Vox Populi: The Science of the Constitution

From Sonu Bedi

As a result of the decision of the Women’s Health Organization Dobbs v. Jackson, revoking Rowe v. Wade, the issue of abortion will be played out in the United States. This will happen not only as a political issue – what the US legislature decides to do – but also as a legal issue under state law.

There are several states that have an explicit right to privacy in their state constitutions – Florida is such an example. So the parties are trying to challenge abortion restrictions based on the state constitution. This court battle will take place as a matter of state law. This is part of a broader way in which Dobbs’ decision (like other Supreme Court decisions) informs science about the Constitution.

This approach guides my classes, where students approach the document as scholars, seeking to understand how the document arranges and limits public authority. Often those who teach the Constitution ask what is wrong or right in the document or what the Constitution should say. That is, they teach the document, as a constitutional lawyer would do, saying that some cases are wrong and others are right. This kind of approach invites the very kind of ideological division, which obscures a clear picture of what the Constitution is and how it works.

In contrast, my classes in Dartmouth teach our students not to be constitutional lawyers, but to be constitutional scholars. And those who continue to practice law will be more effective once they understand the science of the document. A scholar of the Constitution takes the law – and in turn the document – seriously as the object of study.

That’s why I hand out pocket constitutions on the first day of school. Students seek to understand how this document works, what its main characteristics are and how it has remained in force since 1789. This non-ideological approach is from the point of view of the political scientist of the Constitution.

Once students begin to look at our highest law on earth from a scientific point of view, they learn that one of the main features of the document is the practice of disagreeing with the Supreme Court. This disagreement – which students learn is something that began at the founding – is not a mistake, but a characteristic of our national republic. This disagreement is about whether the document affirms a modern or traditional republic.

The modern republic focuses on the nation as a whole and the importance of the document as dynamic. The traditional republic focuses on individual countries and the importance of the document as fixed. Students learn in class that both republics are part of the document.

That is why disagreement is a characteristic of the science of the Constitution. And we see this disagreement when judges disagree on abortion, religious freedom, guns, COVID’s federal policy, and a number of other issues. At present, the majority of judges in the Court consider the document to be a traditional republic, and Dobbs’ decision informs this idea, where our fundamental freedoms are historically fixed, leaving the issue of abortion to play in each country.

Those who disagree in this case, Dobbs, see the document as a modern republic, where our fundamental freedoms are dynamic and the document is for the nation as a whole.

Ultimately, seeing this disagreement as a feature of the document allows us to view disagreement in a more generative rather than polarized way. This requires us to approach the Constitution as a scientist.

Son BediProfessor of Law and Political Science Joel Parker of 1811 and director of the Hans’ 80s and Kate Morris Institute of Ethics, was in the early stages of writing a textbook, The science of the constitution.

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The voice of the people is the Dartmouth News opinion page for comments written by members of the Dartmouth community that aim to inform and enrich the public conversation.

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