Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Christopher Green, Professor of Law and Jamie L. Whitten Chair in Law and Government at the University of Mississippi School of Law. This episode is Part 1 of a four part series on the Constitution and the Reconstruction Amendments. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Green, how do you teach Constitutional Law? What do you emphasize most? Well, for law students, constitutional law is different from the kind of thing you study in contracts or in torts or in civil procedure. So when I teach constitutional law, I'm teaching it to people in the spring term of their first year. And unfortunately they think of law itself as inherently the kind of thing that gets done the way Justice Cardozo would do these contracts opinions or Justice Holmes would do these torts opinions. So you look at the particular facts and you look at the situation, you get really good at drawing analogies to other fact situations, and you just make up the right rules. Sometimes you take the same rules in earlier case, but more or less you’re reasoning from case to case. Constitutional law is not like that. Constitutional law is the interpretation of a particular document, the constitution that expresses things at a particular point in time. It's not a common law subject that's evolutionary where judges really their mandate as judges doing tort law, doing contract law, is to come up with the best decision in light of all the precedent they've had before. Constitutional law is an interpretive enterprise. It might be other things as well, but it is at least partly an interpretive exercise. And law students need to know that so they can understand the difference between constitutional law and their other law school classes. I suspect that other con law professors don't care quite as much as I do about constitutional interpretation. Someone once said you have probably never cared as much about anything as Professor Green cares about whatever it is that he's talking about right now. So I'm a man of intense concern about things that just do not concern other people that much. So that set aside, the way I teach constitutional law is a little bit different from how some other folks teach it. The guiding metaphor I use is military history. So it's a series of intellectual battles that get fought. Some of the intellectual battles that you study in constitutional law are battles that don't look terribly likely to get repeated anytime soon. But learning those battles is important for a very similar reason, that it's important to understand just how it was that Alexander the Great conquered the Persians, understanding what happened in Lochner, for instance. Even though since 1937, Lochner has been an opinion of very low prestige. Understanding what happened in Dred Scott, even though Dred Scott has been overruled by the 14th Amendment. Those intellectual battles are extraordinarily important for current law because similar battles get fought today and because the constitution we have is the constitution it is because of the way in which it reacted to those earlier battles. So I always say, you don't just want to learn the boundaries of the current map of Europe. You don't just want to know who owns Alsace-Lorraine. France owns Alsace-Lorraine. Knowing that is akin to knowing just the rule that got established in the case that just got decided last June. But understanding what happened in those arguments, how those arguments clashed with each other, how it produced those boundaries. So what happened in the Napoleonic Wars? What happened in the Franco-Prussian War? What happened in the First World War and the Second World War? Knowing all of those things that explain ultimately why France has Alsace-Lorraine today, that's akin to knowing what happened in Dred Scott, and the Slaughter-House Cases, and Munn, and Lochner, and Wolf, and West Coast Hotel. All these earlier cases even though the doctrinal statement might be very simple. Don't be misled by the simplicity of the doctrinal statement that you need to know in order to pass the bar exam. Knowing bar exam, constitutional law is not the same as understanding constitutional law. It is not the same as the thing you need to know in order to fight tomorrow's battles about the constitution. Your students must enjoy the battle metaphor. Are there “good guys” and “bad guys” in Constitutional history? Well, it's sometimes very hard to know who the bad guys are. We go back to history. If you go back to the history of Alexander the Great versus the Persian Empire, it's not clear who the good guys and the bad guy are. If you think of yourself as a westerner and you go to the story of the 300 at the Thermopylae, you might say, "Well, the good guys are the Greeks." Okay? "The bad guys are the Persians." But in terms of understanding how to make a civilization hold to together, Alexander the Great was not good at that, okay? So you look at the way that his empire crumbled as soon as he died, that's not a good example. Similarly, if you look at Dred Scott even, you think the very paradigm of a terrible constitutional decision. There are certain things in Dred Scott, even Dred Scott, which get it right in ways that the court got it wrong in 1896 in Plessy versus Ferguson. So Dred Scott was right about the fact that citizenship entailed equality and equality entailed freedom from stigmatic segregation in a way that Plessy versus Ferguson got wrong. Dred Scott interpreted the social meaning of segregation properly in 1857. But Plessy versus Ferguson interpreted that social meaning incorrectly in 1896. So we should not go back to these battles and say, "We want to identify the good guys, identify the bad guys and reject every single thing that the bad guys said, embrace every single thing that the good guys said." People are capable. Indeed they're inevitably going to embrace principles inconsistent with those on which they're acting. That's one thing that Dred. Scott got terribly wrong. Chief Justice Taney said the framers were great men, high and literary requirements, incapable of asserting principles inconsistent with those on which they were acting. Well, that's just not how human beings, any human beings ever act. Everybody is able to assert a principle inconsistent with those on which they're acting. The founders asserted a principle of equality and freedom that was inconsistent with many of their own behavior, how many of them behaved with respect to enslaved people. Was Jefferson a good guy or a bad guy? Well, he's certainly a good guy for asserting and articulating the principle of human equality in the declaration of independence. Is he a bad guy for what he did with his enslaved people? Indubitably, but all of us have frequently good principles and bad actions. Tell us a bit more about how these battles play out. Is the Supreme Court the primary place that Constitutional battles happen? The constitutional law is a series of intellectual battles. It's not just a series of battles at the US Supreme Court. So I always try to tell my students a little bit about some other battles. For instance, the Helvidius-Pacificus Debates of 1793 and 1794. This is very similar by the way to the second cabinet meeting battle in the Hamilton Musical. So Hamilton and Madison, they wrote the Federalist Papers together, but then they have these series of essays back and forth about the constitutional issues related to the neutrality proclamation that Washington made in 1793. Similarly, in 1872, on February 6th, 1872 to be exact, there's a battle between two senators from Ohio, John Sherman and Allen Thurman, the rhyming Ohio senators. And they have a dispute about the meaning of the privileges or immunities clause, the 14th Amendment, which is almost identical to the dispute in 1965 between Justice Goldberg and Justice Black in Griswold versus Connecticut. So I highlight the earlier battle in part to show its similarity to the later battle and as well to explain the background of where these later battles come from. I was drawn to study constitutional law, and it's particularly drawn to study the 14th Amendment, because I saw that it was the center of these massive battles that we had been having. So when I was in high school, I studied policy debate. And one of the topics that we had related to prison overcrowding. And during that time, I started looking at law review articles. I remember going to the law library at Northwestern, driving quite a bit to get into there from the Northwest suburbs of Chicago. And I realized, "Oh my goodness, there's this wonderful literature talking about the law." And I discovered that it was a massive controversy. A few years before that we had had Roe v. Wade and everybody was talking about it. I thought I have got to understand the 14th Amendment if I'm going to understand this massively important thing that everybody is talking about these days. When I was in high school, we had the Bork hearings in 1987. And I remember I was regularly reading the Wall Street Journal editorial pages to extract little quotes for my debate arguments that I'd make every Saturday morning. And I remember reading all of their editorials about why we should confirm Robert Bork. And watching those hearings, everybody was fussing about these cases from the 14th Amendment. As far back as that, I thought to myself, "I need to understand this 14th Amendment that everybody is talking about." You mentioned the 14th Amendment, which is a good segway to talk about a particular type of Constitutional battle - battles over amendments. The amendment process assumes that the Constitution might need to be changed or updated. Why would the Founders want to set the stage for these types of battles? So we have to read the constitution against the backdrop of the Articles of Confederation. So in 1776, of course, we declare independence. We create a new entity, the United States, and we've already been fighting at that point for over a year. But a year after that, we come up with this thing, the Articles of Confederation. All the different United colonies say, "Hey, we want to get together and do some things collectively." But they were doing those things with individual consent of all the different state governments. So when we look at the Articles of Confederation, Article 13 says, "Every state shall abide by the determinations of the United States in Congress assembled on all questions which by this Confederation are submitted to them. And the articles of this Confederation shall be enviably observed by every state and the union shall be perpetual nor shall any alteration at any time hereafter be made in any of them unless such alteration be agreed to in a Congress of the United States and be afterward confirmed by the legislatures of every state." So Article 13 has a unanimity requirement for changes to the Articles of Confederation. The constitution departs from that rule in two respects. First of all, Article Seven about ratification says, “The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution, between the states so ratifying the same.” So Article Seven says that as soon as we get nine states, the constitution becomes effective based on individual consent from all of those ratifying states. But once you're in the union, once you're under this constitution under Article Seven, then we have Article Five. And Article five says, "If you have two thirds of each house of Congress and then three quarters of the states in the union, those amendments shall be valid to all intents and purposes as part of this constitution when ratified by the legislatures of three fourths of the several states." So because one of the flaws of the Articles of Confederation was seen to be the unanimity requirement of Article 13, Article Five of the constitution says we're going to allow modifications based on less than complete unanimity, two thirds of each house plus three quarters of the states. The “original” Constitutional battle took place between the Federalists and Anti-federalists over ratification. Did they agree on the need for an amendment process? At the convention, we have a backdrop where everybody understands we've got Article 13 of the Articles of Confederation. Any changes, anything adopted would have to be unanimous. One of the big objections that the Anti-Federalists make to the constitution is that once you agree to this thing, once you ratify, then you've lost your absolute veto over any changes forever. So the Anti-Federalists, they lookat the constitution. One of the things they complain about most vociferously is this doesn't have a bill of rights. And in the New York convention, which is after nine states have already gotten. . . New York is actually the 10th state to ratify. But it's very clear. We have to have New York State in the union if the union is going to function. The Anti-Federalists led by the Langton Smith say, "We really have got to have a bill of rights if this constitution is going to make any sense." The Federalists say, "Well, yes, you have convinced us that it would be a good idea to add a bill of rights in a bit once we get this going. But we promise you, we are going to seek to have bill of rights added to the constitution, pursuant to Article Five as soon as we get it up in writing." There's some Anti-Federalists in New York who say, "Well, maybe we should have a conditional ratification, where we will ratify, but only if we get a bill of rights." North Carolina ends up not ratifying until after the bill of rights gets proposed. Rhode Island doesn't ratify until even later. So some people in New York said, "Let's ratify conditionally." Ultimately though, the Anti-Federalists like Melancton Smith and his followers are convinced that a conditional ratification would do more harm than good. They did trust the Federalist to propose a bill of rights as soon as they could. In 1789, James Madison is running for Congress. He's actually running for Congress against James Monroe, his fellow future president. And Monroe is an Anti-Federalists. They says, "We have got to have a bill of rights." And Monroe and Madison says, "No, we don't have to have a bill of rights." But he realizes he's not going to get elected to Congress unless he promises to introduce a bill of rights and support it. And finally, Madison is convinced in that congressional election campaign to support a bill of rights. And then in June, 1789, Madison finally proposes the bill of rights. After lots of discussion over the summer, it gets proposed by Congress, by two thirds of each house in September, 1789. And this becomes the bill of rights that gets ratified by three quarters of the states by December, 1791. The amendments do not change the nature of the constitution as an entity, because Article Five is very explicit that when you have an amendment, that amendment is part of this constitution when ratified by the legislatures of three fourths of the several states. That said, even though the constitution is not a new kind of entity when we have something like the 14th Amendment, there is a change in emphasis about the purposes of the constitution. Now what are the purposes of the constitution? What we know those from the preamble. The preamble of course says, "We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity to ordain and establish this constitution for the United States of America." The 14th Amendment puts a much bigger emphasis in the entire purpose of the constitution on securing the blessings of liberty to a broader set of people. It's among the purposes in the preamble at the original constitution. But when you ask a question, what is the US constitution for, what is it doing, a much bigger share of what it's doing after the 14th Amendment gets passed is securing the blessings of liberty to a broader set of people. But the preamble, the statement of goals in the preamble that Gouverneur Morris comes up with at the very end of the convention, it still is basically the same set of things that any government pursues. It's an excellent set of things that explain what government is for. It's the sort of thing you can recite profitably at the beginning of a football game. Notre Dame, they recite the preamble before every football game. It's that beautiful set. And they still work today, but there has been a change in emphasis I think. Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, Originalism, the Judiciary and more. Thanks for listening. See you in class!