Rethinking All the Rules

On the first day of our constitutional law class, a hundred or so of us assembled in a large classroom set up something like a theater, with two long rows of steps down to the platform and podium used by the teacher. It was the beginning of the second semester of our first year and we had survived thus far, so we were cocky enough to be talking noisily.

Then the professor came in: Charles Alan Wright, whose name graced various textbooks, who argued regularly before the Supreme Court, and who was particularly noted at the University of Texas law school for coaching the aggressive intramural football team the Legal Eagles. By the time he reached the front of the room, you could have heard a pin drop.

He looked around at us and then said, in a mild voice, “Would someone please give us the case of Marbury v. Madison?”

Now anyone in that room could have explained Marbury v. Madison. Hell, we learned about it in high school. Plus we were law students, legal nerds by definition.

For those who’ve forgotten high school or who aren’t from the US, it’s the case where Chief Justice John Marshall ruled that the Supreme Court can weigh in on the constitutionality of laws and actions by other branches of government. It’s a gimme question. Wikipedia has a good explainer on the case.

Yet everyone else in the room breathed a sigh of relief when Mr. Timmons raised his hand and gave the answer. That’s just how intimidated we were by the professor and by the importance of constitutional law.

Here’s the thing, though. The one thing that didn’t occur to any of us was to question whether Marbury was a good idea. I mean, it would have been like questioning the gospels in a Baptist Sunday school.

Professor Wright certainly didn’t raise the point. I doubt he ever questioned it. But after the last few rulings of the current Supreme Court, it’s pretty clear that allowing a group of unelected lifetime political appointees to be the sole arbiters of what’s constitutional is one of many flaws in our system.

Mind you, my politics were on the left back then, too. I was going to law school to get the skills necessary to defend my friends from the law and to use the law to build things — like co-ops — that would bring about some change in the world.

But it never occurred to me back then to question whether the Constitution worked or whether the Supreme Court should have the final say.

In some fairness to myself, I started paying attention to Supreme Court rulings in the 1960s, when Chief Justice Earl Warren (a former Republican governor of California, so definitely a political man) led the court. My idea of what the court should do was formed by cases like Brown v. Board and Griswold v. Connecticut, not to mention all the billboards erected by the John Birch Society (a group that was considered the outside edge of right wing extremism in the 60s but whose views have become mainstream in today’s Republican Party) that said “Impeach Earl Warren.”

I went t0 law school to learn how to use the system. Even though I opposed certain aspects of that system, it didn’t occur to me to question how it worked.

I wish now that I had.

In recent years, I’ve started to question our founding documents. I’ve found some good writing on the subject..

Sandy Levinson, who is also a professor at the University of Texas law school (though after my time) wrote a good book called Our Undemocratic Constitution.

Elie Mystal’s book Allow Me to Retort: A Black Guy’s Guide to the Constitution, provides a wonderful and snarky guide to what’s wrong with the document. (Hint: It’s kind of trash.) I reviewed it for the DC Bar magazine and posted that review here on the blog.

Respected journalist James Fallows wrote this week on his Substack:

My line has always been that, on the contrary, only a country with as much already in its favor as the U.S. has— size, location, assets, natural riches, ability to absorb endless waves of newcomers and become the platform for their success—could have gone so far for so long with this defective framework. We have succeeded in spite of our antiquated rules, rather than because of them.

All of us, not just lawyers, need to join this discussion. In the last couple of weeks, our Supreme Court has dismantled the clause in the First Amendment prohibiting establishment of religion, reversed a right to abortion that had been in place for almost fifty years (the first time the court has actually taken away a right), and, in a time when disasters tied to climate change are front page news, struck down an EPA policy (one that was only proposed and not in place) that required changes in the way electricity is generated to get away from coal plants.

The people of this country don’t want these policies and these decisions are based on bad legal reasoning. But no one seems to wants to take action because we worship the constitution and think Marbury is holy writ.

I think Fallows is right. The framework’s defective. We’ve been lucky.

If we’re really lucky — and if some people in positions of power take needed action — we may get through this.

To do it, we’ll have to stop believing that the U.S. and its constitution are exceptional and create some better laws and systems.

I don’t want to live in an “exceptional” country. I want to live in a democracy.