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Friday, November 18, 2005

Constitutional Law Myths?

I wonder if our wonderful readers can help out with some suggestions on this.  I'm looking for examples of constitutional law "myths" -- instances in which some legal or factual proposition has become part of the received wisdom of constitutional law, and especially of classroom lecturing and discussion in constitutional law, although the proposition is or may well be simply wrong.  To take a possible example, from my reading of the Pos's Foreword (on which I hope to have a substantive post soon): inevitably, in classroom and/or academic discussion of Griswold, the argument comes up that the statute at issue in that case was unenforced, and that perhaps this should bear on the constitutional arguments in that case.  The Pos writes, at footnote 150 of his piece, "Actually, the statute was enforced, though only against birth control clinics," citing Sex and Reason.  Another example, although quite a controverted one, might be whether or not Justice Roberts in fact made a "switch in time." 

I'm eager for your suggestions about other constitutional law myths along these lines -- factual or legal propositions that are part of the received wisdom but arguably wrong.  I stress that I'm not looking simple assertions that a decision or a key bit of reasoning is wrong, e.g., "It is a constitutional law myth that due process contains a substantive component."  I'm looking for instances in which the story we commonly tell somehow managed over time to incorporate errors that go largely unquestioned.

The impetus for this is, in part, William Van Alstyne's recent interesting article about teaching constitutional law, in which he says law professors often peak as teachers around their fourth or fifth year.  The idea here, more or less, is that by this point we know the doctrine and issues well enough to do a strong job of teaching them; but at some point we are so conscious of complications, warps in the fabric, nice but small issues along the way, and so forth that we are tempted to cram them into what used to be a coherent and manageable course. 

I would add to that the notion that law professors -- not just in con law, I think -- spend their first few years learning how to teach magnificently some version of the received wisdom in their subject, encouraged all along by casebooks and teachers' manuals.  Granted, the received wisdom contains both a conventional story and a set of conventional critiques; it's not one-sided.  But even when one teaches both sides of the issue, that teaching is usually based on some set of received facts and conventional narratives.  Teaching the Commerce Clause narrative is one example, I think, in my field. 

At some point, however, those professors who are not blindered in one way or another have read too many "But see[s]," too many articles and arguments that challenge foundational facts key to the conventional wisdom, to continue comfortably along this path.  At this point they face the dilemma of either teaching the received wisdom in class half-heartedly or cynically, or retooling entirely -- a move which carries significant costs in time and effort, which may overcomplicate the course, and so on. 

Responses -- to my call for examples of constitutional law myths, or to my "From Innocence to Experience" vision of law teaching -- are welcome.      

Posted by Paul Horwitz on November 18, 2005 at 12:16 PM in Constitutional thoughts, Teaching Law | Permalink

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I believe that one constitutional law myth is that after the Supreme Court issued its decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), concerning the removal of Indians, President Jackson stated "John Marshall has made his decision, now let him enforce it." I do not think there is any credible evidence that Jackson ever said this.

Posted by: lazerwolf | Nov 22, 2005 4:58:46 PM

miller v us. lots of myths about this one. the holding was something like this: before dismissing a case a second amendment grounds, the court should hold an evidentiary hearing. That isn't what the ABA wants you to think the case held.So many myths would die (or, better yet, fail to materialize) if people took the time to read the actual text, be it a law, an Opinion of the Court, or the Constitution. I can't help but feel that people are increasingly seeing the Constitution and certain high-profile cases as malleable symbols rather than actual texts. I am absolutely convinced, for example, that you could fire a cannon loaded with grapeshot into an abortion protest on the steps of the Supreme Court - to a man, carrying placards either for or against overturning Roe - and not hit a single person who has read Roe or Casey. Which, since the material is available online for free, is indefensible. If there is truth in Justice Black's aphorism that, for the common man, what is unconstitutional is that which he dislikes, and whatever he likes is constitutional, it is because of this bizarre habit of abstraction.

Posted by: Simon | Nov 21, 2005 2:07:03 PM

I have articles coming out that deal with a couple of con law myths. One is an empirical study of strict scrutiny decisions in the federal courts that shows that strict scrutiny is not "strict in theory but fatal in fact" -- and not just in Grutter. There are well over a hundred federal court decisions upholding a law while applying strict scrutiny between 1990-2003 (the period I studied), and in every area of con law where SS applies. In some doctrines the "strict scrutiny survival rate" is well over 50%. In another article, on the Second Amendment and potential standards of review for an individual right to bear arms, I also take aim at another popular con law myth: the idea that fundamental rights receive strict scrutiny. Several fundamental rights do not receive strict scrutiny (e.g., abortion rights under Casey; sexual intimacy under Lawrence; and most of the Bill of Rights incorporated against the states because they are fundamental to American justice).

Posted by: Adam Winkler | Nov 21, 2005 1:50:41 AM

1. perhaps the most famous: You have the right to remain silent.... If you cannot afford an attorney, one will be appointed for you.
2. miller v us. lots of myths about this one. the holding was something like this: before dismissing a case a second amendment grounds, the court should hold an evidentiary hearing. That isn't what the ABA wants you to think the case held.

Posted by: arbitraryaardvark | Nov 19, 2005 10:18:26 PM

Ken Kersch's book Constructing Civil Liberties documents so many constitutional myths it's hard to know where to begin.

Here are a couple I've written about: The Lochner decision had nothing to do with "Social Darwinism," nor with protecting "common law baselines."
Harlan's Plessy dissent, read closely, was based, as a legal matter, on a due process "right of locomotion", not on the Constitution being colorblind.

Posted by: David Bernstein | Nov 19, 2005 4:37:47 PM

Thanks, Dan -- and Orin. I haven't weighed in and won't because in either event those "myths" or non-myths wouldn't be part of the established narrative in a standard con law class, given the usual, understandable but unfortunate parceling out of the Constitution into different substantive courses in the law school curriculum.

Posted by: Paul Horwitz | Nov 19, 2005 3:40:19 PM

The Kerr article is wrong, wrong, wrong . . . and then some! :-) Check out my critique of Kerr's article: Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham Law Review 747 (2005).

Posted by: Daniel J. Solove | Nov 19, 2005 3:33:25 PM

I wrote an article in this tradition on the Fourth Amendment and its regulation of new technolgies: The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004).

Of course, whether the Myth was wrong or I am wrong is an exercise left to the reader.

Posted by: Orin Kerr | Nov 18, 2005 9:01:02 PM

I don't know if this counts as a "constitutional myth" or not, but it is certainly something that is repeated, very often, as fact, despite being entirely fictional: the near-constant repetition that Originalism is the doctrine that says we should inhere to the "original intent" of the Framers. ConLaw textbooks refer to it as such; Black's so defines it; and several high-profile law professors pathologically refer to it as such, as if the credibility of their disavowal depended upon it (which, needless to say, it does). This despite the fact that every prominent Originalist for twenty years has disavowed original intent, and despite its basic irreconcilability against the philosophical underpinnings (formalism) and frequent travelling companions (textualism) of Originalism. This silly myth / lie has to go.

I think you'd also have to count the entire doctrine of substantive due process as a myth, but that's unlikely to be a popular proposition. ;)

Posted by: Simon | Nov 18, 2005 5:21:29 PM

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