Rock 'n' roll law school.

• Author: Chen, Jim

ROCK 'N' ROLL LAW SCHOOL

This is an article about rock `n' roll.(1) (It started out as an article about federalism,(2) but the devil fools with the best laid plans.(3)) You must be asking yourself, why would anyone try to write the prototypical article on "law and rock `n' roll"? David Bowie knows why; there's a fear that lurks in the heart of every junior professor: "Five years, that's all we've got. Five years ...."(4) Besides, "despite all the amputations" in the tenure process, "you could just dance to a rock `n' roll station" in the Velvet Underground.(5)

The Supreme Court is always coming up with new answers to that burning question, "What cha go'n' do to get into another one of these here rock `n' roll songs?"(6) The history of the Court's trucking deregulation cases can be summarized as a step down from "Truckin'" to "Runnin' on Empty."(7) Need a thumbnail sketch of BFP v. Resolution Trust Corp.?(8) Ask the Spin Doctors: "If I had a dollar I might give you ninety-nine."(9) The Court's CD correction is so shiny and new; pretty soon they'll be asking, "Is it you or your parents in that income tax bracket?"(10) So many issues,so little time. What's a hip law prof to do?

Here comes Constitutional Commentary to the rescue. Maybe it's Soul Asylum. Maybe it's Bob Dylan. Maybe it's the artist formerly known as Prince. (Then again, let's hope not. One thing's for sure: those Minnesota professors sure do dig pop culture.(11) In honor of the opening of the Rock `n' Roll Hall of Fame, maybe they'd publish a piece on constitutional rock-ology, on rock analysis of constitutional law.

Rock `n' Roll, Rock `n' Roll, Rock `n' Roll Law School.(12) That's the place where first-year students can learn the basic project of constitutional law from Blues Traveler:

Because the hook brings you [rights],

I ain't tellin' you no lie

The hook brings you [rights]

On that you can rely(13)

And when overambitious students begin to heed the siren song of foundationalist legal reasoning and to falter on the rocks of formalism, pragmatic professors at the Rock, `n' Roll Law School can give the Indigo Girls' advice: "The less I search for some definitive, the closer I am to fine."(14)

For their part, the Justices know good rock music when they hear it.(15) In fact, the "Pretty Woman" decision rendered during the Supreme Court's 1993 Term makes this article and much of "law and rock `n' roll" possible.(16) Mercy!(17) And that very Term, the Justices took judicial notice that Creedence Clearwater Revival is "one of the greatest American rock and roll bands of all time."(18)

John Fogerty's constitutional law credentials, however, are somewhat more suspect. Let's ask Proud Mary what the Constitution according to Creedence would say:

If you come down to the river

Betcha gonna find some people who live

You don't have to worry tho' you have no money

People on the river are happy to give.(19)

There may not be a poorer description of the wet and wild world of the Supreme Court's dormant commerce clause,(20) "navigation servitude,"(21) and interstate boundary cases.(22) Like the Supreme Court's own decisions on baseball,(23) Fogerty is out in center field.(24) Where have you gone, Joe DiMaggio?(25) Pink Floyd comes much closer to the riparian heart of matter: "money--share it fairly but don't take a slice of my pie."(26)

Sometimes rockers state the obvious. "We want the air-waves"(27) is a blunt digest of Metro Broadcasting, Inc. v. FCC.(28) And it takes an overrated band like Genesis to overstate Plyler v. Doe:29

It's no fun being an illegal alien, I tell ya

It's no fun being an illegal alien, no no no no no

It's no fun being an illegal alien, I mean it when I tell ya that

It's no fun being an illegal alien,

An illegal alien, O.K.(30)

At the other extreme, some rockers come closer to stating the truth than anyone ever suspected. When Pink Floyd asked Muhammad Ali whether he had "exchange[d] a walk-on part in the war for a lead role in a cage,"(31) only Bob Woodward, Scott Armstrong, and others privy to the Burger Court's deliberations knew "how close [Ali] had come to going to jail for failing to report for military duty in Vietnam."(32)

Alas, truth in constitutional law is often found between rock and a hard place, not in the lyrics themselves. And British rock `n' roll artists are at least as prone to misstate the law as their American counterparts. Pete Townshend might be able to see for miles,(33) but not when it comes to constitutional law. "I hope I die before I get old"(34) is an attitude the Supreme Court doesn't countenance in age discrimination cases decided under the equal protection clause.35

Speaking of age, in a Court where the currency of constitutional stare decisis is "power, not reason,"(36) the junior Justices often take one side in the old rivalry between the Beatles and the Rolling Stones. Jagger, not McCartney, is the Court minstrel. Rather than persuading themselves to "let it be,"(37) today's Justices sing "T-i-m-e is on [our] side" whenever they grow impatient with the constitutional relics of the Warren and Burger Courts.(38) No, I won't still love you when you're sixty-four.(39) In 1985, then-Justice Rehnquist's count of his antagonists' ages gave him "confiden[ce]" that meaningful judicial review under the Tenth Amendment would "in time again command the support of a majority of [the] Court."40 And after Gregory v. Ashcroft,(41) New York v. United States,(42) and even United States v. Lopez,(43) you gotta admit "we have been this way before."(44)

Fervent dedication to the religion clauses often gets the Court into quite a bind.(45) By suggesting over time that Lemon(46) was dead,(47) the Court all but invited public schools to say a little prayer.(48) Well, maybe not.49 All the same, the Justices still rock around their Christmas tree,(50) even if that...