Virtual Book Club: Constitutional Historians and Constitutional Theorists

Michael O’Hear is to be applauded for his concise summary of Professor Tribe’s argument.  Thanks to Michael, the rest of us can dispense with the need to explain to the reader the contours of Professor Tribe’s thesis.

As I read Tribe’s book, I was reminded of a story told to me by a friend who was in William Nelson’s Constitutional History seminar at Yale in the mid-1970’s.  Nelson apparently was arguing at that time that the ratification of the Constitution of 1789 actually made very little difference, and had the Articles of Confederation remained in effect, that document would have been interpreted to mean pretty much the same as the Constitution that replaced it came to mean.

Of course, I wasn’t in the class, but I take it that Nelson believed that the constitutional norms that emerged in post-1789 America would have developed with or without any specific constitutional text, and whatever written constitution there was would have been interpreted so that it would embrace those values.  In the alternate timeline it might have been necessary to amend the constitution a bit more frequently than actually occurred, but I suspect that this point is probably correct.

To me, Tribe’s argument that constitutional norms exist independent of the text of the Constitution seems only another variant on this argument.

In fact, the manner in which he presents the argument illustrates a fundamental difference between constitutional historians and constitutional scholars. Constitutional theorists and constitutional lawyers operate within a paradigm of constitutional argument that assumes that the precise nature of arguments matter and that judicial decisions can be influenced by the logic of constitutional analysis.

Constitutional historians, on the other hand, stand outside the paradigm and simply try to understand and to explain what is going on.  Historians have long realized that the paradigm is quite self-serving — it creates a role for the constitutional advocate and the constitutional theorist — and that its fundamental premises ultimately fail to jibe with the reality of judicial decision-making.  Historically, judges have been much more likely to reach results in constitutional cases through the felt imperatives of “constitutional” values than by being persuaded by logically constructed arguments or imaginative textual interpretations.

Every now and then it dawns on a constitutional theorist that the primary paradigm doesn’t really make any sense, and he reports it to his colleagues as a revelation.  Which it isn’t, at least for those who have studied history.  Constitutional historians make this point over and over.  Richard Beeman’s new book on the Constitutional Convention wonderfully illustrates the historical contingency of everything associated with the Constitution of 1789, whether it be the text itself or the ideas that were passing through the brains of various Founders.  The point is not that constitutional norms are meaningless or purely fungible.  Rather, constitutional meaning is an organic concept that evolves over time and which is subject to a variety of restraints.  For some reason, constitutional scholars and constitutional lawyers never seem to catch on.

The problem, of course, is that constitutional advocates are required by the system in which they operate  to argue in terms drawn from inside the paradigm.  Even if you believe that judges decide cases on the basis of culture and common norms and that history rather than logic dictates the resolution of most constitutional disputes, you cannot say that to the judge.  The lawyer has to at least go through the motions of a traditional text-based constitutional argument.  It is as though we tell ourselves one story in private but require that a different one be told in public.

As law professors, we have to train our students in the art of making acceptable constitutional arguments.  But we should be honest and tell them that the content of constitutional arguments and constitutional truths are two entirely different matters.

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Defining the Steroids Era

On Tuesday, February 24, MLBPA Executive Director Donald Fehr was quoted in the New York Daily News and the Sports Business Daily as saying that “baseball’s steroid problem has been fixed.”  I’m not sure how much credibility Mr. Fehr actually has on this issue, but we can at least hope that he is generally correct.  The problem remains as to what to do about the corrupting effects of the use of performance enhancing drugs (“PEDs”) from the late 1980’s until the mid-2000’s.

I don’t believe that any serious observer is recommending that the presence of offending players be somehow expunged from the score sheets of games played in that era.  This would be neither possible nor desirable.  It is also completely without precedent.  Although it has been frequently reported over the years that the midget Eddie Gaedel who played one game for the St. Louis Browns in 1951 was retroactively banned from baseball and his one at bat (a walk) stricken from the baseball records, apparently no such action was taken (although his contract was voided, and he was banned from playing in future games).

There is, however, considerable sentiment for altering the “record book” so that the names of steroid-using players like Bonds, McGwire, Sosa, and Clemens could be expunged from the lists of exceptional performances, or, if not expunged, at least marked with an asterisk.  The agencies that run the world of track and field have been doing this for a very long time.  New world records have bet set, and then unset, once the presence of steroids was detected.

The problem with this approach — the elimination of records set by players who are known to have used steroids — is that while we know the names of some steroid users, we clearly do not know the names of all players whose performances received a significant boost for PEDs.  We probably will never know all of the names.  To merely delete the names of known users would end up rewarding those steroid users who were clever enough to avoid detection.

My suggestion is that we bracket off an entire era including the years 1993-2003 and either refuse to recognize or place an asterisk by any record that was compiled in whole or in part during this period.  While it appears that steroids and other PEDs had their greatest effect in regard to power hitting, I believe that all records were affected.  While this is unfair to record-setting players who are widely believed to have avoided such substances (like Greg Maddux and Ken Griffey, Jr.), they are the unfortunate victims of the illegal behavior of their contemporaries.  By record setting, I mean performances that place players among the all-time leaders in standard categories.

Such an approach is not entirely without precedent.  I was born in 1952 and throughout my youth and early adulthood, it was widely accepted, though perhaps not officially sanctioned, that the only legitimate major league records were those that had been set in the twentieth century.  Consequently, the record for most wins in a season was Jack Chesbro’s 41, compiled in 1904, not Hoss Radbourne’s 60 (or 59) from 1884, or even  Bill Hutchison’s 44 in 1891.  Similarly, the record for the highest single season batting average was Rogers Hornsby’s .424 from 1925, not Hugh Duffy’s .438 (or .439) from 1894.

Career records did not seem disabled in quite the same way.  Cy Young’s 510 wins was recognized as the career record, as was Sam Thompson’s record  of 309 career triples, even though both men had played a portion of their careers before 1900.  (Thompson played only a single season before 1900, but Young played ten during which he won 267 games.)  It was also never clear to me if for these purposes the twentieth century began in 1900 or 1901.  It made sense that 1901 would be the first “legitimate” year since everyone at the time thought that the twentieth century began on January 1, 1901, plus 1901 was the year that the American League proclaimed itself a major league and established the two major league set-up that continues to the present.  However, because no record was set in 1900, the issue was moot.

Under my proposal, Barry Bonds would still be recognized as having hit 73 home runs in 2001 and 762 home runs in his career, but the single season record for home runs would be Roger Maris’s 61 in 1961.  (The 60+ home run years of McGwire and Sosa would also be eliminated because they occurred between 1993 and 2003.)  The career home run record would revert to Hank Aaron’s 755, as I would extend the bracketing to career records as well.

Obviously, there is a difference between bracketing off 1889-1899 (or 1876-1899, depending on when one starts the history of major league baseball) and doing the same to 1993-2003 since there was no major league baseball before the nineteenth century.  But the 93-03 period is properly thought of as the lost years of major league baseball.  I know that I try to think about that period as little as possible.

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The “film” that I would like to highlight is actually an episode of a long-forgotten television series from the 1960’s.  Laredo, which aired on NBC from 1965 to 1967, was a western that focused on the adventures of a group of Texas Rangers based in the south Texas town of Laredo.  Laredo was written as a serious western, but one that clearly had a sense of humor about its subject.

The final episode of the series, entitled “Split the Difference,” was structured around the probate of the will of a notorious outlaw named Jake Ringo.  The episode (which was not filmed with the idea that it would be the final episode; it just turned out that way) focuses on the phenomenon of the dead using will provisions to control the lives of the living.  In that sense, “Split the Difference” follows squarely in the tradition of Ambrose Bierce’s “The Famous Gilson Bequest,” which may well have inspired the episode.  It also plays around with one of the cardinal principles of westerns — that once the bad guys make it across the border the good guy law enforcement officers have to stop chasing them.

I remember watching the episode live on April 7, 1967, but my memory has been greatly refreshed by what I found on the Internet.

Following the death of Jake Ringo letters are sent to seven individuals by lawyer E. J. Morse informing them that they have been named as beneficiaries under Ringo’s will and are entitled to share in Ringo’s estate which consists of $75,000 in cash.  The reading of the will is to be conducted shortly in the Halfway Mansion in the town of Mexas, located on the Texas-Mexico border.  Not only in Mexas exactly on the border but the mansion straddles the border line so that part of the structure is in Texas and part in Mexico.  A white floor stripe, marked Texas on one side and Mexico on the other, actually runs throughout the house advising occupants of the country in which they are standing at any given moment.  (Given the Rio Grande River, this seems impossible, but few 1960’s television shows were sticklers for such details.)

Recipients of the letter included the judge who convicted Ringo and sentenced him to death, the hangman who presided over his execution, a renegade Indian woman named Linda Little Trees, three notorious outlaws: Gypsy John Fuentes, Belle Bronson, and Smiley Hogg, and Texas Ranger Captain Richard Parmalee, the leader of the Rangers in Laredo and the moral center of the show.  Parmalee was also the man that apprehended Ringo and made possible his conviction and execution.  (Parmalee was played by actor Philip Carey who went on to a long career (1979-2007) as the Texas patriarch Asa Buchanan on the ABC soap opera One Life to Live.)

Over the objections of several of his fellow Rangers, Parmalee decides to go to Mexas so that he can recover the entire $75,000 which he is certain is stolen and which can be returned it to the banks from which it was taken.  Moreover, two of the letter recipients, Little Trees and Hogg, are wanted for murder in Texas, and this would provide him with an opportunity to capture them and bring them back for trial.  For back-up Parmalee agrees to take two of the Rangers with him.

Unfortunately, the judge and the hangman are not able to attend the reading of the will, having been murdered by Little Trees and her henchman, Blue Dog, in the episode’s opening scene.  However, the other four devisees and Parmalee all make their way to Mexas. 

When the Rangers arrive at the house, they find that the other participants have strategically placed themselves inside the Halfway Mansion.  Little Trees and Hogg, wanted for murder in Texas, stay in the portion of the building in Mexico, while Belle and Gypsy, both wanted for murder in Mexico, have taken up residence in the Texas part of the house.   (We also learned that the beautiful Belle Bronson and the Captain once had a thing for each other, but that he broke off the relationship because she wouldn’t give up her outlaw ways.)

Once the group is assembled, the lawyer Morse informs them that to qualify for their inheritance, each of the devisees must spend the night in the Halfway Mansion.   Those who are still alive the following morning are to split the $75,000 evenly.  It becomes apparent that Ringo’s will was drafted in such a way as to encourage his enemies on both sides of the law to kill each other off.

The Rangers retire to an upstairs bedroom for the evening, but loud noises bring them back downstairs where they find, distressingly for this viewer, that the lawyer Morse has been murdered.  When Smiley Hogg bursts into the room firing a gun that, unbeknownst to him, is loaded with blanks, he is gunned down by the Rangers, reducing the number of living devisees to four (and the number of lawyers to zero).

Suddenly, the gas lights go off, another shot is fired, and when the lights come back on Belle is lying on the floor, fatally wounded.  At this point, the momentarily grieving Parmalee (and presumably most of the western-loving 1967 audience) realizes that something is wrong with the picture.  Just as the Rangers figure out that Ringo is probably still alive, the outlaw appears in the room with a shotgun pointed at the survivors.  It also becomes apparent that the Indian miscreant Linda Little Trees is in cahoots with Ringo and that the two have planned this event to rid themselves of their enemies.  (The hangman and possibly the judge were presumably bribed to let Ringo go, only to be later murdered by their accomplices.)

Little Trees and Blue Dog escort the Rangers back upstairs at gunpoint while Ringo shoots Gypsy in the parlor on the first floor.  When the Rangers reach their room they find three nooses hanging from the ceiling, installed by Ringo so that they can experience the fate to which he had been sentenced. 

In yet another plot twist, it turns out that Ringo only pretended to shoot Gypsy and the two of them climb the stairs with the intention of double crossing Little Trees and killing both Indians and all three Rangers.  However, at the last minute Little Trees herself realizes that she is about to be betrayed by Ringo, so she turns around and shoots Gypsy before he can fire his gun.  She then grabs the $75,000 and takes off.  No longer held at gunpoint, the Rangers are able to subdue both Blue Dog and Ringo and later catch up with Little Trees.  Because they are able to capture her on the Texas side of the house, they can now arrest her for murder.

Little Trees, played by Will and Grace actress Shelly Morrison—she was the Salvadorian maid that married Jack so that she would not be deported–was returned to prison along with Blue Dog.  Ringo was presumably hanged.  The Rangers went back to Laredo for further adventures, only to find out that while they had evaded Ringo’s efforts to kill them they were soon to be done in by their network’s own programming ax.

Not great literature but a clever (by television standards at least) play on the way that western writers used jurisdictional and inheritance issues as plot devices.

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