Joe, part I

While a law prof, I taught constitutional law. One of the most influential articles in this field had been written decades earlier: "The Equal Protection of the Laws," 37 Calif. L. Rev. 341 (1949).

During the 1940s, the Supreme Court was just beginning to use the equal protection clause of the 14th Amendment as an independent vehicle (independent of the more-frequently invoked due process clause) to review state laws that treated people differently.

The article explored, in great depth and detail, both the potential of the equal protection clause and the problems that would arise when a court tried to apply it. Since all laws classify, when does a legislature's need to classify cross the line into unconstitutional discrimination? Is there a workable test for telling the difference? Why are over-inclusive laws -- laws that "reach out to the innocent bystander" -- more pernicious than under-inclusive laws? Can some type of "emergency" justify an over-inclusive classification? Should certain classifications (such as race) be treated as "suspect," because they are likely to originate in illegitimate legislative motives? But how can a court determine the motive of a multi-person legislative body? And most important: When does sober judicial review morph into improper judicial "activism"?

During the next few decades, as the equal protection clause emerged dramatically from its dormant cocoon, this article served as a foundation for the Supreme Court, who cited the piece several times.

Today, many of the questions raised by the article are now settled law. Nevertheless, if you handle an equal protection case, read the article. It will give you some ideas about how you might deal with some of the basic policy questions involved -- and it might provide you with some very quotable quotes.

But what about the guys who wrote it? Who were they?

The law review told us almost nothing about them, beyond their names: "Joseph Tussman and Jacobus tenBroek*". At the bottom of the page, footnote * tells us this -- and no more -- about the authors: "* University of California." No "Professor of Law at _____." For all we know, they could have been a couple of freshmen at Cal's school of mining.

As it turns out, tenBroek was a blind professor in the U.C. Speech Department. He was not a law professor, though he was a law school graduate.

"Joseph Tussman" was neither.

So who was "Joseph Tussman"?

I first met Joe at the Berkeley Rose Garden tennis courts. Big guy, with a big serve. But he was quite a bit older than me, and his knees were shot. So when we paired up for doubles, I did all the running.

Only later did I learn that he was a philosophy professor at Cal. In fact, he was chair of the Philosophy Department.

But why would a philosophy professor who never went to law school go messing around with the equal protection clause?

Joe had little interest in the classical philosophers (Hegel, Kant, Decartes, Hume, etc.) whose works lay at the heart of Cal's Philosophy Department. He was a unique thinker, with no inclination to follow any sort of crowd. He went his own way, and he was drawn to literature and law.

Joe matured during a turbulent time, when another Joe (McCarthy) noisily sought to root out Communists in government and Hollywood. Joe led the fight against the state legislature's requirement that every U.C. professor sign a "loyalty oath." From this arose his interest in the First Amendment, and from there it spread to civil liberties and the citizen's relation to government in a democracy. If you pressed him, he would call himself a liberal Democrat -- in the FDR mold. But that sort of pigeonholing is misleading, because he followed no fold. His views were original.

For a time, he read every U.S. Supreme Court opinion on every topic. He read them not as a lawyer would, but on a different level. And that's how he thought and wrote. When I say "he thought," I mean he thought -- deeper than anyone I've ever met. Joe was the best educated person I've ever encountered, and he used it to consider problems from every angle -- never accepting any accepted dogma at face value, and challenging every proposition, even one of his own.

To top it off, Joe was the best analytical writer I've ever read. We shared a down-to-earth style -- though his was on a much higher plane. Writings on arcane topics are not usually page-turners, but Joe's lucid prose on just about any topic can really grab and hold you.

Joe faced some of the same difficulties I faced getting law reviews to publish pieces written with an informal, conversational tone. I once squeaked by a bunch of formalist student editors, persuading them to publish one of my folksy essays -- a piece that ended up being cited a couple of times by U.S. Supreme Court justices. (What? You thought I write like this only for you?) But I could put "professor of law" after my name, while Joe couldn't. So one of his masterpieces ("Judicial Activism and the Rule of Law") was rejected by every law review he sent it to.

In college, philosophy was never my strong suit. (Come to think of it, I'm not sure I had a strong suit.) It never crossed my mind that philosophy could be so interesting, provocative -- and entertaining. With Joe, it was. We spent many dinners -- and even one long fishless fishing trip (his first and last) -- delving into these issues. For me, it was a better education than I'd received during four years of college. For him, a chance to bounce his legal ideas off someone who actually litigated cases.

Joe's contribution to the development of the law was impressive. But what he did for college education was just as important. Next column: how Joe reinvented the first two years of college. 