The Art of the Con (Law)
By Anthony Aycock
Same-sex marriage is the most potent civil rights issue since that of the days of Rosa Parks, Medgar Evers, and Martin Luther King Jr. It is also the most fractious. People on both sides of the divide have wide-ranging, impassioned arguments. On June 26, 2015, the U.S. Supreme Court legally settled those arguments, ruling that marriage is a right that must be extended to everyone in all 50 states, including same-sex couples.
Before this ruling, same-sex marriage was legal in 37 states and the District of Columbia, but it was banned everywhere else. According to Gallup polls, public opinion has shifted significantly over the years, from 27% of Americans approving of same-sex marriage in 1996 to 60% in 2015. And with state governments in open conflict, we needed to hear from the nation’s highest court. The ruling proceeded from a single question: Are bans on same-sex marriage constitutional?
In some ways, the U.S. Constitution is similar to the Bible. Both are centuries-old documents with multiple authors who worked under a system of values we struggle to re-create. Both were assembled by committees—the Constitution by the Founding Fathers, the Bible by the early Christian church. Both influenced, and were influenced by, other texts of their eras. Both give rise to different, sometimes warring, interpretations. And both have passages that can be twisted to condone nearly anything.
Americans look to the Constitution for the answers to all our problems as a nation. It is important, then, to know precisely what it says. Equally important is knowing how to navigate the 200-plus years of analysis and opinion surrounding the document. Here, then, is a quick guide to the best information out there on constitutional issues.
Primary sources are the law—the statutes, court opinions, and regulations that order U.S society. Secondary sources are books, articles, websites, and other documents that discuss or analyze the law.
- Legal Information Institute (law.cornell.edu)—When it comes to constitutional law (con law), primary sources include, of course, the Constitution itself. There are any number of places online where you can read it. I recommend this one, which has both annotated and unannotated versions. Annotations are useful for understanding all the issues, but they can overwhelm you. The single sentence of the 11th Amendment—“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”—has 35 paragraphs of annotations.
- FindLaw (findlaw.com)—The Constitution has little relevance without the case law interpreting it. The best source of U.S. case law online is FindLaw. The site includes Supreme Court decisions that date to 1760, when Thomas Jefferson was still a teenager. The cases are browsable by year and U.S. Reports volume number (see Chapter 1 of my book, The Accidental Law Librarian, for more about this) and are searchable by party name, case title, citation, full text, and docket number. There is also an archive of case summaries from September 2000 to the present. The federal circuit courts get involved in constitutional issues too, and FindLaw has the text of these cases dating to the mid-1990s.
Many Americans have only a scant understanding of the Constitution’s history. They know it was written by the Founding Fathers back in the 1700s after the Revolutionary War. However, the details of its composition, the triumphs and failures of the Founding Fathers, and the realization that this was an incendiary document that created a form of government without parallel on Earth tend to be lost, which is a pity. The history of the Constitution is fascinating, as these sources will confirm.
- The U.S. Constitution (history.com/topics/constitution)—Written in an accessible, engaging style, this site starts with the 1781 Articles of Confederation—a sort of constitutional prototype—and tells the whole story, concluding with these words by Benjamin Franklin: “I agree to this Constitution with all its faults, if they are such, because I think a central government is necessary for us … I doubt too whether any other Convention we can obtain may be able to make a better Constitution.” Franklin knew the Constitution wasn’t perfect, but he also saw it as the ultimate achievement of Enlightenment political philosophy. This site is quite an achievement as well, with lists (e.g., “8 Things You Should Know About the Bill of Rights”), subtopics (e.g., James Madison), and a few videos. (I wonder what Franklin the inventor would think of the ads that pop up on this site every 5 seconds.)
- The Charters of Freedom (archives.gov/exhibits/charters)—Part of the National Archives and Records Administration, this site covers the Declaration of Independence, the Constitution, and, separately, the Bill of Rights, which, with its litany of freedoms (religion and the press, etc.), is perhaps the most talked-about section of our nation’s founding document. To give a flavor of the conflicts that arose and the compromises that went into the Constitution, there is a page devoted to George Mason, a planter from Virginia who fought hard for the Bill of Rights (which was modeled on his 1776 Virginia Declaration of Rights). Also of interest are the short biographies of all the Constitutional Convention delegates, many of whom—Rufus King, Caleb Strong, Jacob Broom, and Nicholas Gilman—are not exactly household names.
- U.S. Constitution Online (usconstitution.net)—One of the web’s oldest properties (it was started in 1995), this site is user-friendly and family-friendly, with an excellent Constitution for Kids section. Its centerpiece is its FAQ, a list of queries sent in by readers, along with answers supplied by the site’s founder, Steve Mount, a Vermont-based journalist (I could have sworn he was a con law professor). The questions Mount has answered—with the patience of Job—over the years include the following: Can tabloids be restricted? Does the 9th Amendment allow legalized gambling? Can a prisoner be sold off as a slave? Was the Constitution originally written in German? Can the people replace the entire government? Is the U.S. government based on the Holy Trinity? The U.S. Constitution Online lists a number of topics, such as due process, marriage, citizenship, religion, and presidential elections. Each topic page goes more in-depth, summarizing the issue, discussing the controversy (if any), and linking to other resources. Caveat: A number of the topics focus on Vermont law, which will help very little if you live in one of the other 49 states.
- ProCon.org (procon.org)—If you are a high school or college instructor who assigns argument papers to your students, this site is for you. It summarizes pro and con stances for dozens of topics, citing reputable sources in support of each. Many of the topics—the death penalty, gun control, immigration, school uniforms, and the inclusion of the words “under God” in the Pledge of Allegiance—invoke constitutional questions. The site has existed for years, but it recently added video clips (often from YouTube) pertaining to each topic. It also has pretty good coverage of the 2016 presidential candidates and their views.
Although the Constitution was meant to be a document for all time, it is still very much a product of its own time. For instance, it incorporates slavery. Why? It was still legal then. Slavery became illegal when the 13th Amendment abolished it in 1865. The Founding Fathers no doubt had pretty good imaginations, but they could not possibly have predicted all the issues (including same-sex marriage) to which constitutional provisions would need to be applied today. The previously mentioned sites are good sources of information on issues old and new.
Blogs and News Sources
Imagine the news coverage in the late 1780s as the Constitutional Convention was in session. What if that convention were taking place now? How many articles, blogs, feeds, posts, pins, winks, vids, pokes, pics, and friends would it generate? I’m sure it generated the 18th-century equivalent of all that activity. The Constitution was big news then, and it continues to make headlines more than 200 years later. Here are a few news sources that specialize in the founding document.
- SCOTUSblog (scotusblog.com)—SCOTUS is the Supreme Court of the U.S., the body charged with interpreting the Constitution and applying its precepts to legal disputes. In this way, it helps shape “the law of the land.” Thousands of cases are appealed to the court every year, and fewer than 5% of them are accepted. This blog lists information about them all: the parties, issues, filings, and oral arguments (transcripts and audio files) as well as the court’s opinion. There are also articles in “plain English” that analyze various cases (“plain English” means no wherefores, insofars, pursuants, aforementioneds, or de minimus).
- The Wall Street Journal ’s Law Blog (blogs.wsj.com/law/category/constitutional-law)—This resource is divided into several sections, including constitutional law. Whereas SCOTUSblog focuses on cases before the Supreme Court, this blog includes stories from all over that touch on constitutional issues. Some are news clips; others are original reporting. For instance, a recent article looks at the views of several legal scholars on Sen. Ted Cruz’s eligibility to be president of the U.S. (Cruz was born in Canada to an American mother, which raises a question of whether he is a “natural born Citizen” as the Constitution requires.)
Education and Research
Does the Constitution fascinate you? Do you want to learn more about it? Are you looking for the best sources to conduct your own research on constitutional topics? Maybe you would like to take a class on constitutional law without going to law school. Then have a look at the following sites.
- Constitutional Law and History Research Guide (guides.ll.georgetown.edu/constitutionallaw)—A library research guide is the best place to start when doing original research, and none is better than this guide from the Georgetown Law Library. It lists and describes key books, journals, websites, and other reference resources to get you started. It also lists sources for in-depth exploration. If you are interested in state constitutions, all of which provide additional protections and rights not found in the U.S. version, this guide links to the NBER/Maryland State Constitutions Project, which provides their current and historical texts.
- Yale University | Free Online Courses (class-central.com/university/yale)—The site offers Ivy League learning with a junior league price tag. There are two self-paced, 24/7 courses on the Constitution, plus a regular semester-length course on constitutional law taught by Yale professor Akhil Reed Amar, author of America’s Constitution: A Biography and a leading constitutional scholar. Amar is a textualist; he looks no further for meaning in the Constitution than the words themselves. Check out his course to see whether you agree with his approach.
- YouTube (youtube.com)—Want to have some fun? Watch “Constitution Rap,” the original Schoolhouse Rock video on how a bill becomes a law, and other clips. Oh, and there are plenty of outstanding lectures by constitutional scholars such as Erwin Chemerinsky (law dean at the University of California–Irvine), Frank Easterbrook (a judge on the U.S. Court of Appeals for the Seventh Circuit), and the aforementioned (sorry, plain English: “I already said it.”) Amar.
Over the years of working in law libraries, I have met many patrons looking for civil rights information. Most of them seem to think that because the Constitution guarantees certain rights, all they have to do to defend those rights is point to them on a list. For them, the Constitution is an 18th-century PowerPoint presentation. They are unprepared for the nuances of 200-plus years of interpretation and appreciation.
The way to get prepared is to read the history of the Constitution. See how it has been applied. Know the questions facing our nation, and think about how a document written centuries ago by a bunch of guys in powdered wigs might answer those questions. These websites will point you, and your patrons, in the right direction.