The intelligible Constitution : the Supreme Court's obligation to maintain the Constitution as something we the people can understand

222 Pages·1995·8.045 MB·English

by  Joseph Goldstein

The Intelligible
Constitution
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The
Intelligible
Constitution
The Supreme Court's Obligation
to Maintain the Constitution
as Something We the People
Can Understand
JOSEPH GOLDSTEIN
NewYork Oxford
OXFORD UNIVERSITY PRESS
1992
Oxford University Press
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Copyright © 1992 by Oxford University Press, Inc.
Published by Oxford University Press, Inc.,
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Oxford is a registered trademark of Oxford University Press
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
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without prior permission of Oxford University Press.
Library of Congress Cataloging-in-Publication Data
Goldstein, Joseph.
The intelligible Constitution :
the Supreme Court's obligation
to maintain the Constitution
as something we the people can understand
/ Joseph Goldstein, p. cm.
Includes bibliographical references and index.
1. United States. Supreme Court.
2. United States—Constitutional law—Interpretation and construction.
3. Judicial opinions—United States.
I. Title.
KF8742G65 1992 347.73'26—dc20 [347.30735] 91-26709
2 4 6 8 9 7 5 31
Printed in the United States of America
on acid-free paper
For Sonja
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ACKNOWLEDGMENTS
With thanks and appreciation I acknowledge the fol-
lowing persons for the many ways—more than they
may realize—in which they contributed to the devel-
opment of this book: Bruce A. Ackerman, Akhil R.
Amar, Valerie Aubry, Aharon Barak, Guido Calabresi,
Anupam Chander, Stephen C. Chin, Gene P. Coakley,
Morris L. Cohen, Stephen A. Conrad, Walter E. Dellinger
III, Jean Doherty, Paul S. Feira, Daniel J. Freed, Sonja
Goldstein, Stephen Goldstein, Alan L. Hirsch, Riyaz A.
Kanji, Alexander Kogan, Andrew Marovitz, Burke Mar-
shall, Helen Mclnnis, Norman C. Oder, Paul Oetken,
Irene Pavitt, Robert S. Peck, H. Jefferson Powell,
Henry Putzel, Jr., Heather Quay, Charles A. Reich, Ber-
nard Schwartz, Fred Shapiro, Michael Solender, Carole
Solis-Cohen, Philip Tegeler, Gayle Van Dole, Ruth G.
Wedgwood, and Joshua Weisman.
I promised myself when I began studying Consti-
tutional Law in 1976, with Small Groups of first-term
students in seminar, that I would not write on the sub-
ject for at least a decade. I also decided to use as teach-
viii Acknowledgements
ing materials the complete opinions in Supreme Court
cases concerned with the meaning of the Constitution
rather than the edited fare of traditional casebooks. To-
gether with my students, I have sought to learn to read,
to understand, and to assess these unpruned opinions
as communications about the Constitution.
What happened in the Small Groups determined
the nature of this book, which first began to take visible
shape during the spring of 1987. At that time four stu-
dents from my 1986 Group (who came to call them-
selves "The Marshall Clan" and whose names are listed
above)—-joined me on a regular basis over sandwiches
in my office to fashion questions and to think about
Chief Justice Marshall's admonition in McCulloch v.
Maryland that "we must never forget, that it is a con-
stitution we are expounding."
My students have always been my teachers. I am
indebted to them for their critical, constructive, and
unrelenting challenges. I acknowledge particularly the
contribution of the members of the 1988- and 1989
Groups who read near-final drafts of the manuscript
and who let me know their thoughts.
Finally, I thank specifically five students, all in-
cluded in the list above, for the special part each played
in our intense elbow-to-elbow relationship while pre-
paring the manuscript for publication. They are Anu-
pam Chander, Paul S. Feira, Riyaz A. Kanji, Norman C.
Oder, and Paul Oetken.
New Haven, Conn. J.G.
June 1991
CONTENTS
A Foreword by Burke Marshall xi
Part I WHY AN INTELLIGIBLE
CONSTITUTION
Chapter 1. Made for an Undefined Future 3
Part II OPINION STUDIES
Chapter 2. With Studied Ambiguity
National League of Cities v. Usery
and Garcia v. San Antonio Metro
Transit Authority 25
Chapter 3. Had Understanding Been the Goal
Cooper v. Aaron 43
Chapter 4. Decisions Unexplained
The Brown v. Board of Education
Cases 57
Chapter 5. Failing to Take Their Own and Each
Other's Opinions Seriously
Regents of the University of
California v. Bakke 81