Jack Balkin is a very fancy professor of constitutional law at a very fancy law school. One of his blog posts today is a classic example of why neither you nor I am a fancy professor of constitutional law at a fancy law school. You see, at the end of his post, Balkin makes a very simple (and I think correct) point:
If for-profit corporations have free speech rights, it is not because corporations are persons. It is because it makes sense to give the people that control them (who are not necessarily their owners) the power to use the corporate form to amplify their voices. Conversely, to the extent that it makes sense to limit the speech of for-profit corporations, it is not because constitutional rights of corporations are violated; it is because the rights of the people who control the corporations should not extend so far.
Well, duh. This is not new information. Nor would it justify an appointment as a fancy professor of constitutional law at a fancy law school. Even us corporate law professors get it.
No, what makes one eligible to be a fancy professor of constitutional law at a fancy law school is how one gets to the right answer. Getting there the obvious way won't cut it. Instead, you've got to have some really braniac way of getting there that no one else would have thought of. Using Icelandic blood feuds to explain class action suits or invoking Wittgenstein to explain the UCC, and so on. Ideally, it should be abstract, erudite, and so off the wall it never would have occurred to anybody who actually works in the field. (BTW, telling us what Rawls or Dworkin would think about your subject is now incredibly passe. Even student notes at bottom tier law schools can do that these days.)
In Balkin's case, it's the Thirteenth amendment and "the (in)famous 1830 case of State v. Mann, the North Carolina Supreme Court, in an opinion by Judge Ruffin, held that the owner of a slave had complete authority to use violence against a slave, even to take the slave's life." All of which, to him, "suggests an interesting perspective on the First Amendment rights of for-profit corporations."
To which my immediate reaction was, "WTF?" Followed by, "no, it doesn't."
But it's precisely the sort of thing that passes as top notch legal scholarship these days. Blow that idea up into a 35,000 word article and you too could be a fancy professor of constitutional law at a fancy law school. Except that it never would have occurred to you in the first place. But don't feel bad. It never would have occurred to me either.
