In 2005 the President nominated for the Supreme Court a distinguished lawyer who had

not previously been a judge or a scholar. The Chairman of the Senate Judiciary Committee
suggested that such a nominee would need a “two-week crash course” in constitutional law
before testifying at the hearings. A national newspaper asked Professor Walter Dellinger
to write an essay on what the content of a two-week crash course should be. Before his
response could be published, however, the nomination was withdrawn.

Dellinger’s surprising conclusion was that it actually takes only minutes, not weeks, to
master the essence of all American constitutional law. As background to the panel’s
discussion of this Term’s cases and for the benefit of those busy attendees who would
like to be constitutional scholars, but have only a few minutes to spare, we provide below
Professor Dellinger’s Unpublished Short Course in Constitutional Law.

CONSTITUTIONAL LAW: THE FIVE-MINUTE CRASH COURSE

The basic rule of American constitutionalism is this: Before the government can forbid
you from doing anything, it has to provide a reason. “Because we say so” does not count
as a reason. To limit ordinary liberties (like selling eyeglasses) most any reason is good
enough. To restrict fundamental liberties (like using birth control while having sex),
however, the government must have a really important reason. (Getting to decide which
liberties are “fundamental” is one of the cooler parts of being a Justice.) Under the Equal
Protection Clause, even if the government has a plausible reason for putting a burden on
you, it also has to explain why it treats other people better. If the Justices suspect that the
government may simply dislike people like you, they will demand an especially convincing
explanation for the different treatment. And if the Government wants to interfere with your
liberty by actually taking your house or property it has to pay you “just compensation”; and
-- even if it’s ready to fork over compensation -- the town can’t take your stuff at all unless
it’s going to use it for a “public purpose.” (Current hot topic: Is forcibly taking old people’s
homes to make way for a spiffy new Wal-Mart really a “public” purpose?)

Establishment of Religion is really simple: Government prayer bad; private prayer good.
(The only hard cases come when a citizen uses government property or public funds for
religious purposes, and the facts make it difficult to tell whether it’s the government or the
private citizen actually making the religious choice.) As for Speech, you can generally
say whatever you want, but not necessarily where, when or how you want. It’s also ok
for the government to regulate “expressive conduct” as long as the government is going
after the “conduct” part and not the “expressive” part. Also, you have no right to dance
naked unless you are a really good dancer, in which case it becomes art. As for the First
Amendment’s so-called “reporter’s privilege” to protect confidential sources, you can skip
that -- it’s taught with reverence in journalism schools, but judges never heard of it.

Congress has the power to ban anything from crossing a state line for any reason. And
Congress can regulate any activity that’s economic even if it’s wholly within one state.
But if it’s not economic, and it doesn’t cross state lines, then Congress cannot regulate it
-- unless five Justices think the regulation in question is a really, really good one. This
national power is limited to some extent by State Sovereignty, a doctrine traditionally
invoked by those on the right to insulate conservative Red State practices from federal
regulation. This doctrine is now eyed fondly (but warily) by liberals seeking to protect Blue
state positions on gay marriage and medical marijuana. Rule of thumb: State sovereignty
claims are more likely to be upheld by the current Court when advanced by Alabama than
when put forward by Oregon.

Finally, one needs to understand Judicial Restraint, the doctrine that a judge should
avoid “legislating from the bench” and should instead strictly apply the text of the
Constitution “exactly as written.” This approach is very appealing to those who have never
read the Constitution. But see, e.g., the 14th amendment, which requires judges to protect
(without any further elaboration) “privileges or immunities of citizenship” and “liberty”
and “equal protection” -- phrases so open textured that they make the “apply exactly as
written” mandate somewhat unhelpful.

Senators especially like it when a nominee says a judge’s role is just to be an “umpire.”
But broad constitutional phrases are different from sports rules, so a judge would be like
an umpire only if the game, instead of having a strike zone and a set number of balls,
strikes and outs provided instead that “each batter shall have a fair chance to hit the ball”
and “each team shall have a reasonably equal opportunity to score runs.” Key language of
the Constitution is that broad, meaning that men and women appointed to the bench must
necessarily exercise judgment. Which is, of course, why they are called judges, and not
umpires.