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Monday, December 11, 2006

In the News: Justice Scalia vs. Law Profs at Harvard

In a recent Harvard Law Record, there is an interesting story about Justice Scalia's recent visit to Harvard and his jousting with Dean Kagan and Profs. Ackerman and Manning. Here are the relevant excerpts:

1. When Dean Kagan asked Scalia about his support  for a "dead" Constitution, Scalia responded: "I can package it better than that. I call it the enduring Constitution."

2. "Professor Bruce Ackerman, who offered a Wendell Holmes Lecture Series this fall called 'The Living Constitution,' asked Scalia why the justice does not see his task as interpreting the meaning of the words in the Constitution as they are understood today. Scalia again emphasized that ordinary statutes are not reinterpreted as time passes, but that Congress must respond with legislative action to changing times and meanings."

3. Finally, before you ask Scalia a question, take note of his exchange with Prof. John Manning,

who asked Scalia about analysis of open-ended phrases in the Constitution: "How do you know that [such] phrases aren't meant to delegate to the courts the authority to take into account changing morality and sensibilities?"

Scalia, not one to mince words, responded tersely and with his characteristic sense of wry humor, calling Manning "an easy target."

"How do I know? I know because it would be idiotic otherwise," Scalia said. "Do you seriously think the Constitution would have been ratified if it had a clause that said the document would be interpreted by nine different lawyers?"

These are typical questions 1Ls ask about the Constitution. Is it a "living, breathing, evolving" document, or does it have a fixed meaning as originally understood. When a student asks me about the "evolving" Constitution, I usually respond something like this:

Where does a judge applying an "evolving Constitution" look to determine what new species the written constitution has evolved into? DNA testing? Bob Bork says "the truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." Do you agree? Is the "living Constitution" theory really a theory of evolution, or is it more accurately described as a theory of intelligent design?

Do these issues come up in Property? Many of them do in my classes. I am fascinated by the overlap between Constitutional Law and Property, not just in the Takings area, but also with respect to religious land use, race and exclusionary zoning, race-restricting covenants (including those that are racially neutral on their face, but operate to exclude minority residents from restricted communities), speech-restricting covenants (and their enforcement by homeowner's associations), and substantive due process cases like Moore v. City of East Cleveland. When I teach Moore, I turn it into a restrictive covenant case and ask students whether a covenant that defined family in exactly the same way as the City did in Moore could be enforced against Mrs. Moore. Does Shelley apply, for example, to covenants that restrict SDP rights and First Amendment rights?

At Nebraska, Con Law is a 2L course, so I try to bring a little more of it (plus RLUIPA) into my Property class to give the students a little more exposure to public law as part of their first year experience. One of the advantages of teaching Property as a 6-credit, 2-semester course is there is a little more room for exploring some of these very interesting issues.

Rick Duncan

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