The Constitution — Interview with Legal Scholar Michael Paulsen

Last updated on: February 20, 2016 at 6:06 pm by Scot McKnight

The Constitution — Interview with Legal Scholar Michael Paulsen 2016-02-20T18:06:14-06:00 Scot McKnight

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Law professor Michael Paulsen and his son, Luke, a recent graduate of Princeton, teamed up to write a terrific book on the US Constitution.

The Constitution: An Introduction does not disappoint. It is thorough, thoughtful, well written, and accessible to all kinds of readers. As a devoted reader of history, it helped me make many connections, as my heavily annotated copy will attest.

The following interview was done with Michael Paulsen. David George Moore conducted the interview. Dave blogs at www.twocities.org.

Moore: The back-story that spawned the writing of this book is somewhat unusual. Would you fill out some of those details?

Paulsen: Sure! Luke, my son, had long expressed an interest in what I did for a living. When he was young, and I would sometimes drive him and his younger sister to school on the way to work, he would ask me about what I was teaching that day. It actually proved a good warm-up for class – and forced me to put things in concise, clear, lay terms. He was always a smart kid, and he would ask great questions. By the time he was in eighth grade, I’m afraid he knew a fair bit about the Constitution and law generally – by virtue of car rides and conversations with his dad. (There are far worse forms of child abuse!) When I returned from a conference with the idea of an all-readers book on the Constitution – smart and sophisticated, accurate and comprehensive, but readable and not full of legal jargon – it was natural for me to tell Luke about that idea. By this time I think he was in ninth grade. We hatched the idea of doing the project together as a summer-vacations diversion, and the book took off from there. Nine summers later – nine! – it finally reached fruition, and the result is the book you have!

Moore: Why weren’t the Articles of Confederation sufficient, and by way of extension, why was the Constitution needed?

Paulsen: Long story short: The Articles really failed to create a true national government and that quickly became an overwhelming problem for the republic as a whole. The Articles, as we explain in the book, were actually more like a “treaty” of permanent alliance – a united nations agreement among thirteen separate, sovereign states. The states retained the sovereignty and ultimate authority, but merely pledged to work together and abide by common agreements among them. That worked tolerably well (but really not even all that well) so long as the Revolutionary War with England supplied a unity of purpose to their efforts. But after independence was won, the system broke down rapidly. Squabbling sovereign states, uncooperative with the decisions of the “congress” as a whole, pursuing their own agendas, not adhering to international treaties – all of these contributed to the perceived need for a new, and true, constitution of government for a single sovereign nation, rather than a league of alliance for thirteen states. That’s why the Constitution was needed, and that’s the story we tell (at greater length) in the opening chapter of the book.

Moore: You have sketches of key figures throughout your book. During the time of the Constitution the impact of a Madison or Hamilton is truly amazing. Without doing hagiography, we can still safely say these early founders were remarkable. Why does it seem we no longer have political leaders who are both courageous and thoughtful?

Paulsen: I’m not sure that all of today’s leaders fail in these categories! (But surely it seems that many of them do!) What I am sure about is that the founding generation was blessed with some truly exceptional leaders and thinkers – Washington, Hamilton, Madison, Franklin, Wilson, Morris, Adams, Jefferson and (coming slightly later) Marshall. You are right: these men were remarkable figures. It truly was a rare moment in history when so many important thinkers came together to produce, and then launch, a new nation, a new national government, and an astonishingly good (if still flawed) national constitution.

Moore: Throughout your book you remind us that the Constitution not the Supreme Court is ultimate. In our modern era, what has caused the erosion of this founding principle?

Paulsen: It’s a repeated theme in our nation’s constitutional history: The Supreme Court, important as it is, is not infallible and is not supreme over the Constitution. The Court has made a number of mistakes, some of them astonishingly awful ones, with enormous repercussions. And when it has done so, the other branches of government have taken up the challenge to check-and-balance the Court, exercising the powers at their disposal. The most famous and important instance of this is Lincoln’s resistance to the Dred Scott decision and to judicial decisions interfering with what he thought – as an extraordinarily sophisticated constitutional lawyer himself – were his constitutional powers as Commander in Chief in time of war and emergency. Can you imagine if the Supreme Court would have tried to strike down the Emancipation Proclamation as unconstitutional? Lincoln surely would have resisted the Court yet again. We tell the story of Lincoln, the Civil War, and the Constitution in Chapter Seven. It’s one of my favorite chapters of the book.

The modern era – dating to the 1950s – has seen a trend back toward popular and political acceptance of the (originally mistaken) notion of “judicial supremacy” – the idea that what the Court says goes, no matter what. That notion would have been horrifying to the framing generation, to Lincoln, and to many other presidents – Jefferson, Jackson, Roosevelt, and Roosevelt, to name just a few. But the turning point in the modern era may have been the “Steel Seizure Case” (Youngstown Sheet & Tube Co. v. Sawyer) of 1952, in which the Supreme Court struck down President Truman’s unconstitutional seizure of the nation’s steel mills, without legislative authority, during the Korean War. Truman backed down, and that established the political precedent of deference to judicial decisions. It helped in that case, tremendously, that the Court was right! (Presidents can’t just make laws on their own and seize and nationalize whole industries!) Next, in 1954, came the Supreme Court’s landmark decision in Brown v. Board of Education, overruling the notorious Plessy v. Ferguson separate-but-equal segregation decision. The Court was unanimous, and acquired enormous prestige and legitimacy by righting this longstanding constitutional wrong.

We discuss these events near the end of Chapter Nine. Chapter Ten of the book then picks up with the theme of “Controversy” and the increasingly activist decisions of the modern era – including discussion of numerous hot-topic cases of constitutional law in the Supreme Court. The notion of “judicial supremacy” has not worn so well with many of these decisions, but I would have to say that the pendulum has not (yet?) swung back to the other coordinate branches of government flexing their constitutional interpretive muscles to push back at the Court. Will controversial decisions of the Court produce such a pushback at the idea of judicial supremacy, in favor the original checks-and-balances, competing-interpreters view? It will be interesting to continue to watch.

Moore: There are a number of fascinating people who make appearances in your book. Ideas about the Constitution are made much more tangible by telling the stories of these people. Oliver Wendell Holmes is one such person. Holmes truly was a flawed genius, wasn’t he?

Paulsen: He was indeed. This was one of the areas in which Luke provided some truly great insights. He kept pointing out to me that, in so many of the regrettable, wrongheaded decisions around the turn of the century, there was the “brilliant” Justice Oliver Wendell Holmes writing colorfully, seemingly persuasively, but producing truly terrible, unconstitutional results! His most notable constitutional majority opinions upheld racist anti-black voting schemes, prosecution and punishment of a presidential candidate for his anti-war views, and compulsory sterilization of persons with mental disabilities. Holmes had a dazzling writing style, but his brilliance seemingly misfired as often as it reached correct results.

Moore: Lots of ink has been spilled over Lincoln’s temporal suspension of habeas corpus. Among others, James McPherson believes this was the only option for persevering the Union. Do you agree?

Paulsen: We mostly leave the historical disputes to the historians – and James McPherson is the best of the best in Civil War history. (Incidentally, Professor McPherson was kind enough to read our chapters on slavery, and on the Civil War, in draft form and comment on them. He also wrote a wonderful endorsement of the book.)

Our interest is in the question of what constitutional powers Lincoln properly possessed – or didn’t possess – during wartime, and whether this included the power to suspend the writ of habeas corpus in situations of rebellion that threatened the nation’s existence. The Constitution actually states that the writ of habeas corpus – the right to resort to judicial legal process – can be suspended when in times of rebellion or invasion public safety requires it. But the Constitution does not specify who can suspend the writ, and that framed a major controversy and confrontation between Lincoln (who felt he had the authority to act alone, particularly when Congress was out of session) and Chief Justice Roger Taney, the author of the Dred Scott decision, who argued that only Congress could suspend the writ. Taney struck down Lincoln’s military suspension of the writ in Maryland, at the outset of the war. Lincoln essentially defied Taney’s order – it’s one of the major historical instances of executive resistance to judicial authority in our nation’s history.

In the book, we note how central to Lincoln’s constitutional interpretive views was his idea that the President’s duty to preserve, protect, and defend the Constitution required him to preserve, protect, and defend the nation whose constitution it is – and that the overriding goal of national and constitutional survival supplied a principle through which to read many of the specific provisions of the Constitution. Was Lincoln right? I personally tend to think so, but readers will draw their own conclusions, and some will differ from this view! (Incidentally, I have recently just begun work on a new book on Lincoln, the Civil War and the Constitution – and I expect I will have more to say about this and other interesting Lincoln-era constitutional controversies in that volume. Stay tuned!)

Moore: What are a few things you hope your readers will gain by reading this book?

Paulsen: Our hope all along is that this book would inform and rich the citizenry with enhanced understanding of the Constitution – its history, the meaning of its core provisions, and the historic controversies and cases surrounding its interpretation over the years. Americans need to understand their Constitution! So many Americans delight in the Constitution, and (we have found) have a deep thirst for more knowledge about it. This book, we hope, opens a door. It provides a foundation of basic constitutional knowledge and history in a readable, almost story-like form. (One prominent reviewer referred to it as an action-adventure story about the Constitution!) It demystifies and hopefully clarifies a few things. It explodes a few myths. It offers views, introduces controversies, and frames debates for the future. Our hope is that many readers will want to engage these issues and join in the debates over the proper application of what is, after all, their constitution.

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