Hollywood and the Constitution

In a fascinating article, “Oil and Water Do Not Mix: Constitutional Law and American Popular Culture,” recently posted as part of the Marquette Legal Studies Paper Series, Professor David Papke argues that American movies and television series have embarrassingly failed to capture what he refers to as “meaningful constitutional deliberation and discussion.” Focusing on the movies First Monday in October and The Pelican Brief and the television series The Court and First Monday, Papke demonstrates how entertainment industry conventions make it impossible to seriously examine the process of constitutional deliberation in popular media.

While I agree with Professor Papke that cinematic efforts involving the Supreme Court have resulted in dismal failures, there have been Hollywood movies that have addressed “constitutional” questions with some insight and sophistication. The key, it seems, is to focus on the constitutional issue itself rather than on the court that decides it.

I have in the past incorporated a few films into my American Constitutional History class (though not this past semester), and I would someday like to offer a seminar that focuses on the treatment of constitutional issues in film.  An incomplete list of such films and their subject matter is set out below:

The Birth of a Nation (1915) – the meaning of the Civil War for American federalism

Gabriel Over the White House (1933) – the limits of presidential power in a time of crisis

Judge Priest (1934) – racial accommodation and the Constitution in the Jim Crow era

Mr. Smith Goes to Washington (1939) – the limitations of the American system of checks and balances

Meet John Doe (1941) – the problem of manipulation of public opinion in mass society

Inherit the Wind (1960) – the meaning of freedom of religion in a democracy

Dirty Harry (1971) – the legitimacy of the Warren Court’s expansion of the rights of criminal defendants

Walking Tall (1973) – the legitimacy of the Warren Court’s contraction of local and regional autonomy

Absence of Malice (1981) – the liability of the press for injuries inflicted by inaccurate reporting

Poletown Lives! (1983) – the limits of the eminent domain power; technically a documentary, but actually structured like a commercial film

Separate But Equal (1991) – the legitimacy of racial distinctions under the constitution (a partially fictionalized account of the case of Briggs v. Elliot, one of the cases decided with Brown v. Board of Education)

The only one of the above films that devotes a significant amount of time to the United States Supreme Court is the final one, Separate But Equal, and the depiction of the Court is the weakest part of the movie. The justices come off as narrowly drawn stereotypes, in contrast to the more fully developed parties to the case and their lawyers (although Sidney Poitier as Thurgood Marshall takes a little getting used to).

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Jury Duty

Next week I’m going to report for jury duty. Reporting for jury duty strikes me as a great opportunity to observe the legal process in action.

Has anyone reading this blog ever been selected as a juror? What was your experience — and did your view of jury trials change after being on a jury?

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Libertarians and Liberals

It is a peculiar characteristic unique to our country that Americans talk about political issues in constitutional terms, thereby turning every policy debate into an argument over basic principles.  That was my thought when I read about Senate candidate Rand Paul and his “Constitutionalist” view that the federal government has no right to dictate the behavior of private enterprises.  Mr. Paul came under fire last week for suggesting that the Civil Rights Act of 1964 went too far when it prohibited discrimination by private businesses.  You can read more here (astute students in my Constitutional Law class will observe that Mr. Paul inspired one of the questions on my final exam this year).

Paul objects to federal policies regulating business due to his reading of the U.S. Constitution.  His political philosophy might best be characterized as extreme libertarianism.  Following the objectivist principles of Ayn Rand, he argues that the public should be left to their own devices and that greater social benefits will accrue naturally over time from the enlightened (and rational) self-interest of individuals.  Ironically, Paul’s embrace of self-interest as a moral good in itself is directly at odds with the view of the Framers of the Constitution.  The people who designed our constitutional system spent much time criticizing the biases, prejudices, and self-interested motivations of the general public.  The system of government that they created was intended to ameliorate the very aspects of human nature that objectivists like Rand Paul celebrate.

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