The Constitution Follows the Flag

by Cliopatria

We're just over a century removed from the Insular Cases, the infamous 5-4 Supreme Court decisions holding that the Bill of Rights did not wholly apply to territories acquired from Spain after the Spanish-American War. Yesterday's trio of Supreme Court decisions exhibited, of course, a much different interpretation of the Constitution. For a particularly compelling commentary, take a look at a Slatedialogue between Clinton's solictor general, Walter Dellinger, and Dahlia Lithwick, a Slate editor who, for my money, is the most interesting Supreme Court commentator now writing.

In the Padilla case, the Court punted on the main question, which, as Dana Mulhauser points out in this week's The New Republic, has become a characteristic of the Rehnquist Court. The article's most interesting item:"In 1941 the [Supreme] Court granted certiorari in 17.5 percent of all cases, now it does so in about 1 percent." Lower-court nominations, therefore, are increasingly important.

For the discipline of history, yesterday's decisions should serve as a reminder of the importance of constitutional history to the daily lives of our students. Moreover, because the field relies primarily on published material (decisions, oral arguments, briefs), constitutional historians don't have the problem in writing about the recent past of political or diplomatic historians, who rely on government documents that often take decades to appear. Yet the field is virtually non-existent at most colleges, and new jobs in the topic appear with even less frequency. As I have said before, I fear that too many departments have embraced the personnel philosophy of my colleague Bonnie Anderson, whose website proclaims her belief in combining scholarship with"activism" for"assorted radical causes"--but who wrote the Brooklyn president condemning the History Department for providing any courses"focused on figures in power," offerings she deemed suitable only for"young white males." As they might say at Fox, that's a"fair and balanced" approach to the discipline.

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Jonathan Dresner - 7/1/2004

I had a fantastic time in the one constitutional history class I taught, the day that I asked my students to write a constitution. (and I got an article out of it, eventually, too: http://hnn.us/articles/1726.html). It doesn't take much time, but it does bring home the difficulty of constructing a viable system.

Perhaps in a US course you could simulate the next constitutional convention -- revising our constitution -- which I seem to recall is only a few states' approval away from happening. What could you change? What would you leave the same?

Robert KC Johnson - 6/30/2004

I agree--it's a problem. I teach a constitutional history class at BC, and students begin the class assuming it's going to be entirely dry, text-based. I have to show that studying constitutional matters is interesting, because, in effect, it also intersects with virtually every pressing social question of the 20th century.

Oscar Chamberlain - 6/29/2004

Like you, I consider the lack of interest in constitutional history unfortunate (particularly since I am one). Part of the problem may well be the "dead white male" thing.

Another part, however, and I'm not sure where it comes from, is that students have almost nothing but the most cursory contact with constitutions in K-12.

As one very good high school teacher once told me, students like to read constitutions about as much as they like to read the fine print in a credit card agreement. The language is unfamiliar and the logic by which different parts of a constitution may buttress, or limit, other parts is also fairly foreign.

There are ways to get around this resistance. The other day, another high school teacher told me that he began a discussion of rights by asking if the the school administration had the right to search their lockers. (You can tell it was a middle class school, the kids thought that the administration did not have that right.) Anyway, he used the truth of the matter to get them thinking about what the constitution does and does not protect.

But that's time consuming in a history course. Something gets lost, and most teachers prefer to focus elsewhere.