Advanced Con Law Seminar: "Constitutional Silences"

Advanced Con Law Seminar: "Constitutional Silences"

Professor Laurence Tribe
Fall 2016 seminar
W 3:00pm - 5:00pm in WCC Room 3012
2 classroom credits

Prerequisites: By permission of instructor.  No prior courses, but general familiarity with U.S. constitutional doctrine and/or history would be a big help.

Enrollment: Enrollment will be limited to 12 and will be by permission of the instructor, based on written applications that include (1) the applicant’s CV and unofficial list of courses and instructors, including those the applicant plans to take concurrently with this seminar in Fall 2016, and (2) a brief (no more than 1 or 2 double-spaced pages) statement of interest. No auditors will be allowed.

All applications must be submitted electronically to Kathy McGillicuddy (kmcgill@law.harvard.edu), with copies to Professor Tribe (tribe@law.harvard.edu). Only students who are prepared to make a firm commitment to enroll in the seminar in the event they are admitted should apply. Students who have already applied this spring or summer without focusing on this requirement should either withdraw their applications or reapply by the deadline of Aug. 26, indicating acceptance of this condition.

Deadlines: Final seminar applications are due electronically no later than 4 PM on Friday, August 26. Applicants should submit their materials as attachments, both to me, tribe@law.harvard.edu, and to my faculty assistant, Kathy McGillicuddy, kmcgill@law.harvard.eduThose who are admitted will be notified by Friday, September 2.

Exam type: No exam.

Required texts: None. All assigned materials will be posted online and/or available in hardcopy form at Hauser 418.

Other course requirements: In addition to attending and participating in every seminar meeting, each student will be responsible for writing four very short papers (5 double-spaced pages max for each paper) during the course of the seminar. The paper topics will be assigned a week before the papers are due. All papers will be due two days before the session in which they will be used to facilitate class discussion of the assigned materials.

No papers will be due on Monday Sept. 5 because the Sept. 7 class will be devoted to overview and introduction. Each paper must be paginated for ease of reference and must be submitted by email as a Word document circulated to every student in the class as well as to Professor Tribe and to Kathy at the email addresses listed in paragraph 4, above.

Course contents: In the beginning, there was silence. In the end, there will be silence. Without silence, there is no sound. Without sound, we can’t define silence. Few fortune cookies reveal messages worth saving. An exception is one contained in a cookie at a much-frequented Chinese restaurant in Cambridge: "Everything that we see is a shadow cast by that which we do not see." It turns out that the author of that haunting image wasn’t some anonymous writer laboring away in some fortune cookie factory and destined to remain permanently hidden from view, but none other than Dr. Martin Luther King Jr., in an early sermon reprinted in his 1958 book, The Measure of a Man.

In Philosophical Investigations §6, Wittgenstein said: “Uttering a word is like striking a note on the keyboard of the imagination.” In that sense, silence is a musical rest.

The teacher of this seminar wrote in a 1982 article that, unlike legal texts, “silences resist convincing translation even with the generous aid of all available cultural and social cues to meaning.” “Yet,” the article concluded, “silences enjoy a compensating feature: . . . their potential determinacy. On any given occasion and with respect to any given subject, after all, there are many ways to speak, and much that might be said, but only one way to be silent.” This seminar is dedicated in part to refuting that conclusion by uncovering – and exploring through our conversations – the many respects in which that statement was off-target.

In studying several clusters of judicial decisions, mostly by the U.S. Supreme Court, and in examining occasional policy proposals framed in light of those decisions, we will be sketching an implicit syntax of the unspoken and the invisible – the "dark matter" and "dark energy" of constitutional (and, to a lesser degree, statutory) interpretation.

The topics we take up by investigating the assigned materials will hopefully enable seminar participants to bring their own sense of order to the cacophony of silences: the silences of ignoring or overlooking, the silences of supposing or taking for granted, the silences of deliberately or inadvertently omitting. But, to avoid having the seminar float off into unmoored theorizing, our conversations will be anchored around actual court decisions and the doctrines and principles they exemplify and help to define.

The substantive issues around which the twelve seminar sessions will be organized will include rulings and proposals about national v. state power; the rights and privileges of states and of individuals with respect to such matters as firearms ownership and gun safety (including the #NoFlyNoBuy controversy); the allocation of governmental powers over immigration; LGBT rights; freedom of speech and religion; the many dimensions of “privacy”; government’s role with respect to medical treatment and health care coverage; and the role of the law and legal institutions with respect to race.

As we explore the types and meanings of silence in those disparate areas, we’ll weave in such themes as levels of generality in the definitions of rights and powers; the principle of constitutional avoidance; relationships among silence, vagueness, and ambiguity; issues raised by the delegation of lawmaking and other governmental powers; questions posed by claims to deference on behalf of lawmaking and administrative bodies and of direct popular majorities;  the asserted virtues and possible vices of judicial minimalism, incrementalism, restraint, and activism; and the many versions of originalism, living constitutionalism, and popular constitutionalism.

Detailed Syllabus: A full syllabus of the course assignments will be available by August 15 and will be circulated to all who have applied to enroll by then.

In broad overview, the first two sessions will provide an introduction to the course; the third will focus on incompletely specified structures and unlisted rights; the fourth and fifth will deal with links between and among rights; the sixth and seventh will address liberty, equality, and dignity; the eighth and ninth will focus on race; the tenth will be devoted to speech and religion; the eleventh, to guns; and the twelfth to immigration, naturalization, and the structure/rights interface.

Weekly Assignments: A separate document posted on the course website will lay out the assignments for each of the seminar’s twelve sessions, specifying when each student’s four papers will be due, when each will be the subject of seminar discussion, and what each will be asked to address.

Note: No class on Sept. 28 or Nov. 30. Makeup classes from 3 to 5 PM on Oct. 14 and 21.

Subject Areas: Constitutional Law & Civil Rights