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March 22, 2006


Mark JS

Professor Brooks,

I am not certain I share your concern for the state of constitutional scholarship. A number of fine books do address our constitutional system and judicial review -- and those books are being read (with whatever wisdom or folly they contain). For example, Professor Akhil Reed Amar's "America's Constitution : A Biography" is written for the general public, at least that portion of the general public willing to read through its more than 600 pages (including the often very interesting notes). Professor Cass Sunstein's most recent book, "Radicals in Robes," provides an excellent framework for intelligent debate among ordinary folks about the role of judges and judicial review. Mark Levin's book "Men In Black," Catherine Crier's book "Contempt," Professor Tushnet's book "A Court Divided," Justice Scalia's "A Matter of Interpretation" and Justice Breyer's "Active Liberty" are all books that folks have seen me reading and that have started conversations in airports, bars and diners. People are reading and discussing these books in small book groups -- and the recent Supreme Court nominations (and the Kelo decision) got people thinking about the courts and the Constitution more and more in my observation. They are reading about the early days of the country ("Founding Brothers," "American Sphinx" and "His Excellency" by Joseph Ellis and "John Adams" and "1776" by David McCullough," just to identify a few I have read, discussed or seen folks reading in the oddest places), they just may not be getting the message we want them to get.

I don't think we suffer from a dearth of popular (and very good) writing about the law, executive power and the Constitution -- or about the history of the Constitution and the country (remember the popularity of books on the Civil War). What we suffer from is a surfeit of writing about the law and the Constitution that addresses the practical realities of the world and recognizes that what some or even most academic scholars view as the "right" legal answer, might not be for most people.

Much of what the average guy or gal in the bowling alleys, pool halls and bars knows about the Constitution (and it is a surprising amount -- yeah, I hang out in those places) comes from debates over affirmative action, Kelo, criminal justice and presidential power. The folks I listen to actually understand many of the issues, not in a technical Constitutional way but in a practical, common sense way. They didn't like the Clinton impeachment, thought the Constitution didn't allow it. They accept or don't accept affirmative action, but they are troubled by "equal protection" not being dead equal treatment. They saw Kelo as justices allowing the rich to displace the poor in a corrupt legal system. And they see the whole NSA debate as partisan and silly. They see the justices and lawyers as increasingly technical and divorced from their reality, as elitist lawyers operating in a largely reality free theory world -- a view that has far too much basis in reality.

Think about it for a minute. What does critical legal studies tell them about Constitutional law? To ignore it that it is all about power? What about economic analysis in the law? The average person -- indeed most people see the law as a set of rules, more or less rigid, that define what conduct is and is not permissible. All too often, legal scholars and lawyers see the law as a series of tools to reach desired ends, instead of examining the law as a system of rules. In that context, perhaps the responsibility of legal scholars is not to try to popularize legal scholarship, but rather to examine it -- to examine whether it has merely become another branch of political theory or political science, with all of the dusty axioms, theory building and pseudo empirical trappings.

Just a thought.

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