Why the canon should be expanded to include insular cases and the saga of American expanionism?

• Author: Levinson, Sanford

1. INTRODUCTION: THE "CANON"

   All disciplines are constituted by their canons--that series of "set texts" that comprises the core materials of any given academic area. As Jack Balkin and I have written elsewhere, debates about the canon are rife in many contemporary disciplines, most notably, perhaps (at least in terms of public attention), in English and American literature, but most certainly including legal studies.(1) One can ask very generally what legal materials all law students should be exposed to, or one can ask the more limited question as to what students studying constitutional law should be expected to read. That is, what should constitute the canon of constitutional law?

   Even this way of putting the question may be too broad, though, for we argue that one cannot begin constructing a set of canonical materials without first addressing the purpose of the proposed canon. Is it, for example, to teach students within the legal academy those cases (and other materials) most likely to structure their own practice of constitutional law, assuming, contrary to fact, of course, that many--let alone most--students will ever find themselves litigating a constitutional issue? Still, one could begin with the "legal fiction" that students must be aware of the most lively issues currently before courts and of the various doctrines likely to prove interesting (or at least useful) to adjudicators called upon to decide cases involving those issues. Or, again focusing on the specific needs of students preparing to become practicing lawyers, should we pick materials that are especially useful in teaching the arts of lawyering, i.e., those cases that offer especially useful examples of legal reasoning that can serve as models of the lawyers' rhetorical arts? Even cases involving no-longer-live issues could, nonetheless, serve as paradigms of such reasoning.(2) Both of these criteria, whatever their differences, involve candidates for what we call the "pedagogical canon,"(3) i.e., the preparation of students for their professional lives as practicing lawyers.

   But one might have aims other than preparing persons, even those persons called "law students," for the actual practice of constitutional law.(4) After all, many undergraduate and graduate students take courses in constitutional law without intending to become lawyers. Indeed, some law students even attend law school without envisioning themselves as future legal practitioners. Yet all may well view some familiarity with the materials of American constitutional development as part of what constitutes their being educated citizens. And "official" lawyers may see themselves (and are often treated as) charged with the special task of serving as "delegates" of a sort from the particular world of law to lay outsiders, as when they are asked to give "Law Day" speeches to local schools or, more commonly, to opine at dinner parties about the propriety of what the Supreme Court is doing these days. Their teachers are thus charged with the task of identifying the canon of such materials. We label this the "cultural literacy canon."(5)

   Finally, there is what we denominate the "academic theory canon," by which we identify those crucial episodes within American constitutional history that must be confronted by legal academics who wish to be taken seriously within the community of constitutional scholars.(6) Here, one is not at all concerned with what is best for one's students, treated either as preprofessionals or future citizens, but, rather, what is best for oneself as someone who wishes to establish his or her presence within an ongoing conversation among trained academics.

   I want to argue that The Insular Cases(7) deserve an important place within each of these canons, though, as one might expect, the reasons are different depending on the canon to which one is referring. I should confess that I speak a bit with the zeal of a convert, for prior to an April, 1998, Yale Law School conference on Puerto Rico that I attended, I had never read the cases.(8) Neither in my graduate studies at Harvard prior to writing a dissertation on Justices Holmes and Frankfurter nor at the Stanford Law School, where I received my J.D., were they ever assigned; I have also managed to teach constitutional law for almost two decades at the University of Texas (and co-edit what I immodestly believe is a first-rate casebook in the field(9)) without filling in this blank. One factor encouraging this public confession is that conversation with other adepts in constitutional law, including editors of competing casebooks, leads me to believe that my story is not in the least unusual.

   At the present time, few cases can be said to be less canonical, regardless of criterion, than Downes (or any of the other Insular Cases).(10) Balkin and I present a practical test of what is, or is not, a canonical case: Just play the wonderful game, "Humiliation," invented by the British novelist David Lodge as part of his academic novel Changing Places, in which one wins points by naming, in a group of presumably sophisticated fellow academics, books that one has not read that have, in fact, been read by the rest of the group. The "winner" of the game, in the novel, was a hapless, overly competitive, untenured professor of English who could not resist using Hamlet as his trump.(11) The constitutional law equivalent would presumably be the admission that one had never read McCulloch v. Maryland.(12) Somewhere there may be a legal academic who has never pored through this most important of all constitutional law opinions, but one would truly risk one's reputation (and one's job) by admitting it. That is the operational test of a case's being canonical. The Insular Cases, on the other hand, might be taken, at least at the present time, as exemplifying the "anti-canon" Oust as matter is complemented by anti-matter) insofar as no ostensible constitutional scholar risks sullying his or her reputation--save, presumably, in Puerto Rico itself!--by admitting to one's ignorance.

   Evidence of this proposition can be found not only in personal anecdote. Just look at contemporary constitutional law casebooks or treatises, where one will find almost literally no mention at all of the cases. No casebook that I have examined has even the briefest reference to the cases and to the issues raised by them. One will search in vain for index entries to, say, "Puerto Rico," "territories," or "expansion." In addition to the "standard" constitutional law casebooks, I searched as well Derrick Bell's Race, Racism, and American Law,(13) inasmuch as one might well view The Insular Cases as central documents in the history of American racism. It was absent there as well. Indeed, the principal reason for my "almost" in the first sentence above is a two-page discussion, in John Nowak's and Ronald Rotunda's hornbook on constitutional law, of "To What Extent Does the Constitution Follow the Flag; Does the Constitution Apply to the Territories?"(14) Professor Laurence Tribe also cites Downes in the second edition of his magisterial American Constitutional Law, but it occurs at the conclusion of a single footnote concerning congressional power over aliens.(15) There was, as implied, no mention at all in the first edition, as is the case in the competing treatise authored by Erwin Chemerinsky.(16) The cases would never constitute an intelligent play in "Humiliation," assuming there is nothing truly unusual about the group within which one is playing (such as their being Puerto Ricans).

   It is more than time to change this situation. I have played my own part by adding a new section, "American Expansionism, Race, Ethnicity, and the Constitution," to the new edition of Processes of Constitutional Decisionmaking,(17) including a 10-page excerpt from Downes. My hope is that its inclusion will come to be regarded less as yet another idiosyncracy of our book (which, in the past, included taking seriously the Second Amendment), but, rather (as is perhaps occurring with the Second Amendment), something to be emulated in our competitors as well. Perhaps I should mention as well that I have now taught Downes in introductory courses at both the University of Texas and the New York University schools of law, sparking in both instances good discussions among students.(18) Thinking about the issues raised in that case has also led me to offer, again for the first time, a seminar on "The Constitution and American Expansion," a topic that is remarkably understudied by constitutional scholars, much to our detriment.

2. WHAT CAN DOWNES v. BIDWELL TEACH?

   So let me now try to answer the central question: What justifies imposing upon students, especially first-year law students, even an edited version of a very, very long case dealing, at a formal level, with the meaning of Article I, [sections] 8, clause 1 and its requirement that "all duties, imposts, and excises shall be uniform throughout the United States"? For those who have not read the decision, the conclusion of the Court, in two plurality opinions, is that Puerto Rico is not within "the United States" even though it is, as decided in another of the "Insular Cases,"(19) certainly not a "foreign country." Instead, it is a territory, and Congress has the power to regulate territorial tariffs in a way that would be absent were Puerto Rico a state. To reduce the case to its specific holding about a notably obscure clause of the Constitution is, however, to miss the forest for the trees: The importance of the Cases did not lie in the particular resolution of tariff policy, but, rather, in deciding whether the United States could emulate the European nations and conquer and possess colonial territories. And what it meant to be such a territory--the term that comes out of Dowries is "unincorporated territory," in contrast to "incorporated territories" like, say, the Dakotas, Alaska, Hawaii, and the like--is...