Howard J. Vogel, Professor of Law
Hamline University School of Law
hvogel@gw.hamline.edu

©2002 Howard J. Vogel. All Rights Reserved.

[This Study Guide has been prepared by the author for the private use of students enrolled in the author's course on Constitutional Law I, Sections 1 & 3 offered during Spring Semester 2002 at Hamline University School of Law, and is intended soley for such use. Any further duplication, distribution, or use is prohibited.]

Table of Contents

Preface

This set of materials is gathered from my on-going experiment to teach constitutional law in a way that encourages students to become conscious of and reflect upon the way in which their activity as lawyers participates in the creation of legal meaning in the American republic, and the way that meaning may serve or undermine the public interest in social healing as a means of conflict resolution. They are offered here to invite conversation about how both legal education and the practice of law may be undertaken with a deeper appreciation for the spiritual-political dimensions of the legal culture in the hope of opening up imaginative ways for exploring how that culture and its inhabitants might better serve the public interest.

Many observers have noted the prominent role that law and lawyers play in American society. Thus, for example, the 19th Century student of American public life, Alexis deToqueville, noted in his famous study of the 1830s that: "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (Alexis de Tocqueville, Democracy in America, vol. I, at 288 (P. Bradley, ed., Vintage 1948)(originally published in two volumes 1835 & 1840).

Why is this true? How does it happen? Where some investigators seeking answers to this question might look at the subject matter of law, drawn as it is from the warp and woof of the fabric of our of common life, I prefer to look deep within the structure and character of our work as lawyers in search of an explanation. My claim is a simple one: if we think of the study and practice of law in the United States as an activity - as a practice -- rather than simply as a body of knowledge about the rules of law, we can see why lawyers play a prominent role in social change. When this activity is laid bare it reveals that lawyers are at the very heart of the cultural constitution and reconstitution of who we are as a people. To see this, we need to pay very close attention to the structure and character of legal argument, with a view to discerning its meaning and value. We need, in short, to avoid the habits of many first year students who, quickly in their studies, and often permanently as practicing lawyers, take on an unreflective obsession with the rules that make up the black letter law. The black letter is important, but it is far from the full definition of the law, and it sheds very little light on what it is that lawyers do in their practice and why this has given lawyers such a large role in social change throughout American history. Once having delved deeply into the structure and character of our activity as lawyers, we can begin to seriously entertain thinking of our work as a sacred calling - to be advocates for social change, in pursuit of the "more perfect union" of which the preamble to the American Constitution speaks. We are, in sum, called to attend to, and participate in, what Lincoln called the "birth of a new nation" which is always taking place. This is a vision of the meaning and value of the practice of law which is worthy of the commitment of our lives.

The structure and character that I am alluding to exists in all of the substantive areas of American law, as a variation on a common theme. It is intimately related to the lawyer's vocation. It can be powerfully illustrated through the example of American Constitutional Law, an activity that is especially related to social change in American history. The understanding I have gained about this phenomenon shapes all of what I do today as a law teacher and adviser to lawyers engaged in practice. After 25 years of teaching, I wrote down my reflections on these matters (Parts I & II, below) in an effort to provide my students with a clear statement, at the outset of my course in constitutional law, of the particular understanding of the meaning and value of law, and its application to American Constitutional Law, that I bring to my work with students in the classroom. I offer them to you in the following spirit: you need not adopt my particular understanding of the meaning and value of law as your own for you to succeed in the practice of law. Rather, I offer these reflections in the hope that they may provide grist for your own reflection on the meaning and value of your work and how that work relates to efforts to secure social change in service of the common good.

When you have read what follows, ask how these reflections apply to the areas of legal practice which may be far removed from American Constitutional Law. I think you will find surprising parallels. Then see what your response is to the question of vocational identity - What are claiming about yourself when you tell someone else that you are a lawyer? Your answer to this question is a good place for you to begin your own reflections on the meaning of your work in relation to social change and the quest for a "more perfect union" in these United States.

The reflections themselves are organized in three parts. Part I, entitled Constitutional Argument & the Creation of Meaning: Reflections on the Study and Practice of American Constitutional Law, lays out a description of the practice of law as an activity involving applied rhetoric which is the core set of skills that lawyers use in their performance of legal analysis and argument. It also proposes a metaphor for understanding who and what lawyers are when it suggests that lawyers are storytellers. These understandings are illustrated through application to American Constitutional Law. Part II, The Role of Narrative: Judicial Decisionmaking & the American Story, builds on the metaphor of storytelling offered in part I through a description of the distinctive characteristics of narrative that are part and parcel of what lawyers and judges do when they engage in argument and adjudication.

Following my reflections on the activity and vocation of lawyers, you will find a set of study aids for constitutional law I. Parts III & IV are designed for the purpose of aiding you in developing an approach for synthesizing the doctrinal principles of the cases we shall read in constitutional law I. To this end, part III offers a view of the underlying structure that is present in constitutional argument. This structure shows how constitutional issues are set up and addressed by lawyers in the performance of constitutional argument. Part IV offers a brief outline that may be used as a format for thematic synthesis of the doctrinal principles that emerge from reading the cases decided by the United States Supreme Court. Part V, contains Exercises, Essay Questions and Case Study Problems in Legal Imagination. These are based on the materials in Parts I-IV, the materials in the casebook chosen for this course in constitutional law, Paul Brest, Sanford Levinson, J. M. Balkin & Akhil Reed Amar, Processes of Constitutional Decisionmaking: Cases and Materials (4th ed. Aspen L. & Bus. 2000), and five items on reserve in the Law Library: individual law review articles by Chief Justice Rehnquist and Justice Thurgood Marshall, and three essays contained in Peter Gabel's recent collection entitled The Bank Teller and Other Essays on the Politics of Meaning (Acada Books, 2000). These exercises are designed to draw students into activity that can serve to give them an experiential understanding of the way in which their work as lawyers participate in the creation of meaning, and the consequences of that activity for the possibilities of social healing.

Howard J. Vogel
Saint Paul, Minnesota
January 2002

Part I

Constitutional Argument & the Creation of Meaning:
Reflections on the Study and Practice of American Constitutional Law

Introduction: An Invitation to a Conversation

All teachers necessarily bring a particular understanding of the meaning and value of the subjects they teach to their work with students in the classroom. In this respect, teachers of constitutional law are no different than any other teachers. Students of constitutional law need not adopt the teacher's particular understanding of the meaning and value of constitutional law as their own for them to succeed in the course. Nonetheless, some knowledge of the teacher's standpoint can be helpful to students as they begin to develop their own understanding of constitutional law in dialogue with the teacher and other members of the course. It is for that purpose that I have set out the reflections below. Take them as "something to grow against" in developing your own understanding and practice of constitutional argument.
To enter the study and practice of constitutional argument is to accept an invitation to enter a conversation about the creation of social and political meaning in the American Republic. This is a conversation which has a history. This conversation is distinctly "American" but it occurs within a larger global context which has become increasingly important with the turn of the 21st Century. The conversation has ancient roots in the Western Tradition, but it began in earnest in the 18th Century. It continues to reflect many of the ideas of that century, as well as the particular cultural history of the United States that has unfolded in the 200 odd years since it first began. The conversation reflects American history at the same time that it shapes that history. Whether this conversation, often so self-consciously focused on "American" experience with little concern for the experience of the wider world, can continue to offer a meaningful vision of a "more perfect union" through a government "of the people, by the people, and for the people" in an effort to secure peace, security and justice in the globalized world of the 21st Century will depend in part on what we bring forth in our continuation of that conversation today and in the years ahead.

The stakes involved in this conversation, and our active participation in it, directly and deeply affect the character of our life together because the constitutional conversation is a constitutive conversation. To say that it is constitutive is to point to the way the conversation constitutes - or creates - something, and how it does that. The constitutional conversation is constitutive in three important ways: (1) it constitutes a culture of constitutional argument among the lawyers engaged in the conversation which is marked by a vocabulary, grammar and set of conventions in its practice which shape that conversation and what it might become; (2) the practice of conversation within the particular culture of constitutional argument is a powerful force in constituting the meaning of justice and the character of our life together within the larger society through the embodiment of values in the rules of law that proceed from the conversation; and (3) in our practice of constitutional argument we necessarily take up a place in relation to that argument in both of the constitutive facets listed above. In the process we create and embrace a vocational identity for ourselves as constitutional lawyers. In our practice we answer the question, "What does it mean to tell someone else that you are a lawyer?" The very work we do, the way in which we do it, and the reasons we give for doing it, together constitute the answer we give to the question of who we are and what the meaning of our lives is in our work as lawyers.

I will return to these themes at greater length below. For the present, suffice it to say that in sum, we, as lawyers, are both constituted by the culture of argument that is distinctive in the constitutional conversation, at the same time that we participate in the constitution of that culture and the way it has an impact on the larger community. At bottom, then, to say that the practice of constitutional argument is constitutive in the way described here, is to say that the practice of constitutional argument is undertaken in service of maintaining the conversation. Given the animating purpose of this conversation "to form a more perfect union," we shall see that constitutional argument at bottom is deeply relational. It both reflects in its own way that we are part of one another within the conversation and expresses who together we are and what that means. To take up the study of constitutional argument, is thus to accept an invitation to join in the constitutional conversation about the meaning of the American constitutional vision and its possibilities for our shared future. In accepting this invitation we enter a constitutional conversation that goes far beyond the technical legal discourse of judges and lawyers. This conversation also includes citizens and public officials and ultimately goes to the heart of the character and content of justice in the American republic.

Realism in Law

To say that constitutional argument is relational is to call for a "deeper realism" about law than that which is usually associated with the American Legal Realists of the 20th Century whose work has shaped so much of legal education. Taking a cue from the Realists, to be "realistic" in our thinking about law and what lawyers do , Douglas Sturm develops an understanding of law and politics that embraces a relational world view which emerges from his vision of experience in the community of life:

In times such as these, if we are cognizant - and honest - about the circumstances that make up our common life, we must admit to the thick interdependency of our lives. We cannot be what we are, we cannot do what we do, we cannot accomplish what we accomplish apart from one another. Perhaps more than we can ever fully discern, our lives are but expressions, albeit creative expressions, of a communal matrix that sustains us, inspires us, and constitutes the origin of our dreams and yearnings, our obligations and our rights. We are members of each other, We belong together. That is the source of our joy in life, although that is, as well, the source of the tragedies of life, the dark side of our history, which, on all too many occasions, makes us shudder and anxious about our destiny.

Proceeding from this vision, Sturm argues that reality is constituted by a principle of internal relations which departs from the radically individualist view of human experience that dominates notions of political society and legal theory in American life. In the individualist view, private life is elevated over public life and reality is understood as constituted by a set of external relations between self-contained atomistic individuals. In the contrast to the radically individualist view of human experience and the principle of external relations, Sturm embraces the vision of experience in the community of life as constituted by a set of internal relations. This vision finds expression in the image of the beloved community and is applicable to the political structures that sustain our lives . . . . [It is] conveyed through the philosophical principle of internal relations (in the depth of our being, we belong to each other) and the political principle of justice as solidarity (as we belong to each other, so, while celebrating our differences, we are to work together for the sake of all).

On the basis of this vision Sturm calls for a relational theory of law which he calls a "jurisprudence of solidarity" in contrast to a "jurisprudence of individuality." Sturm points out that both of these views of law are concerned with promotion of basic norms. The "jurisprudence of individuality, is concentrated on the basic norm: preserve autonomy!" The "jurisprudence of solidarity, is focused on an alternative basic norm: enhance community!" Both of these views of law are built on their own understanding of reality, and in their purest form "both run contrary to the prevailing practice of law." In other words, what Sturm claims is that these two views are two possibilities, among others, for us to consider in the current on-going "multivoiced and serious contention over the meaning and character of law." The current character and content of the constitutional conversation expresses this contention as we shall see in our study. Thus these two possibilities are also significant options for how you may come to understand the enterprise of constitutional argument and your place in relation to the practice of that argument.

Constitutional Lawyers as Storytellers in the Messy Middle

Constitutional lawyers do what other lawyers do, albeit with a different set of materials. Thus, to fully understand what it is that a constitutional lawyer does, one might well begin by contemplating what it is that a lawyer does. When we look carefully at what lawyers do we shall see that lawyers are storytellers. The heart of the lawyer's craft is storytelling. Lawyers listen to the stories brought to them by their clients and, in turn, re-member and retell them for the purpose of claiming a particular meaning for these stories within the language of law. To be sure, lawyers do many things. Lawyers, counsel, advise, negotiate, mediate, draft papers, advocate, litigate and so on. But inside all of these activities lawyers begin with the stories their clients bring to them and work to claim a particular meaning for those stories within the particular task the lawyer performs on behalf of the client.

There is always a social dimension to this work, even when the lawyer is most intently focused on serving the needs and wants of an individual client, for as paragraph [1] of the Preamble to the Model Rules of Professional Condict puts it "A lawyer is a representative of clients, an officer of the legal system and a public citizen having a special responsibility for the quality of justice." Thus lawyers perform a role that occupies a position of trust, between lawyer and client, between lawyer and the courts, between lawyer and the rule of law, and thus between the lawyer and the larger community.

In constitutional argument the social dimension of the lawyer's work is especially evident because the values of the larger society are always present within particular constitutional disputes about the origin, nature and function of governmental power and the human rights which serve as a limit on that power. Thus, constitutional cases are always, in a very direct way, cases about who we are as a people and how we have chosen to live together. Because the constitutional conversation is on-going, it is most importantly, a conversation about who we might yet become.

As we take up the stories which come to the courts presenting issues of constitutional law, we shall come to see that even as constitutional law takes up many of the most difficult political issues of the day, it does not provide ready answers for them. The answers must be struggled for, in the quest for the "more perfect union." Here we collectively experience the existential situation of "making choices in the messy middle" as an aspect of both life and law. This is the situation in which the possibility of community, if it is to be experienced, emerges. There is work for us to do here, together, in conversation about who we are as a people, who we have been, and who we might yet become on the continuing constitutional journey.

Constitutional Argument as Constitutive Rhetoric

To expand on the constitutive character of constitutional argument and the practice of storytelling in this work, we may profitably turn to the work of James Boyd White. In their storytelling, lawyers are engaged in a set of practices that White calls "constitutive rhetoric." White takes the view that law is more a matter of what lawyers do than what lawyers know. Simply stated, law is an activity. Because lawyers work with the texts that give shape to the life of the community, as well as to the public conversation about the shape of the community, what lawyers do is a cultural activity involving argument, around and about the text and tradition of the community in which that text is located. As a cultural activity, law is composed of a "set of possibilities" and is more like an art than it is like a science.

In a wonderful little essay, first delivered as an address to first year students at the University of Chicago, Professor White elaborates his view of law as a cultural activity that takes place within the culture of argument inhabited by lawyers.

[L]aw, [is to be regarded] not as a set of rules to be memorized, but as an activity, something that people do with their minds and with each other as they act in relation to a body of authoritative legal material and to the circumstances and events of the actual world. The law is a set of social and intellectual practices that defines a universe or culture . . . .

This cultural activity of lawyers, White says, is both "rhetorical" and "constitutive." In identifying the activity of lawyers as "rhetorical", White explains that what lawyers do involves far more than merely pursuing questions of "What do we want?" and "How do we get it?" A view of law, limited to such questions, is preoccupied with rules and has little time for examining the context or purpose of law. He calls this the "mechanical view of law." Over against the mechanical view he develops the elements of law as a rhetorical art. While not ignoring the rules, White's view of law as a rhetorical art is preoccupied with participation in constitutive conversations that proceed from and make up the life of the community.

In naming law and the activity of lawyers as "constitutive rhetoric," White says that "constitutive rhetoric" is "the central act by which community and culture are established, maintained, and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject."

The activity of legal argument, understood as rhetorical and constitutive, White says, has three characteristics which mark it as a cultural act for creating community. First, it works empirically with the inherited language. Second, it involves an argument about the terms of the language itself. Third, it involves an argument about the character of the community in which the language is used.

His description of each of these elements is worth our contemplation.

1. The Inherited Language - "The lawyer . . . must always start by speaking the language of his or her audience, whatever that may be." Thus legal argument must be culture specific. In the study and practice of constitutional law we are concerned, then, with the styles of argument within that subculture of constitutional law.

2. The Art of the Text - "[I]n speaking the language of the law, the lawyer must always be ready to try to change it: to add or to drop a distinction, to admit a new voice, to claim a new source of authority, and so on." This involves a creative process for it is an argument about language. It is culture constitutive. The lawyer is saying "this case should be decided . . . [with this result] . . . in this language . . .[for it is] the proper language of justice in our culture."

3. The Rhetorical Community of Lawyers - To paraphrase White, when you speak as a lawyer you establish a character for yourself as a lawyer-"an ethical identity" as well as for your audience and those you talk about. In addition you propose a relation among the characters you define. Therefore

[t]he lawyer's speech is . . . always implicitly argumentative not only about the result--how should this case be decided?--and about the language--in what terms should it be defined and talked about?--but also about the rhetorical community [of lawyers] of which one is at that moment a part. The lawyer is always establishing in performance a response to the questions, "What kind of community should we, who are talking the language of law, establish with each other, with our clients, and with the rest of the world? What kind of conversation should the law constitute, should constitute law?"

The argument of lawyers can have great constitutive power because it involves language which is an expression of the coercive power of law to shape social behavior. Ultimately the power of legal language is the power to shape the larger community beyond the culture of lawyers.

In sum then, the constitutive activity of law is deeply related to the larger culture as well as to the culture of lawyers in a complex interactive way. Two sets of phenomena - life and culture, and law and the culture of lawyers - are co-dependant, act upon each other, and together shape the meaning of justice in the community in which they are related. The activity of law shapes the culture of lawyers, which in turn shapes, in part, American life and culture, at the same time that law and the legal culture are shaped, in part, by American life and culture. So understood, legal discourse is an important part of the moral and political discourse of American society. As such it can have a powerful impact on our society.

To engage in this work as constitutional lawyers, we gather around the constitutional text and begin to tell stories. In doing so, we take up the text and engage each other in argument about the possibilities of American constitutional law for securing the American vision of justice - a vision of equal liberty within a more perfect union contained in the Declaration of Independence and the Preamble to the United States Constitution. This involves development of expertise in the practical skill of performing the craft of constitutional argument in a way that is grounded in a rich contextual understanding of the history of constitutional argument and adjudication.

James Boyd White illustrates the constitutive rhetorical character of constitutional argument in his analysis of the landmark case of McCulloch v. Maryland which we shall consider at length during our study. On Chief Justice Marshall's opinion for the Court in that case, White observes that

Marshall claims at last that the Constitution is not to be regarded as establishing a separate sphere of life or language; it must be seen as an integral part of the culture of which it is made and in which it in turn, reconstitutes. This is indeed why it must be regarded not as a mere legal instrument, resting on some abstract authority, but as a true constitution: of language, of community, and of culture."

In our extended study of McCulloch, and all that follows in the course on constitutional law, we shall see how Marshall's opinion has played a central role in constituting the constitutional conversation of lawyers as well as everyday citizens.

Thus, in a constitutional setting, we might say that lawyers are storytellers, engaged in constitutive rhetoric to serve the common good - as the constitution puts it, to serve the quest for a "more perfect union." The "constitutive rhetoric" of constitutional lawyers is constitutive in two interlocking senses: it constitutes the discourse about the constitutional discourse which in turn, constitutes who we are as a people. It brings both a vocabulary into being as well as a people engaged in calling a political society into being through that vocabulary. Lawyers are deeply engaged in this constitutive activity, both in and out of the courtroom, because of the large role law plays in shaping American culture and political society. Thus, constitutional lawyers are embedded in a set of relational practices, bound to a community that looks, in part, to those practices for its common life.

Constitutional Argument as Interpretive Argument

I have argued that the craft of constitutional argument is devoted to securing the American constitutional vision of "a more perfect union." But, this vision is not self-defining. Rather, the constitutional text provides a framework for a conversation about the meaning of the vision in particular cases. The opinions of the United States Supreme Court build on and elaborate that framework. Thus, much of our study is an effort to understand and learn how to work with this framework in our own practice of constitutional argument. In sum we might well define the lawyer's craft of constitutional argument as follows:

The craft of American constitutional argument is a performing art which involves the use of critical imagination, grounded in a rich contextual understanding of the history of constitutional argument and adjudication, for the purpose of developing an inference concerning the meaning of the vision of justice contained in the text of the constitution, as applied to the facts of a particular dispute supported by reasons which seek to persuade others to embrace that inference in the context of the dispute.

This definition takes constitutional argument to be a form of interpretive argument - It is argument about the meaning of the constitutional vision of justice contained in the text of the Constitution of the United States. More concretely, constitutional argument is a continuing drama about the content and character of the relationships established and mediated by the text between four related sets of actors: the people in general, the federal government, the state governments, and individual members of society.

The constitutional conversation is conducted in a way that can be described in terms of a set of conventions of argument employed by the participants in the conversation. Appeals to justice or convenience (policy arguments), must employ a defining rubric within the bounds of the conventions of constitutional advocacy to be effective, i.e., they must be made in constitutional terms. From this perspective, the study of constitutional law is a course of study in the culture of constitutional argument, and its core concern is study of the way in which that argument is performed. This includes an examination of the conventional forms of argument, as well as how arguments might be made in an effort to alter the conventions of constitutional argument.

Study of constitutional analysis and argument, over time, will reveal a deeply embedded pattern of conventions that rests on a shared set of assumptions about the law that are indebted to the Eighteenth Century background of the American Constitution. Thus for example, in American constitutional law, human rights are most often understood in highly individualistic and negative terms. In this framework, reality is understood as a Hobbesian struggle of all against all. Individual rights in this framework serve to protect the individual against encroachment from the government by policing the separation of the public and private aspects of experience.

Notwithstanding the power of this background to influence the practice of constitutional argument, it cannot ultimately determine it in a mechanistic way. Constitutional argument may indeed always start with the text, and be made in the name of that text, but nonetheless, it requires that the practitioner make a choice of interpretive strategy for claiming a meaning for the text within the context of the facts presented in the case. The constitutional text is not self defining, neither does it prescribe a particular interpretive approach to determining the meaning of the text. Therefore every constitutional argument requires a choice between various modes of argument that utilize a particular source of authority in a particular way for the purpose of claiming a meaning for the constitutional text. Much of our study and discussion will be taken up with argument about such choices.

In sum, through the study of constitutional interpretation we seek to develop a sound understanding of the American constitutional conversation so that we may enter that conversation ourselves. As part of this study a student cannot avoid deciding where and how to stand in relation to this culture. What you make of it is a matter of choice and helps define who you are as a constitutional lawyer.

The Culture of Legal Argument and the Lawyer's Vocational Identity

To get a better understanding of how your practice of constitutional argument is an important and distinctive expression of the larger culture of argument, and what that means concerning your vocational identity as a lawyer, consider what has been going on since you began your studies in law school. When you began your law studies you were plunged into a daily concern with cases and statutes. As you have come to work with these materials today, your attention is intensely focused on learning the rules of law and how to employ them in legal analysis and argument. But there is much more at stake than simply your ability to learn and apply the method of legal analysis and argument. Your personal identity as a lawyer is also very much at stake, even though that is not addressed in an explicit way. Ultimately you are not only learning the materials and methods of law, you also are choosing your place in relation to these materials and method. That is the dual task facing the law student as described by James Boyd White in his essay The Study of Law as an Intellectual Activity to which I have already referred. Professor White sheds light on your task in the following words:

[L]aw, [is to be regarded] not as a set of rules to be memorized, but as an activity, something that people do with their minds and with each other as they act in relation to a body of authoritative legal material and to the circumstances and events of the actual world. The law is a set of social and intellectual practices that defines a universe or culture in which you will learn to function. Like other important activities, law offers its practitioner the opportunity to make a life, to work out a character for himself. What you will learn in law school, in this view, is not information in the usual sense, not a set of repeatable propositions, but how to do something. . . . What is peculiar and central to your experience in law school and beyond is learning how to participate in this activity, not as an academic, but as a legal mind. . . .

. . . Your concern in law school is . . . a double one: to learn as completely as you can how the legal culture functions; and to establish a place for yourself in relation to it from which you can attempt to use it in your own ways--in ways that increase your capacities and powers, ways that enable you to speak truthfully to the conditions of the world and to take positions (and offer them to others) which seem to you to be right.

The challenge you face is to learn the culture of legal argument and to begin to choose your identity as a lawyer in relation to that culture. The legal tradition you are entering, together with the system, and materials which mark it, have a history which is rarely studied in any depth in law school as you focus on the rules of law. Yet an awareness of this history and the centuries of argument over the meaning of that tradition can be a helpful resource to you in your studies. It can give you an understanding of the larger cultural context in which the rules of law develop which can enhance your ability to engage in legal argument, at the same time that it can help you begin to choose your place in relation to the law.

To assist you in learning the culture of constitutional argument we shall take seriously the historical origins of the legal tradition and the theoretical themes which are a part of that history: What is the deep structure of legal argument beneath the doctrinal surface? What are the basic assumptions that inform this deep structure? How does the deep structure shape the habit of mind and argument of the lawyer?

To assist you in reflecting on the choices you face in taking your place in relation to the legal culture in general, and constitutional law in particular, we shall take seriously the question of the lawyer's identity: What does it mean when you say to someone else that you are a lawyer? When you say you are a lawyer, what are you claiming about yourself? What are you claiming about the law which you study and practice?

The choice you exercise in developing your identity as a lawyer is deeply interwoven with the approach you bring to the materials of law and the legal system distinctive to the legal tradition in which you are working. The choice you exercise is also deeply interwoven with the human identity you bring to your work. Thus the stakes involved in your choice are very high for they are not simply professional, they are also very personal and may well have an impact on your relationships in all areas of your life.

In this course on constitutional law, as in many other courses you have taken, and will take in law school, we shall focus intensively on doctrinal analysis and argument. The doctrinal focus found in the typical law school course law is important and understandable since doctrinal analysis and argument provides the backbone of legal analysis and argument. But we shall be constantly attentive to the larger social and political context in which the issues we discuss arise. We shall do this so that we do not fall victim to the contextual blindness that study devoted purely to doctrinal analysis can cause. Such blindness can be dangerous in two ways. First, it can blind you to the full range of imaginative possibilities for constitutional argument that are presented within the social context of the issues we shall discuss. Study devoted purely to doctrinal analysis and argument can narrow one's focus to a concern for legal rules and block out what constitutional scholar Charles L. Black, Jr., calls the "possibilities of law" to secure justice. These possibilities depend not on the simple acquisition and application of the rules of law, but rather on the lawyer's imagination in legal analysis and argument. The danger of adopting a narrow focus on the rules of law in your study is that you will very likely shut down your imagination and fail to see, let alone call upon, the full range of possibilities of law to secure justice.

Second, study devoted purely to doctrinal analysis and argument can blind you in a way that may cause you to fail to recognize the new choices before you, and especially those involving your identity as a lawyer, together with how they emerge in your work in the law and the legal tradition. The danger is that study devoted purely to doctrinal analysis and argument is very likely to obscure your ability to see who you are becoming as a lawyer. It may lead to you adopt a particular identity as a lawyer because you feel compelled to do so by the law school culture rather than as a matter of personal choice. If you let the choice of your identity as a lawyer be compelled by external circumstances in law school you risk becoming alienated from a vision you might have of yourself as one who is committed to law study in order to work for justice. In short, in addition to the important traditional doctrinal concerns of constitutional law study, this course provides a glimpse of constitutional law that can assist you in developing a legal identity which is freely chosen and committed to the quest for justice.

Law as Artwork and the Task of Legal Education

Once you understand the personal stakes as well as the larger social stakes involved in the practice of constitutional argument, you can then approach legal education in a way that demands of that education, and of yourself, that it serve your work and prepare you for the choices you face, rather than letting yourself be shaped by it in an unreflective way, caught in a web of contextual blindness about law, its meaning and your vocational identity. With your eyes wide open to the possibilities of law, you might approach law as artwork in pursuit of justice, performed by lawyers, in a social context, through the craft of counseling and advocacy.

Mastery of the lawyer's performing art is gained, in part, through that legal education which is devoted to teaching critical thought within the categories of discourse employed by lawyers. These categories include legal rules as well as all of those resources which illuminate the social context in which lawyers perform their artwork. Concretely this involves the teaching of critical reading and critical argument employed by the lawyer in the craft of counseling and advocacy. The focus of such education is on gaining proficiency in the task of critically developing, and convincingly defending, reasons offered for courses of action in performance of legal counseling and advocacy. As such, the activity of law and the purpose of legal education is devoted to a deep concern for reasons and reasoning in the social contexts addressed by law in a way that goes beyond the mere acquisition of information about and skill in manipulating the rules of law.

Compassion in the practice of this performing art is gained, in part, through a sensitivity to the normative dimensions present in this art. This requires the development of the habit of undertaking both the study and practice of law with careful attention to the social context from which it springs and to which it speaks. In particular it requires the development of the habit of careful attention to the values at stake in any given fact situation addressed by law in that context.

From this perspective, the rules of law are an important subject of study, but a focus on reasons supporting the application of the rule in pursuit of justice in a particular social context is even more important. Furthermore, from this perspective, every course in law school is a variation on the central task of legal education--the critical development and convincing defense of reasons for action, whether that be done in a counseling or advocacy setting. Courses in law school are thus all the same in one very important respect. They are all courses in public persuasion.

In the case of those "traditional" courses which address doctrine and practice, persuasion is taught in the context of a given portion of the "world of law." Constitutional law, for example, is but one version of this in its concern for persuasion in the context of issues related to the power of government and the limits placed on that power. Torts, for example, deals with the issues surrounding the definition and remedies available for civil wrongs. Litigation practice, for example, deals with the actual practice of persuasion in the framework of the courtroom. In each case persuasion is taught in the context of the activity of some aspect of law and the lawyer's vocation.

In the case of "non-traditional" courses which provide what are some times referred to as "perspectives" on law and its practice, persuasion is taught in the context of critical thought about "law in the world." Jurisprudence, legal history and interdisciplinary courses, for example, take as their subject, development of a critically informed view of the place of law in the world at large. In each case, even though legal analysis and argument of the type found in the "traditional" courses is not being taught, persuasion, the foundation of legal analysis and argument, can be taught when emphasis is placed on critically developing and convincingly defending a particular view on the larger issues that provide the subject matter for such courses.

The upshot of all of this is that the classroom is not merely a place in which information transferal takes place, but more significantly, it is a public place in which we all, student and teacher alike, gather around a common text and critically discuss the reasons that might be supplied to claim a particular meaning for that text in a particular fact situation within the larger social context from which law springs and to which it speaks. In this perspective the study of law belongs to the liberal arts, not to the sciences, and the classroom is a theater for developing skill in the practice of the performing art of law--a place to practice doing law rather than merely receiving law. It is also a place to begin to address and answer the question of the lawyer's vocational identity: What does it mean to say to someone else, "I am a lawyer?"

A central task for legal education, understood as a form of liberal arts education, is to address the core ethical issue of the lawyer's vocational identity. In a traditional liberal arts setting, with a solid curriculum sensitive to the normative dimensions of all of the disciplines, the vocation of what it means to be human becomes the core issue around which all of the "practitioners" of the liberal arts gather for dialogue. The very heart and foundation of that dialogue is ethical in character. If this is true for liberal arts education, it is no less true for legal education. In the halls of the law school we teach skills that prepare legal advocates and counselors for performance in communities that seek justice. Thus the very heart of the lawyer's vocation has a foundation that requires ethical reflection if the practice of law is to be a humane profession capable of addressing the needs of the community it serves.

The Constitutional Journey

Study of the language of constitutional law is an activity for mariners not miners. Lawyers perform their craft, not by digging in search of bedrock, but rather by recognizing that they are embarked and learning how to sail. Like the sails we set before the wind, our task is always before us. The task of counseling and advocacy is a journey, not a destination. Our journey may always take turns which secure less justice than we may hope for. But it may also bring us more than we might ever expect. One who undertakes this odyssey does so in the midst of history and with a recognition that it is a task among and on behalf of the neighbor/citizen who shares this journey with us. The "more perfect union" we seek is not something totally distant in the future. It is a reality that may be experienced in our journey. As a nation, a people, and individuals, we are becoming. Our constitutional discourse is an important vehicle for the dialogue in which this takes place. The stance we take in this task is itself a vehicle for more fully realizing that vision. With this recognition we take up the task of constitutional discourse with humility, but not without hope - for if we have not hope there is nothing that can move us to take up the task at all.

Part II

The Role of Narrative:
Judicial Decisionmaking & the American Story

Disputes arising from different views of reality, moral understanding and the source of moral authority have been a prominent feature of political conflict in recent years in the United States. James Davison Hunter refers to this phenomenon as "The Culture Wars." The stakes in these disputes ultimately involve a struggle for cultural domination that involves a struggle for survival of a particular way of life.

One way of speaking about the high importance of particular narratives for particular people is to speak of them as "Master Stories." Master stories often include myths of origin as well as features of individual and community identity. The norms of the community are undergirded by these stories and give them, and the community, shape, meaning and identity. Master stories are narratives rooted in the historical experience of these people and have normative content for them in terms of understanding themselves and the world they encounter, as well as providing guidance for how they live their lives. Out of these stories come the distinctive features of individual and collective identity shared by those who are members of a community within a particular culture. The stories give rise to the norms of the community and provide a resource for their application in forming and sustaining the community. These stories are told and retold down through the ages as a central vehicle for cultural transmission and identity.

Thus, for example, the Exodus story is the master story of the Jews. For them it conveys both the meaning of life and what it is they understand themselves as called upon to do. The central elements of liberation from bondage, the giving of the law, and the covenant at Sinai are focal points of the story. The Passover Haggadah (literally the telling) which is read aloud at the Passover Seder each year, retells the story and perpetuates it in the memory of the people. In the case of Jewish identity, for example, the relationship of the master story of the Exodus to individual identity and action may be stated as follows: The individual bears an identity formed in large part by the community and the norms (Halakha) of that community which are in turn shaped by and float upon the sea of aggadah (the stories of the community) rooted in the master story of the Exodus. The master story provides a tap root for the stories, norms, and community identity as well as their interpretation over time. In this dynamic way the master stories are foundational as well as life giving within the tradition that holds them dear.

Other examples can be found elsewhere. Christians, Muslims, Native Americans, and others, all have particular narratives which serve a similar purpose. Where any of these people come into conflict with the state, it is often because their particular master story, and the tradition which surrounds it, calls them, as individuals, to pursue a course of action which the state is not willing to permit.

Prominent within many of these master stories are sacred sites, and rituals which embody the story and serve as vehicles for its passage across the generations. Many of the sites and rituals have become the focal point of conflict and warfare. The continuing conflict over the sacred sites of Jews, Christians and Muslims in the Old City of Jerusalem, and the ongoing conflict over sacred sites of indigenous people in North America are striking contemporary examples of how cultural conflict over master stories takes form. In this sense all of the structure and ritual associated with the inauguration of an American President in the open air on the steps of the United States capitol building in Washington, D.C. every fours years, serves thhe purpose of embodying and conveying the American story as "one people - one nation," ruled by a "government of laws rather than of men (sic)" with all that implies concerning such matters as the organization, transfer and exercise of power. Within this story, rights play a prominent role as a limit on governmental power.

Master stories are not neutral. They embrace and express a particular understanding of reality and are value laden. This means that that they can be either "hegemonic tales" or "subversive stories." As two observers note:

Narrative can contribute to hegemony by functioning as a means of social control instructing about what is expected and warning about the consequences of nonconformity. Narrative can also contribute to hegemony by colonizing consciousness with well-plotted but implicit accounts of social causality. Finally, and most importantly, . . . , to the degree that stories depict understandings about particular persons and events while simultaneously effacing the connections between the particular persons and the social organization of their experience, they hide the grounds of their own plausibility and thus help reproduce the taken-for-granted hegemony. However, narratives can also be subversive. To the degree that stories make visible and explicit the connections between particular lives and social organization, they may be liberatory. Subversive stories are narratives that employ the connection between the particular and the general by locating persons and events within the encompassing web of social organization.

The foregoing observations point up one of the major problems associated with conventional American constitutional rights?based approaches to dealing with cultural conflict, and especially those involving different ethnic or religious groups. That problem is the potential any particular master story has for imposing its story on an entire people in the name of the state, thus extinguishing the cultural heritage of those who find their identity in the extinguished master story. The master stories of the other are often obliterated when they come into conflict with the "imperial story" of the dominant culture. Indeed, this is one way that the other is erased by the dominant culture. Thus, when cultural conflicts come to the American courts, the master stories of people in conflict with the state, who hold dear a story that is in conflict with that of the dominant group, are likely to be given short shrift or ignored altogether. The result is that the dominant master story triumphs at the expense of other master stories implicated in the legal dispute.

The threat of suppressing or extinguishing a master story is especially serious in cases involving efforts to exempt religiously grounded conduct from the reach of the law of the state as a matter of religious liberty protected by the First Amendment to the American Constitution. A particularly disturbing example involves those cases in which there is conflict over the sacred sites of Native American tribes, when those sites are located on public land that is open to a variety of uses that conflict with the Native American rituals practiced at those sites. Such cases are typically characterized by the courts as involving conflicts between individual believers and the state. That view, however, frequently neglects the deep cultural significance of these cases to the communities from which the parties to the dispute come to the court. Instead of focusing on these cultural stakes, the conventional view is that what is at stake is individual liberty. Consequently, courts frequently neglect or give less than full consideration to the deep cultural significance of these cases to the communities from which the parties to the dispute come to the court. What is overlooked in the process is that these are conflicts between communities that arise from clashes of culture between those communities. They are not simply conflicts between individual rights and government power. The source of the conflict is rooted deeply in the master stories of the communities involved where individual conscience and identity is formed and informed by those stories. Beyond these observations, it bears mention that to the extent that individual rights are a core feature of the dominant American master story, the Court's use of individual rights principles in adjudication of sacred site cases endorses and imposes the American story and thus participates in the erasure of Native American master stories. In the process, the Court becomes a powerful instrument of cultural warfare despite its claims to employ "neutral principles."

The American Story:
E Pluribus Unum in Pursuit of Equal Liberty

The American narrative is a story about the quest for what the Declaration of Independence describes as equal liberty within the "more perfect union" that animates the vision of justice contained in the Preamble to the United States Constitution. An important aspect of this story is captured in the national motto - e pluribus unum: from many - one. The long journey of the people since the issuance of the Declaration in 1776, through the failed Articles of Confederation of 1781, the Original Constitution of 1787, the Bill of Rights of 1791, the Civil War of 1860-64 and the Amendments which followed (13th, 14th, 15th) as well as other amendments, plus countless national and state statutes, and international treaties, together with a host of United States Supreme Court decisions interpreting and applying these sources of law, show that the history of membership in the sovereign people ("We the People") and the attributes of that membership is marked by a constant dynamic tension over an inclusive and exclusive understanding of who constitutes the "We" in the American political community. From this perspective, the American narrative is a long-running story of this dynamic tension and efforts to resolve it. It is a story with both comic as well as tragic dimensions. Nevertheless it is a story to which many still turn with hope in the possibilities of a "more perfect union" that might be more fully realized in the future, despite being dishonored so often by the failings of the past, such as the original compromise at the founding with the practice of Slavery, and the disastrous history of treaty making and breaking with the Native American tribes.

The Clash of Stories in the Court of Law

When cases involving a conflict of rights come to the Court, there are often two different master stories in conflict that have given rise to the legal dispute. This is illustrated by the constitutional case of Graham's Lessee v. William M'Intosh, 21 U.S. 543 (1823). Recall that in Fletcher v. Peck, 10 U. S. 87 (1810), Chief Justice Marshall adopted the vested rights approach to a constitutional dispute over property rights characteristic of the early part of the 19th Century in the course of resolving the dispute over title to land. In Fletcher the dispute involved adjudication of competing claims by parties who no doubt shared the Anglo-American view of land as property subject to human possession by individuals (the quintessential source and expression of property rights) which comes down to American experience from the English common law of property. In M'Intosh Chief Justice Marshall concluded that the Cherokee people had lost their rights to their ancestral lands upon discovery and conquest by the European nation-states who launched expeditions to North America, where they later made claims to land based on an appeal to the "law of discovery and conquest." Beneath this "principle" there lies a view of land which stands in stark contrast to that of the Cherokee tribe. The difference between these two views is rooted in competing master stories, and the place of land within those stories.

M'Intosh is simply one of many examples in which the legal dispute arises from the collision of European culture, in its various expressions, with that of the Native people of the North American continent, in their various expressions. In broad terms this collision involves a deep divide in fundamentally differing views of time and space. Taking the radically different views of land held by the European states who "discovered" North America, and the early Americans who secured possession of it through revolution from England, as well as the competing view of the Cherokee people, who did not hold an individual rights-based possessory view of their relation to the land on which they lived, one can easily see how the M'Intosh case not only involved a deep cultural conflict which gave rise to the legal conflict addressed by the Court, but also is an example of how judicial resolution can involve taking sides on the cultural conflict in a way that threatens the very fabric of the Cherokee community by suppressing the master story of the Cherokee people as it relates to land. The case of Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988) is a recent disturbing example of how this occurs in the context of a dispute over a Native American sacred site on public land.

Another dramatic example of how the imposition of one master story upon another people can be a means for subordination and subjugation is the opinion of Chief Justice Taney in Dred Scott v. Sandford, 60 U.S. 393 (1857). Dred Scott, his wife Harriet and daughters Eliza and Lizzie, were slaves of African descent who sued for their freedom, in part because they lived for a time in free territory, including four years at Fort Snelling, in what is now St. Paul., Minnesota. In the course of his long opinion, Chief Justice Taney argued that the Constitution was based on the view that Africans were "so far inferior, that they had no rights which the white man was bound to respect . . . ." He went on to say that, "At the time . . . when the Constitution . . . was framed and adopted
. . . , [people of African descent were] regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations. . . ." Thus, Taney concluded, "It cannot be supposed that . . . [the framers of the constitution] intended to secure them rights . . . in the new political body [known as the United States]." In light of this, Taney held that the members of the Scott family could not sue in federal court because they did not, as slaves of African descent, have citizenship.

In reaching this decision, the United States Supreme Court embraced and enforced what William Lloyd Garrison called the "compromise with death" of the framers. And such it was, for the Dred Scott Case became one of the reasons that plunged the nation into civil war. The rise of Jim Crow legislation, sustained in Plessy v. Ferguson, 163 U.S. 537 (1996), made clear that the efforts to escape from the compromise with death, through the abolition of slavery and reconstruction which followed, only served to more fully entrench "the color line" which W.E.B. DuBois called the problem of the 20th Century. Despite the brilliant work of Charles Hamilton Houston and his colleagues at the NAACP Legal Defense fund to attack legally enforced segregation in schools, which eventually triumphed with Thurgood Marshall's successful argument before the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954), the problem of the color line is with us today in the 21st Century as concerns over racial disparity in the criminal justice system and many others aspects of American life continue to hobble our efforts to secure the "more perfect union."

Against the backdrop of the experience of Native Americans - the only non-immigrants in the United States - and African Americans - the only forced immigrants to the United States - and the on-going debate throughout the land on what "citizenship" means within the context of that experience, the clash of master stories is revealed as persistent and multi-faceted. Today it involves conflict between different master stories as well as within the dominant American story. Thus, in the case of Native Americans and African Americans, much of the first 200 years of American constitutional history involved a narrative conflict between master stories with quite different understanding of reality, while debates today over efforts various proposals for government initiatives, such as affirmative action, designed to heal the wounds of exclusion these people have experienced reveal how narrative conflict can emerge within a single master story as Americans quarrel over whether such initiatives are faithful to the vision of justice contained in the Constitution. Thus, much of the current debate is ultimately more about the meaning of the American commitment to equal liberty - a core element of the American story - than it is an argument between conservative or political philosophy. The question from the founding which is with us today is this: What does the "We" mean in the first three words of the Preamble -- "We the people?"