AuthorKammer, Sean M.

Early in the morning of January 6, 2021, I sat at my computer, cup of coffee in hand, to make final preparations to teach my first constitutional class later that morning. I had been selected to teach the course weeks earlier after the unexpected retirement of one of my esteemed colleagues. I felt a mix of fear and excitement--mostly fear. At the time, like many, I was also keeping an eye on developments in the national capital. As I reviewed my notes for the last time, I saw that President Donald J. Trump used his Twitter account to publicly encourage Vice President Michael R. Pence to show "extreme courage" and to send peoples' votes "back to the States" so that "WE WIN." (1) I also knew that some of Trump's most avid supporters were already crowding into an area near the White House for a midday speech and rally. This is what I knew as class began.

Beyond introducing students to the basic structure of the course and my general expectations, my goal for the first class was to get students thinking about what power the Constitution possesses. We began our discussion by using the text of the Constitution to explore how it might be applied to resolve a question I thought highly relevant to the day's proceedings in the national capital. That question was the extent of Congress's powers to scrutinize the legitimacy of certified votes it receives and ultimately not to count them if it determines the votes (or their certification) are in some way flawed. To answer that question required us to consider an additional question of what it means for votes to "be counted," as the Twelfth Amendment provides. (2) Students rightfully surmised that this seemingly simple question was a trap.

Using apples as an analogy, I then asked the class what it would mean if they worked for an orchard and were asked to count the number of apples they had placed in a basket so that they may be paid on a per-apple basis. Silence. I followed up with a more specific question of whether the act of counting apples required them, as either employees or independent contractors, to determine whether each thing in the basket was, in fact, an "apple." They seemingly agreed that it did. I then asked whether they should properly exclude from their count things that were admittedly "apples" but were also, in their judgment, rotten or otherwise inedible. In other words, is it presumed in the directive to count "apples" that said "apples" be edible? As students pondered this question, I made the link to the Twelfth Amendment and the counting of electoral votes more explicit by asking a related question: inasmuch as Congress has the power to reject certified votes from their "count," must Congress have to make at least some evidentiary showing regarding the "rottenness" of the certified votes it chooses to reject? We pondered that question for a bit before I closed with one more question. Beyond the substantive question of what it means to "count" votes, there lingers the perhaps more important question of who gets to decide what it means for votes to "be counted." Is that question to be answered by each individual legislator? By the courts? By each of us individually?

As might be obvious by now, the point of the above class discussion was not to come to any definitive answers but rather to introduce students to the idea of uncertainty and contingency in constitutional law. It was to introduce them to the reality of how little the text of the Constitution itself answers. It was to have a conversation with them that in some admittedly imperfect way reflected the recursive process that ultimately constructs--and continually reconstructs--the body of rhetoric we call "constitutional law." This body of law, after all, is primarily various opinions and arguments--by judges, attorneys, scholars, politicians, and laypeople--about what the Constitution means. It is a recursive process in that our very talking about what the Constitution means comes to determine what it means, and the process repeats ad infinitum. It is ongoing. The students were already creators of the very thing they were here to study. (3) How fun!

For most everyone, January 6, 2021, will long be remembered for reasons other than it being this professor's first time teaching Constitutional Law. It will be remembered as a day the process envisioned by the Twelfth Amendment--and indeed the peaceful transfer of power so essential to republican self-government--was put to the test. Shortly after we ended class, Trump began his speech to as many as 30,000 eager supporters, most maskless, who had gathered on the Ellipse outside the White House to help him "stop the steal" and "save America." (4) In his speech, Trump repeated his debunked claims that the election had been "rigged" and stolen from him by an assortment of actors, including "big tech," "fake news," and "emboldened radical-left Democrats." (5) He insisted that Pence, if he were to refuse Trump's demands for him to send the certified votes back to the states, would be failing in his duty to "protect our country, support our country, support our Constitution, and protect our Constitution." (6) He implored the audience that "if you don't fight like hell, you're not going to have a country anymore," and encouraged them to march to the Capitol so that they might give Republicans "the kind of pride and boldness that they need to take back our country." (7)

Fight like hell, they did. Shortly before Trump finished his speech, just after 1:00 p.m. Eastern Standard Time, Congress convened to count the electoral votes and presumably to confirm former Vice President Joseph R. Biden Jr.'s victory. At that time, Acting Secretary of Defense Christopher C. Miller received reports of demonstrators moving on the Capitol. Within a half-hour, the Capitol Police had ordered the evacuation of two Capitol buildings, and officers outside the Capitol had been forced to retreat up the Capitol's steps. Shortly after 2:00 p.m., insurrectionists broke a window on the exterior of the Capitol and began entering through the broken window, some chanting to hang the vice president, causing the Senate to recess and Senators to evacuate. Not long after, the House of Representatives followed suit. As this was happening, Trump supporters continued their assault on law enforcement outside the Capitol. One insurrectionist sprayed Officer Brian Sicknick with a chemical substance. He died the following day from a stroke. Another officer, D.C. Police Officer Michael Fanone later recalled being "grabbed, beaten, Tased, all while being called a traitor...." (8) Fanone felt "at risk of being stripped of and killed with [his] own firearm..." as the crowd chanted "'[k]ill him with his own gun.'" (9) Capitol Police Private First Class Harry Dunn reported that the crowd chanted racial slurs at him. (10) Capitol Police Sergeant Aquilino Gonell described being crushed by a stampede of rioters: "I could feel myself losing oxygen and recall thinking to myself, 'This is how I'm going to die, defending this entrance....'"" Hours passed before order was restored, and the insurrectionists were removed from the Capitol and its surroundings.

For whatever else these events accomplished, revealed, caused, or meant, they also exemplified some key themes I hoped to develop throughout the semester. To start, they exemplified the degree to which the meanings of even the seemingly straightforward constitutional provisions (such as the counting of votes) can still be contested. As a class, we read Professor Mark V. Tushnet's The U.S. Constitution and the Intent of the Framers to help with our first week's discussions. (12) While this piece is ostensibly a critique of 'originalism' as an interpretive philosophy, my goal in assigning it had nothing to do with originalism. (13) It was rather to get students to think critically (at the meta-interpretive level) about all fundamentalist approaches to the Constitution. (14)

With the events of January 6th as a backdrop, we had the opportunity as a class to consider one of the fundamental problems with originalism, according to Tushnet, namely the impossibility of finding a single operative original understanding or intent that can determine the answer to questions raised today. First, people of the founding generation likely had divergent understandings of the constitutional text, if they were even asked. That people in the United States can hold such divergent views of what the Constitution means was indeed on full display on January 6th. Why would we presume the past was so radically different from the present? As it came to the founding generation, there were substantial divisions and disagreements among "the people" as a whole, as well as among those whose views were most influential. This requires an originalist to decide whose views count. Additionally, we face issues today that those who ratified the Constitution never even contemplated, much less expressed any clear intent or understanding as to their proper resolution. They thought about particular issues that were relevant to them. Thus, to determine what those people thought (or would have thought) regarding different issues requires inferences to be drawn, and any inference is inherently tentative and debatable. For this last point, Tushnet showed two radically different interpretations of the same evidence regarding an "original" intent or understanding regarding the Fourteenth Amendment's application to public education, both entirely plausible and defensible. (15)

Again, the purpose here was not to criticize originalism as a judicial methodology but rather to think critically about all fundamentalist claims regarding constitutional interpretation. (16) In his piece, Tushnet also, for example, criticized Justice William J. Brennan Jr.'s "living Constitution" judicial philosophy for failing to constrain judges in any meaningful way, just as originalism also fails. (17) The task...

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