key to the moment is that the text (here, a work of political philosopher, but it could have been a case or a statute) was taken on its own terms. It is not a way of casting light on something else, or a litmus test for a project of obvious contemporary relevance to policy or politics.  One always had the strong sense from Greenawalt as a teacher that ideas about the law were worth taking seriously on their own account. They were not mere instruments to another good, but as needed good-faith effort to be useful as one wrestled with the inexorable problems of collective political life. 

Something of the same can be said of Greenawalt’s scholarship. To begin with, he was nothing if not prolific. Westlaw lists almost a hundred articles (although some are reviews of his books; one website lists almost twenty of those). If nothing else, this ardent and persistent labor is surely impressive in a world in which a law professor can gain tenure and then write only an article every year or two or three. If nothing else, Greenwalt’s graft conveyed a sense of the immense privilege that comes with the liberty to read, think, and write as a vocation. It reflects on how this is a privilege few others have—and one that must constantly be earned afresh rather than wasted. 

The last Greenwalt book with which I earnestly grappled was his magnificent, and magnificently casuistic (in the best, and purely celebratory sense) two-volume work Religion and the Constitution.  At the time, I was immersed in legal practice, but drafting an entry-level paper that touched on some Religion Clause issues. The two volumes were of immense value to me. They kept alive both the doctrine and a fluid sense of the ideas that might animate it. One never had the sense that Greenwalt was failing to take seriously either side in what, even then, were bitterly contested culture wars, yet alone wielding a partisan ax. Shorn of any Mao-like ambition to rectify the American law of religion for eternity, the prose was (and is, on rereading now) lucid and balanced. As in his teaching, Greenawalt took law its textual forms and also its animating ideas seriously.  Not that any of this redeemed my paper, which was a mess. I recall communicating briefly with Greenwalt about that paper. It was the only time I spoke to him after graduating. My recollection (tinged with nostalgia now) is that he tried, very nicely, to tell me where I’d gone wrong. No doubt, I was too callow or too stupid (or both) to listen or understand.  But he was very nice, and spoke with great solicitude. He didn’t make me feel as dumb as I actually was. 

I think there was a common thread weaving Greenawalt’s teaching and his scholarship together. I would say now that both were acoustically separate from institutional compulsions.  On the one hand, Greenwalt took his interlocutors—his students and his readers—seriously despite their distractions and defections from the scholarly cause. He took them as engaged in the same clear-eyed and undeluded quest for understanding.  He well knew, I imagine, that most of his students had no instrumental use for Rawls, or for that matter the Religion Clauses. But he spoke to us as if we could, and as if we should, take those seriously just on their own terms without regard to the merely pecuniary dynamics of the law school.  He assumed we could be serious theorists even if we had other, more sublunary, ambitions in mind. His classes thus transcended the circumstances that made law school possible. 

There is another way in which contemporary American constitutional theory labors under a compulsion (to which I said earlier I’d return). The high status of constitutional theory is untethered to any actual productive function in the service economy. But it has what might very coarsely (and somewhat inaccurately) be called a ‘political’ valence. American constitutional theory is high-status in large part because so much political energy flows through the federal judiciary—in a way that has not have an exact parallel in Anglophone jurisdictions where constitutional theory is not so feted. To be clear, this is not a new phenomenon. As I’ve argued elsewhere, it was immanent in Article III’s design. Perhaps its expression becomes more plain as certain inflexion points. But that doesn’t mean it ever ebbs entirely. Constitutional theory—understood as a institutional situated not just in the law school simpliciter—implicitly trades on the prestige of this affiliation even if its practitioners deny the ligature. There is a symbiotic relationship of reciprocal legitimation running between theory and certain elite segments of the bench and bar. Witness, for example, the many and prominent mentions of professors’ and recent graduates success at acquiring Supreme Court clerkships. (I suspect we all have our own private repository of moments at which the mutual dependency of academy and constitutional bench takes on a particularly crass form, and I refer you to your own private stock here). 

This is not to say that individual producers of constitutional theory cannot escape this gravitational field. Some can, and do. More parsimoniously, it is to suggest that they necessarily transact their professional lives in an institutional setting in which the terms of prestige, and hence disciplinary status, are tightly bound with constitutional law’s political (again, in a coarse sense) potentialities. Even if individual professors conduct themselves with dispassionate zeal and propriety—as I have no doubt many or even most do—the background economy of prestige in which they hire, promote, and place their articles is one where the terms of valuation depend not a market for ideas, but a market for more crass ideological tools. 

A cynical view of Greenawalt’s scholarship resists the idea that he escaped this ecosystem. It would instead contend that he came of professional maturity in an era of relative consensus, at least among legal elites, in respect to certain normative touchstones. In that airless space, it might be argued, neutrality is easy to ape. I prefer not to take this view. Greenawalt published his first law review article as an assistant professor in 1968. Hardly a high-water mark for ideological consensus. Rather, I would like to suggest that Greenawalt indeed managed that rare balancing act—engaging with fraught questions of religion, speech, and privacy without becoming conscripted onto any side because he worked at an acoustic separation from the ideological economy of prestige in constitutional theory. In certain ways, this means that his work is more likely to drop from view now. Simply put, it lacks immediate utility to partisans, and so is more likely to be ignored. In other ways, there is the chance that it means the work is more likely to have enduring value. For it aims to speak beyond its moment. 

Like private jets or conflict diamonds, constitutional theory is a luxury good with potentially high and harmful spillovers. The virtues of Kent Greenawalt’s teaching and his scholarship of constitutional theory were one and the same: They strove to sidestep and hence slip out from the institutional baggage of such theory, and to find a space in which thought could be pursued in the free and open air, with a minimum of such externalities. I can think of far worse models to emulate.

Aziz Z. Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago School of Law. You can reach him by e-mail at huq@uchicago.edu.