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THE CANONS OF CONSTITUTIONAL LAW

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964 THE CANONS OF CONSTITUTIONAL LAW J.M. Balkin and Sanford Levinson* Academic and political debates about what texts are canonical in the liberal arts have been occurring for some time. In this Commentary, Professors Balkin and Levinson discuss canons and canonicity in the study of law in general and of constitutional law in particular. Canons, they contend, are not simply collections of texts. Skills, approaches, forms of argument, standard examples, and even stock stories can be equally canonical to a discipline or culture. The authors argue that the most significant differences between how canons are formed in law and in the liberal arts stem from differences in institutional context. First, because law schools are professional schools, concerns of pedagogy, cultural literacy, and academic theory diverge more in law than they do in the liberal arts and hence form distinct if overlapping canons. Second, because legal canons rely heavily on pronouncements of courts and legislatures, liberal arts scholars have more control over their canon than do legal scholars. Nevertheless, legal scholars do have some agency in forming their canon, and the authors contend that the canon of constitutional law needs serious revision. The current study of constitutional law is too much centered on the opinions of the Supreme Court and lacks comparative and historical perspective. The narrowness of current canonical materials has had unfortunate effects for constitutional theory and legal education, encouraging too much specialization and focusing attention away from basic questions about the justice of the legal system. A revitalized constitutional canon should pay attention to structural questions that do not often come before courts, and it should include nonjudicial interpreters of the Constitution, particularly representatives of political and social movements whose interpretations often shape and influence the direction of constitutional interpretation. I. INTRODUCTION In March of 1860, Frederick Douglass addressed an audience in Glasgow, Scotland.1 Douglass, the son of a white man and a part-Indian slave, had escaped to freedom, had taught himself to read and write, and by 1860, had become one of the most prominent abolitionists in the United States.2 His subject that day in Glasgow was how to interpret the * J.M. Balkin is Knight Professor of Constitutional Law and the First Amendment, Yale Law School. Sanford Levinson is W. St. John Garwood and W. St. John Garwood, Jr. Regents Chair in Law, University of Texas Law School. We are grateful to Akhil Amar, Bruce Ackerman, John Langbein, Carol Rose, and Reva Siegel for their helpful comments on an earlier draft of this Commentary. A shorter version of this piece will appear as the introduction to a collection of original essays on the legal canon that we are currently editing. 1 Frederick Douglass, Address at Glasgow: The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery? (Mar. 26, 1860), in 2 PHILIP S. FONER, THE LIFE AND WRITINGS OF FREDERICK DOUGLASS 467–80 (1950). 2 See FREDERICK DOUGLASS, Life and Times of Frederick Douglass, in FREDERICK DOUGLASS: AUTOBIOGRAPHIES 453, 526–28, 532, 642–46, 661–64 (Henry Louis Gates, Jr. ed., First Library of Am. College Edition 1996) (1994); FREDERICK DOUGLASS, MY BONDAGE AND MY FREEDOM 44–45, 113–15, 248–58 (Johnson Publ’g Co. 1970) (1855); FREDERICK DOUGLASS, NARRATIVE OF THE LIFE OF FREDERICK DOUGLASS 16, 40, 57–58, 60 (David W. Blight ed., 1993) (1845); 1 THE LIFE AND WRITINGS OF FREDERICK DOUGLASS, supra note 1, at 11, 16–18; see also WILLIAM MCFEELY, FREDERICK DOUGLASS 8 (1991) (discussing Douglass’s racial identity).1998] CANONS OF CONSTITUTIONAL LAW 965 Constitution of the United States. In particular, Douglass asked whether the Constitution protected the institution of slavery or whether, on the contrary, the correct reading of the Constitution made it an antislavery document.3 Douglass spoke three years after the Supreme Court’s infamous decision in Dred Scott v. Sandford,4 in which Chief Justice Roger Taney held that American blacks, even free blacks, were not and could not be citizens of the United States.5 Purporting to rely on the original understandings of the persons who framed and ratified the 1787 Constitution, Taney argued that by 1787 a century-long consensus held that blacks “had no rights which the white man was bound to respect and that the negro might justly and lawfully be reduced to slavery for his benefit.”6 Moreover, Taney insisted, Congress lacked the power to bar slavery in the territories of the United States.7 In Taney’s view, the Constitution written by the Framers was clearly pro-slavery.8 Douglass disagreed. He did not dispute Taney’s reading of American history but insisted that the original intentions of the Framers and ratifiers of the Constitution were irrelevant. The Founders were long dead, “but the Constitution is for ages.”9 The meaning of the Constitution was to be found in its text, because “only the text, and not any commentaries or creeds written by those who wished to give the text a meaning apart from its plain reading, was adopted as the Constitution of the United States.”10 The Constitution, Douglass argued, “is no vague, indefinite, floating, 3 See DOUGLASS, Life and Times of Frederick Douglass, supra note 2, at 467. 4 60 U.S. (19 How.) 393 (1857). 5 See id. at 432. 6 Id. at 407. 7 See id. at 451–52. Thus, Taney’s opinion in effect ruled unconstitutional the platform of the new Republican Party. See DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS 202 (1978) (indicating that the Republican Party’s 1856 platform affirmed the “sovereign powers” of Congress over U.S. territories and declared that Congress should exercise those powers to prohibit slavery in the territories). 8 The Harvard Law Review has informed us that its settled practice is always to refer to Justices of the United States Supreme Court by their ceremonial titles. See A UNIFORM SYSTEM OF CITATION 52 (16th ed. 1996). Thus, we have committed a law review faux pas by referring to “Taney” rather than “Chief Justice Taney” in the above paragraph. Nevertheless, in this Commentary we sometimes depart from the Review’s practice for rhetorical reasons. One of our major themes is that constitutional interpretation is much too


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