Breathing Life Into The Constitution

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September 18, 2008 (NEW YORK) –  A panel of five Columbia Law School professors celebrated and  dissected the U.S. Constitution during a lively panel Sept. 17 in Jerome Greene Hall that drew a standing room only crowd of more than 100 people.
“It’s a document, in spite of all its flaws, that I love,” said Professor Theodore Shaw, echoing the criticism-tinged admiration of the Constitution offered by several of his fellow faculty members. Shaw ’79, the prominent civil rights lawyer and professor of professional practice at Columbia Law School said, “There is nothing more important for a lawyer to do than to breathe life into it.”
The panel discussion, moderated by Dean for Social Justice Initiatives Ellen Chapnick, marked the 221st anniversary of the Constitution’s signing in 1787. A 2004 Congressional provision spearheaded by U.S. Sen. Robert Byrd (D-W. Va.) — a man who carries a copy of the Constitution in his pocket — requires all schools and other institutions that receive federal funding to teach or discuss the document on Constitution Day, which is held each September on the anniversary of the Constitution’s adoption.

“For those of us who teach constitutional law, this is our vindication day,” said Professor Trevor Morrison, a 1998 Columbia Law School graduate who joined the faculty this year. “You don’t see ‘Torts Day.’ There must be a reason for that.”

 The Constitution Day panel drew a big crowd including former Dean Barbara Aronstein Black. Several students took notes while seated in the aisles as the professors showed how interpretation and application of the centuries-old document remains critical to many of today’s most pressing and politicized issues. Morrison, for instance, explored the role of constitutional law at the U.S. military prison in Guantánamo Bay, Cuba, where many prisoners have been denied habeas corpus — but as Morrison explained, applying the Constitution’s single and opaque mention of habeas corpus to something like this country’s ongoing war on terror can be tricky.
“What, if any, constitutional right do non-citizens have as enemy combatants outside the conventional United States?” Morrison asked.
Professor Katherine Franke, director of Columbia Law School’s Gender and Sexuality Law Program, also analyzed the relevance of constitutional law today, discussing how hot-button issues involving gender, sexuality and reproductive rights are often argued under liberty precepts promised in the Constitution despite the fact that gender, sexuality and reproduction are never mentioned in the Constitution.
“The Constitution not only doesn’t mention sex or sexuality or gender, it doesn’t mention race,” Shaw added. “It doesn’t mention slaves.”

And yet, several professors said, many of these issues are often viewed as being constitutional in nature. That’s in large part because the Constitution has become something bigger and broader than the document itself, Professor Jamal Greene argued.

 “When we talk about the Constitution in political campaigns and judicial nomination hearings, kitchen tables, and panels like this one, it’s often assumed that we’re all talking about the same thing, namely a piece of parchment that was signed by 39 men in Philadelphia 221 years ago, amended 27 times since then,” said Greene, who joined the Columbia Law School faculty this year.
“What we’re really talking about is a set of understandings, perhaps established by the text of that parchment, but subsequently worked over, kneaded, sometimes flipped entirely through political contests, judicial interpretation, social upheaval,” Greene continued. “After all of that, the Constitution we’re left with is not precisely a document, but a set of understandings, a figment of our collective imaginations grounded in but not limited to that written document. And I want to suggest that we’re all the better for it.”
Professor Philip Bobbitt agreed. “That part of the Constitution isn’t on paper,” he said. “That part of the Constitution, it can’t be erased by courts or diminished by presidents, that part, that’s in you.”
Several students said after the panel that they were certainly the better for having been there.
“I was very impressed,” said Michael Brazaitis, 22, a first-year law student from Maryland. “It was five scholars who are at the top of their field.”
“It was interesting that they all had the same attitude that the Constitution was a living document,” Brazaitis continued. “The applications of the Constitution, trying to extend it beyond what the text actually says, that’s really interesting. That’s exactly how I think of it .”
Trisha Gill, 33, a general studies student at Columbia who attended the panel, said she believed all Americans could benefit from such unflinching discussions of the Constitution and its role today. “It was great,” Gill said. “This conversation could go on for days.”
Columbia Law School, founded in 1858, stands at the forefront of legal education and of the law in a global society. Columbia Law School joins traditional strengths in international and comparative law, constitutional law, administrative law, business law and human rights law with pioneering work in the areas of intellectual property, digital technology, sexuality and gender, and criminal law.

    Ben Frumin