Exploring the Affective Constitution (Case Western Reserve University School of Law Professor Melvyn R. Durchslag) (Testimonial‪)‬

I'm delighted to have this opportunity to pay tribute to the work and career of Mel Durchslag. You have a wonderful tradition for celebrating faculty retirements, but it creates a paradoxical situation for the speaker: I'm here to honor a man that I've only recently had the pleasure of meeting, and to celebrate his career before a group of people who have known and valued him for decades. This is no small order. But I think the least presumptuous way to offer this kind of tribute is to talk a bit about Mel as he is reflected in his scholarly work--the Mel who leaps out of the pages of law reviews. Those of you on the faculty can supplement this, in your own minds, with your own knowledge of Mel as a colleague and human being. Then I'd like to pay a more indirect tribute, by talking about some work that combines a recent interest of mine, in the role of emotion in law, with a longstanding interest of Mel's, in the Constitution. One of the most interesting parts of preparing this lecture has been having the opportunity to spend some time with Mel's work. When I first started reviewing his body of articles, I was amazed to find that one person had written in so many different doctrinal areas. I have a high threshold to this kind of variety because I've had a somewhat peripatetic scholarly life myself, but this was really something--Eleventh Amendment immunity, constitutional welfare rights, federalism and the Commerce Clause, individual rights, voting rights, even local government law, and taxation. And all of it both tightly and imaginatively argued: to take one example, I've taught Shaw v. Reno (1) --a case in which Mel and I both have an interest and which I'll be discussing later--for years in my voting rights class, but it never occurred to me to compare it with Batson v. Kentucky. (2) It did, however, occur to Mel, and, as a result, I learned a new way of thinking about the harm the Court sought to identify in Shaw. So Mel sets a high bar for legal argumentation, one I only hope I can meet in my comments today. What I'd like to do is to pursue Mel's interest in constitutional law, through the lens provided by recent work on "law and the emotions." (3) Exploring the "affective Constitution" seems like an appropriate way to honor someone who's been described to me, by many of his colleagues, as being the "heart" of this institution.