The Weeds of Con Law

I’ve never been much of a con law junkie. The field sits at an unpleasant intersection of intense partisan political pressure and excessive academic attention. Too many lay observers assume that any decision they disagree with is a cynical and lawless ploy; too many scholars split hairlets arguing over which theory best justifies decisions everyone agrees with. Spend too long debating the same few words, and a version of the madness that James Thurber described sets in:

I fell to repeating the word “Jersey” over and over again, until it became idiotic and meaningless. If you have ever lain awake at night and repeated one word over and over, thousands and millions and hundreds of thousands of millions of times, you know the disturbing mental state you can get into. I got to thinking that there was nobody else in the world but me, and various other wild imaginings of that nature. Eventually, lying there thinking these outlandish thoughts, I grew slightly alarmed. I began to suspect that one might lose one’s mind over some such trivial mental tic as a futile search for terra firma Piggly Wiggly Gorgonzola Prester John Arc de Triomphe Holy Moses Lares and Penates. I began to feel the imperative necessity of human contact.

These forms of madness, however, are primarily confined to the big and enduring controversies of constitutional law. The Constitution also contains plenty of other, more endearing provisions. (For pure phrasal catchiness, I’m fond of the prohibitions on titles of nobility and corruption of blood.) Precisely because they’re less-litigated and less all-consuming, it becomes possible to have polite and rational conversations about what they actually mean and require.

The last two months have been especially good at kicking up genuine, interesting issues from the forgotten Constitution. Are Barack Obama and John McCain “natural born Citizen[s]” of the United States and therefore eligible to be President? Can Hillary Clinton be appointed Secretary of State, even though “the Emoluments whereof shall have been increased during” her time as Senator? Does George W. Bush’s “Power to Grant Reprieves and Pardons for Offenses against the United States” allow him to retract his attempted pardon of Isaac Toussie? And can the Senate, as “Judge of the Elections, Returns and Qualifications of its own Members,” refuse to seat Roland Burris?

I’d say yes, yes, it depends, and no. But I can’t tell you what a relief it is that at least some of the arguments about these issues are being joined on the basis of Constitutional text and structure, judicial precedents, and historical practice, rather than obvious ideology or grand high idiosyncratic theories.