Introducing: Constitutional Perspectives!
Announcing a new project here at The Evening Constitutional!
As I wrote shortly after last November's election, one of my ambitions for this site is to create a library of materials explaining American constitutional law, from the ground up. I am hereby announcing the start of that project, which I will call Constitutional Perspectives.
This name is meant to capture a few things. First, that this is my perspective on constitutional law. Not that I won't be discussing the different sides of various controverted questions, but I am not going to aspire to any kind of overall neutrality. My goal is to explain the Constitution as best I can, according to my own understanding of it.
Second, it's meant to capture the fractal quality of the project. What do I mean by this? The defining qualities of fractals, the geometric entities, is self-similarity. Picture, say, the Sierpinski gasket. If you zoom in on any smaller triangle, you find that it's identical to the larger structure. That pattern just repeats in miniature, all the way down. The same is true for, say, the Mandelbrot set: if you zoom in far enough, you find tiny little Mandelbrot sets hiding in the picture, and if you zoom in far enough on those you find more of them, and so on.
Law is like this. Every answer spawns new questions, at a greater level of granularity. Those smaller questions are every bit as complex and thorny as the bigger ones, and the arguments they generate can be every bit as heated. You can always go deeper; there is no such thing as "knowing all the law" in perfect detail.
But there's a curious corollary, especially I think as to constitutional law. The Sierpinski gasket, and many other similar fractals, have the strange property that it has finite surface area but an infinitely long perimeter. The proof of the first part is simple: you can draw a square around the gasket, the square has finite area, and the gasket necessarily has an area no greater than that. Similarly, although it is not possible to know the law in perfect detail, it is possible to have a grasp of the entire field of constitutional law if you're only worried about the broad contours.
Inspired by this quality of "fractal complexity," Constitutional Perspectives will be organized into levels. Each level will aspire to provide a comprehensive picture of the Constitution; the higher levels will provide that picture in greater detail. Level One, which begins today with the first lesson, "What Is The Constitution?" will provide a basic overview of the essentials of the constitutional system. The premise of Level One is that it should be accessible to someone who has no prior knowledge whatsoever of American constitutional law or history.
You can think of this as a "high school civics" perspective, although of course it will be distinctively "high school civics as seen by a constitutional theorist." Partly owing to that distinctive flavor, although as I say you do not need any prior knowledge for Level One, I do not intend it to be trivial for the more advanced reader, either. It is useful, even when doing constitutional law at an advanced level, to bear these essential aspects of the basic constitutional structure in mind. (No, the use of the word "structure" there is not a coincidence.)
Level Two, then, will begin to explore the world of decisional constitutional law. (Think court rulings, though also key decisions faced by other constitutional actors.) Again the goal is for the Level to be comprehensive, to give a basic sketch of the whole field. This means a focus on the Big Questions, the decisions and controversies that have fleshed out the basic framework of how we live under the Constitution. First and foremost among these will be the question of implied power and the (related) problem of the nature of the Union. Each of these warrants somewhat extended consideration, as they inform essentially every aspect of constitutional law. Level Two will also address the Big Questions about presidential and judicial power, as well as individual rights and the law of equality. You can think of this as something like an introductory law school course, and indeed if I were ever to teach such a course I imagine I would organize it something like this.
Finally, Level Three will explore specific topics in greater detail. Comprehensiveness at this level is a more open-ended aspiration, as there are an awful lot of topics to explore. I imagine Level Three as consisting as a number of "modules," pitched at something like the level of a law school seminar (though with less assigned reading!). This is also where explicit discussion of constitutional theory will come into play; I already have a sequence in mind on legal realism and how it shaped the "originalism versus living constitutionalism" debates of the late twentieth century.
Finally, the name Constitutional Perspectives is meant in homage to my grandfather, and in particular to his book Perspectives in Constitutional Law. That book, one of his more obscure, is structured as a kind of slim treatise, a casebook without the cases, and I have something similar in mind for this project. Of course in the modern age I can simply link to the cases themselves where relevant, but I aspire to discuss everything in a way that should be comprehensible even for those who do not go and read the full opinions. The point, indeed, is not to teach my readers about the cases, but about the Constitution; I am as interested in the story of the great cases as I am in the text of the decisions.
I plan to write at least one Lesson each week, and will aspire for two most weeks. As I have mentioned before, I plan to make Levels Two and Three available only for paying subscribers; I gotta pay the bills somehow, and I expect that this project will require a significant amount of time and effort. Level One, however, will be freely available for all.
I hope you enjoy!
