Law School Scholars Reflect on the Past, Present, and Future of the Constitution


Public Affairs: 212-854-1787
New York, September 18, 2009 – The U.S. Constitution is now 222 years old, and professors at the Law School’s annual celebration of its signing Thursday noted it remains a document against which few others can be measured.
The same goes for the vigor and degree over which its meaning is debated, said Ellen Chapnick, Dean of the Social Justice Program.
“Our country is very active these days and very embroiled in discussions and demonstrations, many of which touch on the Constitution,” said Chapnick, who moderated the program.
Below are excerpts from the professors’ remarks from Thursday’s program:
Philip C. Bobbitt, Herbert Wechsler Professor of Jurisprudence:
“I think this will be our greatest gift to mankind, that when this culture that has raised and nurtured all of us has given way to other cultures, that what will live may not be jazz or cheeseburgers or passion for Japanese electronics, it will surely be our Constitution.”
“…I believe that if you preserve and protect and defend the Constitution to the best of your abilities, that you all will never fear the future or its terrors.”
Associate Professor Jamal Greene spoke about the Dred Scott decision, the notorious 1857 case that said blacks could not be citizens because they were not eligible for citizenship when the U.S. was founded.
“I happen to believe that based purely on legal analysis, and even based on the political judgment of the court that Dred Scott, while a bad decision, is not nearly the worst decision in the history of the Supreme Court. I also believe, however, that it’s entirely appropriate, and perhaps even vital, to our national ethos, that we think about Dred Scott in those terms. And I want to suggest that the capacity of our Constitution to accommodate the lessons of a case like Dred Scott is its genius.”
“The real sin of Dred Scott … is its loyalty to a constitutional vision that, while entirely plausible at the time, we have decisively repudiated.”
Kathleen Franke, Professor of Law and Director, Gender & Sexuality Law Program, reflected on the battle over same-sex marriage, including disagreements in the gay and lesbian community over legal strategy, and noted how the Constitution may – or may not – fit in.
“You know the often-said aphorism that ‘an injustice anywhere is an injustice everywhere.’ Well, on some bumper-sticker level that’s true. But we make choices about which cases to bring when, how to frame them … there are strategic judgments made within communities by people affected most by the injustices that are at stake in these cases.
“This document is not just a piece of paper for which there are right and wrong answers in terms of whether rights have been abridged … but the questions are much more complicated and political and, what I want to urge you, more ethical than that, more normative than that.”
Associate Professor Olatunde Johnson focused on the debate that led to the creation of the Advice and Consent power in the Constitution, which authorizes the Senate to confirm judges, ambassadors, Cabinet members and ratify treaties. How the Senate acquired this power was of particular interest to the late Sen. Edward Kennedy, said Johnson, a former Kennedy aide and staff member on the Senate Judiciary Committee.
Johnson talked about the recent confirmation hearings for Associate Justice Sonia Sotomayor, and noted how they may have revealed little about Sotomayor, but still played an important role.
“A lot of people ask me whether I thought the process was a farce and I couldn’t quite come to say it was … Maybe the hearings weren’t that helpful … I think the idea that the Senate has a vigorous role as the vehicle for public input. Even if the Senate isn’t realizing it in exactly the way I want it to, I think it’s where we have the power and influence over the shape of the Constitution.”
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