Appearing on the Colbert Report in connection with the same-sex marriage cases last week, Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, inadvertently let slip what had been one of the best-kept secrets in legal academia. The interview started off innocently enough. After Colbert's characteristically grandiose entrance, the following exchange occurred:
Colbert: I understand you wrote a book called Living Originalism. Wasn't that a horror movie first?
Balkin: Actually I argue in the book that living Constitutionalism and originalism are two sides of the same coin.
Colbert: Is that one of those trillion-dollar coins?
Balkin: (Laughter.) No, I (inaudible).
Colbert: Seriously, did you come up with this theory on a dare?That occurs at 6:52 in the clip. Watch the reaction shot as Balkin briefly loses his composure. He continues:
Balkin: Who . . . who told you that?
Colbert: You mean it's true?!Balkin then recovers and denies the charge.
Balkin's slip prompted the student journalists at the Yale Daily News to do a little digging, whereupon they came up with this shocking story. According to Stephanie Miller, Yale Law School class of 2007, when she was a 1L in the fall of 2004, she attended a welcome party where a somewhat tipsy Jules Coleman let her in on a secret more closely guarded than the Skull-and-Bones handshake. Miller is quoted in the YDN as follows: "Coleman told me that there's a million-dollar prize at Yale for any professor who can successfully write a book on a dare from Guido Calabresi. [Sterling Professor Bruce] Ackerman won it twice for We the People, Jules said, and he added that Balkin was determined to win it too."
Ackerman's We the People argues that the Constitution has been "informally" amended during "constitutional moments" through a multi-step process that Ackerman described in his books. The YDN was unable to verify Miller's claim that (according to Coleman), the term "constitutional moment" was coined by the late Herbert Wechsler, when Ackerman was teaching at Columbia. According to Miller, Wechsler thought the idea preposterous, and Ackerman did too, but Ackerman then bet Wechsler that he, Ackerman, could nonetheless sell it. It is not known whether Ackerman ever collected from Wechsler, but when he returned to Yale, then-Dean Calabresi was so taken with the idea that he agreed to pay Ackerman the million dollars if he could complete the project without detection that it was all a goof.
The YDN further reports that since Ackerman collected the prize the second time, it has only been awarded once more--to Amy Chua for Battle Hymn of the Tiger Mother. An unnamed YLS colleague told the YDN that "Amy set the bar pretty high with that one. I mean Living Originalism is a funny idea and all, but compared to calling your own daughter garbage, it's really not that crazy."
The YDN story states that Calabresi, currently a senior judge on the U.S. Court of Appeals for the Second Circuit, has complete discretion over whether and when to award the prize, which is paid from a fund endowed by an anonymous Yale Law School alum. When I called Calabresi's chambers to verify the story, his secretary told me that "ever since the Judge compared President Bush to Hitler and Mussolini, he doesn't talk to reporters." I explained that I'm a fellow academic, not a full-time journalist but the secretary then said "that's worse" and hung up on me. Based on my unsuccessful efforts to reach current Yale faculty, it appears that current Yale Dean (and First Amendment scholar) Robert Post has implemented a gag order on the topic.