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Meet the Author: Evan Bernick
SSRN
Meet the Author: Evan Bernick
Evan Bernick is an Associate Professor of Law at Northern Illinois University, where he teaches courses in constitutional law, criminal law, criminal procedure, administrative law and legislation. From 2020 to 2021, Professor Bernick was a visiting professor at the Georgetown University Law Center and the executive director of the Georgetown Center for the Constitution. Before that, he served as a clerk to Judge Diane S. Sykes of the United States Court of Appeals for the Seventh Circuit. From April 2017 to April 2019, he was a visiting lecturer at Georgetown and a resident fellow of the Center for the Constitution. He has published with the Georgetown Law Journal, the Notre Dame Law Review, the William and Mary Law Review and the George Mason Law Review, among other journals. His book, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021), with Randy E. Barnett, was published by Harvard University Press under its Belknap imprint “for books of long-lasting importance, superior in scholarship and physical production, chosen whether or not they might be profitable.” He spoke with SSRN about strategies for teaching criminal law, the responsibility of legal scholars, and how law is interconnected with other disciplines.
Q: What was the driving force behind your decisions first to study law but then also to teach it to the next generation of lawyers and scholars?
A: My lodestar has been a statement that Karl Marx made: “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” I have focused on understanding the world and changing it for the brunt of my career, and that’s what drew me to law in the first place. Law exerts a tremendous influence on the world. It changes it for the better and for the worse. It structures our thinking in ways that sometimes we don’t even think about. My focus areas in law have always been where I perceive the moral stakes to be the highest: constitutional law, and the law that allows the state to use its most violent resources—criminal law and criminal procedure.
Q: How does teaching go as an extension of what you’re talking about, by making those changes that you want to see in the world?
A: I view the practice of law as a conversation that takes place in the backdrop of violence but does ultimately depend upon force to do its most important work. No state ever completely monopolizes force. Most people, most of the time, apply and follow the law because they think it’s the right thing to do. They are persuaded that the law carries with it an obligation.
I try to model that in how I teach. I don’t do, “this is the way it is: obey,” but “this is the way it is: let’s think about whether it ought to be that way. Let’s have a conversation.” I try to encourage students to arrive at their own conclusions about how they feel about things being a certain way. Because ultimately, perceptions of legitimacy determine the geometry of legal power.
I learn a great deal from my students. My classroom conversations inspire me to look at things more carefully in my research, to reflect on things that I hadn’t devoted much attention to. One example: Illinois recently, without entirely decriminalizing marijuana, legalized it in certain limited contexts. A student asked me whether, under Illinois law, marijuana was illegal. What I fumbled around with – and then ultimately decided to write up in the form of an article about teaching criminal law – is that it’s not an easy question to answer.
Illinois statutes say there are certain contexts in which you can possess marijuana. There are certain contexts in which you can’t. If you don’t meet the criteria for being a licensed dealer, you can’t distribute marijuana. Meanwhile, there’s this entire overlay of federal statutes that treat marijuana as a controlled substance. And just because you violate the letter of some statute, that doesn’t mean that anything will happen to you. I could just tell you, “Well, no, it’s not against the law in Illinois,” in the sense that in certain places, you’re not going to get arrested and prosecuted for it. But that’s just preliminary to larger questions. Depending upon where you are in the state, where you are in a city, police may be relatively focused or not relatively focused on something that violates a statute. So, the question becomes incredibly complicated.
In struggling with this question, I started thinking: how useful is it to talk about the criminal law in a particular place being ‘x’? Maybe we should talk instead about what police are doing, what the statutes say, what courts have decided that statute means, etc. That’s complicated, but sometimes that complication more accurately reflects the reality than a simple statement of ‘yes’ or ‘no.’ The world is much more complicated than it appears on the bar exam.
Q: It’s great that you mention this, because in your paper, “How Not to Teach Criminal Law,” you talk about how criminal law doesn’t exist – at least not in the way people are taught to think about it – and you make the distinction between criminalization and criminal law. How do you characterize this difference?
A: I teach a course called Criminal Law, and in the service of teaching that course, I say there are certain essential properties that are present in criminal law everywhere. In order to be convicted of a crime, there needs to be a guilty mind, (a mens rea) and a guilty act, (an actus reus). Crimes like murder, robbery, and kidnapping are crimes everywhere and they’re generally defined in the same way. The implication is that regardless of what state you happen to be in, if you want to avoid getting convicted of a crime, you’re going to have to avoid having a guilty mind and a guilty act in the sense specified by, say, a robbery statute. If you take my class, you’ll know the elements of robbery.
But, I’m trying to get better about saying that if you know the elements of robbery, you know robbery law. No competent lawyer would advise a client in any jurisdiction, with reference to broad generalities about mental state requirements and act requirements, and say everywhere, robbery is that. You want to be familiar with the statutes in your jurisdiction and the court decisions in your jurisdiction and police practices in your jurisdiction. If you go around thinking “there’s this thing that’s the law, and once I understand that, I can understand everything,” you’re going to very quickly find yourself in trouble.
What I do in that paper, and also in a separate paper called “Eliminating Criminal Law”, is suggest that in order to avoid giving this sense of a unified, coherent structure that is everywhere more or less the same –the criminal law – we should instead talk about criminalization in particular jurisdictions and what that looks like. The criminal law carries with it a bunch of associations, built up over the course of hundreds of years and conveys things about what the law is that are systematically inaccurate. With criminalization, we can at least move towards a place where we can be more specific.
One thing that I do in a lot of my papers is say I’m not entirely sure what the world should look like, but I do know that this conversation we’re having is not particularly helpful. It’s an obstacle to understanding the world and to changing it. Talking about the criminal law is going to systematically mislead you about the real world and discourage you from changing it. We might say there are unjust laws out there, but if somebody says, “well, it’s the law,” that’s supposed to be a reason to do or not do something. That’s particularly unfortunate in the context of criminal law, because I think a lot of it is morally questionable. There is a lot of bad criminal law that should change. And if we present it in a certain way – as being coherent, as being structured, as being everywhere, the same and more or less just– we’re less likely to think it needs to change.
Q: How would you envision criminal law curriculum in an ideal classroom format?
A: The first thing I would do is talk less about what is broadly labeled “violent crime.” I would talk less about murder, rape and robbery, not because those crimes aren’t serious, not because understanding them isn’t important – it definitely is – but because they’re not particularly representative. Most crimes, most things that expose you to criminal penalties, sanctions, imprisonment and the like, are not crimes of violence. People, fortunately, relatively rarely kill other people. But if we teach homicide first, what we suggest is that it’s somehow representative. What you suggest to students is the criminal law deals with the most serious crimes, it’s subject to the most demanding requirements, it’s hard to prove that somebody violated the criminal law, and the stuff that’s criminalized by criminal law really should be criminalized.
Whereas, if you start, as I’ve started to do, by focusing on dangerous objects and substances, which make up the bulk of what is criminalized, suddenly it seems like criminal law doesn’t necessarily focus on the most serious harms. You can be convicted of possession, even if it’s not directly proven that you knew you were possessing this object, because if it’s found on your person, there’s a presumption that you knew you possessed it. Did you really have a guilty mind, though? And then you start thinking, maybe a lot of what I see on TV and a lot of what I hear on the news about criminal law captures a small slice of a much larger pie, and in thinking about how I should orient myself towards criminal law generally, maybe I’ll be a little bit more critical than I might otherwise be.
Q: You’ve written multiple works connected to originalism: how would you explain this concept to someone not familiar with it, and how do you personally interpret it in your work?
A: Originalism is a family of theories. At a high level of generality, originalism stands for the proposition that the meaning public officials – in particular, judges – should attach to the constitutional text is the meaning that most people would have taken from the Constitution at the time the particular provision was ratified.
So, what’s a privilege or immunity of citizenship under the 14th Amendment? Well, it’s one of the civil rights that most people in 1868 would have understood a privilege or immunity of U.S. citizenship to be. If the right to be tried by unanimous jury for serious crimes was understood by most people in 1868 to be a privilege or immunity of citizenship, then it’s still a privilege or immunity of citizenship today. That’s the basic idea.
The particular originalism that I’m committed to is public meaning originalism. This focuses not on the understanding that the best educated lawyers might have had of this constitutional text, but what most people who read the thing would have understood it to mean. You pay attention to the framers of the 14th Amendment – to what they said on the campaign trail, not just what they said in Congress. You also look at, for example, conventions of formerly enslaved people and what they said about what they understood the constitutional text to mean, because they’re part of the public too. You hope that there’s enough convergence among all the people you’re able to get evidence from that you can say, “yes, non-unanimous juries [are] protected by the 14th Amendment.” But sometimes you have to recognize that there’s not that level of clarity in the evidence. You have to have a theory about what judges and other constitutional decision makers should do in those circumstances.
Where I and my co-author, Randy Barnett, ultimately go with this in our book is that you shouldn’t only focus on the particular things that people understood privileges or immunities of citizenship to be: you should understand that there was a broader original purpose that the framers of the 14th Amendment and those who ratified it understood it to be designed to accomplish. In particular, you should understand it through the lens of Republican citizenship. This is an understanding of citizenship that is grounded in natural rights – rights that you’d be entitled to as a moral matter, independently of any government at all – and civic equality, which is the idea that there are no second class citizens and any distinctions between the way that the government treats you should be supported by contextually sensible reasons. In thinking about who decides this, the 14th Amendment specifically empowers one institution, Congress, and basically says Congress is the first decider.
That’s not to say that the courts should have no role! But if Congress wants to say that a particular thing is a privilege or immunity of citizenship, courts should broadly defer to congressional judgments about that, because framers of the 14th Amendment and those who ratify their handiwork didn’t entirely trust courts. In the 1857 case Dred Scott v Sanford, [the] Supreme Court determined that Black Americans could never be citizens in the United States. President Lincoln said, I’ll accept that Dred Scott needs to remain enslaved, but I am going to act as if the Court got that wrong. Republicans later wrote expressly into the Constitution their belief that the courts had gotten it wrong, and because they didn’t trust the courts, they empowered Congress to take the lead in determining what people’s civil rights are.
Q: Your most downloaded paper on SSRN is also your most recent, “Birthright Citizenship and the Dunning School of Unoriginal Meanings,” which you co-wrote and posted on SSRN last month (March). Talk a little bit about this paper and your perspective on the issue, as someone who has studied and written about the 14th Amendment’s original meaning.
A: This criticism is directed against a former co-author with whom I wrote an entire book about the 14th Amendment. In doing this work, I never got an opportunity to talk to Randy about the question of birthright citizenship. This is a question that arises from the first sentence of the 14th Amendment, which says that all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. Why didn’t we talk about this? Why didn’t we resolve it in our book? I thought that we didn’t because it was so clear what it meant.
A few weeks ago, a fellow originalist, Ilan Wurman, posted a response to a court decision, in which a judge said that the executive order was clearly unconstitutional, that it was embarrassing for the judge to say that, because there’s an entire literature that disagrees, and we need to hear arguments back and forth. I knew that wasn’t right, and… saying this is not just wrong, it’s irresponsible, because… there’s no substantial literature that would exclude the children of undocumented immigrants. Randy and Ilan wrote an op-ed and took something of the position that the conventional wisdom is wrong. From my perspective, as somebody who did originalism for years, this op-ed makes foundational mistakes about the existing literature and relies on little affirmative evidence.
Professor Kreis and Professor Gowder aren’t originalists. But they shared my belief that what Randy and Ilan were doing wasn’t just wrong, it was irresponsible. As a matter of originalism, as a matter of political morality, as a matter of scholarly role. There are no serious arguments against the constitutional entitlements of the children of undocumented immigrants and temporary visitors to citizenship. They shouldn’t have made them.
Q: You’ve mentioned before that there’s a certain responsibility of legal scholars who interpret the law: how do you view that responsibility, especially when sharing legal ideas with a broader public that might not know anything about the law?
A: I don’t object to anyone making arguments in general about either what the law is or what the law should be. That’s not the problem. The problem is one that I think is exacerbated by limitations within legal scholarship, which is that, in general, we don’t have peer review. You submit your articles to students, and the students decide whether they’re publication-worthy. Some law reviews reach out to other scholars to say, “does this make any sense?” but they don’t have a deep familiarity with the literature.
But at least there’s something, and the availability of something like SSRN enables you to do a very rough cut at peer review by posting what you have on a platform and saying, “Hey, it’s up. Everybody look at it and tell us what you think.” When you’re navigating this relatively unregulated environment, it’s incumbent upon you to regulate yourself and recognize that you don’t know everything.
Ideally what happens in this process? Reach out to scholars. Ask them what they think. Try to determine whether there are any glaring errors or mistakes. Take that feedback into account. Then, post it on SSRN and say, “Comments welcome. Let’s talk about it.” And only then do we get to a point [of going] to [somewhere like] the New York Times with an op-ed that synthesizes the claims and says, “Here’s what we think.” In general, legal scholars have a responsibility to go through a peer review process of some kind before they start posting things, even if we formally don’t have peer review: in part, because we formally don’t have peer review.
Q: You have a lot of papers that are popular and highly downloaded on SSRN. Are there any that you think are especially relevant now or that you’d like to highlight and discuss further?
A: I strongly believe that the world is interconnected in ways that we’ve lost sight of as a consequence of disciplinary insularity. Legal scholars talk to legal scholars and historians talk to historians and political scientists talk to political scientists. I am really taken with the idea of drawing from multiple disciplines and thinking about how things are connected – taking inspiration from literature, from arts, from the hard sciences, from the soft sciences, from everything, and trying things out and seeing how they work.
I’ll give you one example. Roberto Unger was a major contributor to the critical legal studies movement that developed in the 1970s. Among the most important things CLS did was contend that legal concepts and ideas that we thought had always been there and were fixed in stone, developed over time in very contingent and unpredictable ways. Just a couple of years ago, he wrote a physics book with Lee Smolin, who’s an astrophysicist. And I’m thinking to myself, “What do these things have to do with one another?” Well, it turns out a lot. In that book, called The Singular Universe and the Reality of Time, Unger and Smolin argue that even at the level of physics, where the idea of invariant laws is fixed, there’s more contingency, more flux, more change than is generally thought.
In the first few moments after The Big Bang, we didn’t have the regular law-ordered cold universe that we have now. It was hot. It was chaotic. It was strange. And I thought, that’s actually a lot of my understanding of what happened in the early moments of constitutional formation. You’ve got this great organizing power, the production of a constitution, the production of a legal order, but it’s not an order yet. It’s in flux, and it changes. Then, over time, it hardens, and we start to say, “the Constitution clearly means this,” and “it clearly means that.” But that’s only from our perspective, and we have a great deal of choice about what Constitution we want to have. If it’s true in the hard sciences that fixed laws we think govern everything can change, how much more is that the case with the soft sciences? That’s what Unger does in that book, drawing from different disciplines. It encourages me to do things that are unusual in a lot of different places, rather than sticking to one. The paper in which I talk about this is called the “Constitutions of Ice and Fire.”
Q: How do you view SSRN as fitting into the broader legal research and scholarship landscape?
A: I think it democratizes legal scholarship in important ways. It enables you, as a relative nobody, to post something on a platform that everybody can read and that everybody can engage with, without going through any institutional hoops that would otherwise be there. If I hadn’t had the ability to do that as a young scholar, I don’t think I would have gotten nearly the amount of attention for my work that I’ve been able to get, much less leverage that into placement with top journals.
That’s only come with time, but I do think it’s very helpful to have a resource that enables you to put something out there and get feedback on it before you totally commit to it. I used SSRN both as a way of distributing complete papers, in contexts where people aren’t going to have access to the print copies, but also just getting feedback on early ideas and playing around with things. I posted a little essay called “Cthulhu and the Constitution” a couple of weeks ago. It’s just a fun piece that draws from literature and makes suggestive analogies between law and literature, and people liked it: it got shared and it got read. I didn’t need to have a place for it other than SSRN.
You can see more work by Evan Bernick on his SSRN Author page here
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