William Van Alstyne, 84, Often-Cited Constitutional Scholar, Dies
William Van Alstyne, an outspoken scholar whose interpretations of the Constitution were invoked by Supreme Court justices, civil libertarians and advocates for a diverse spectrum of causes, including gun ownership and abortion rights, died on Jan. 29 at his home in Huntington Beach, Calif. He was 84.
The cause was heart failure, his son, Marshall, said.
Professor Van Alstyne, who taught for 39 years at Duke University School of Law in Durham, N.C., defied political or ideological pigeonholing: He was both an enrolled Republican and a national board member of the American Civil Liberties Union.
He argued that banning abortion would be unconstitutional; that the Second Amendment guaranteed individuals — not only militias — the right to own guns; and that warrantless wiretapping by the administration of President George W. Bush was illegal.
In 1982, he vigorously opposed a proposed constitutional amendment to permit voluntary school prayer, concluding that it would “install the first seeds of theocracy into our government institutions.”
He supported affirmative action programs to help rectify bias, but opposed provisions that amounted, he wrote, to any “variety of racial discrimination under the auspices of the government of the United States.”
He also maintained that gerrymandering congressional districts on the basis of race, so that black votes counted more in majority black districts, merely revived the discredited principle of “separate but equal” and would “compel the worst tendencies toward race-based allegiances and divisions.”
Among Professor Van Alstyne’s most influential articles was a 1994 essay in the Duke Law Journal that concluded that while the right to keep and bear arms is not absolute — not in schools, necessarily, and not howitzers — the National Rifle Association nonetheless made an “extremely strong” claim that the Second Amendment applies to individuals.
When President Bill Clinton was impeached, Professor Van Alstyne broadly defined the Constitution’s impeachment criteria of “high crimes and misdemeanors” as reprehensible conduct “in the sense that it betrays the office” — an interpretation that Republicans embraced.
But when it was apparent that the Senate was wavering on conviction, he reminded lawmakers that while it was “the prerogative of this Congress to express dismay, despair and condemnation,” they should “struggle to find a suitable means to express your sense of disappointment” through some penalty less severe than removal.
He also took a broad view of people’s right to express their opinion.
“The First Amendment does not link the protection it provides with any particular objective,” he once said, “and may, accordingly, be deemed to operate without regard to anyone’s view of how well the speech it protects may or may not serve such an objective.”
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Professor Van Alstyne’s bible was the Constitution, and he always carried a copy with him.
“William Van Alstyne’s contributions to First Amendment interpretation, like his contributions to all of American constitutional law, are characterized by a piercing intellectual honesty and an impish play of intelligence,” Prof. Rodney A. Smolla, now the dean of Delaware Law School of Widener University, wrote in 2005.
Professor Van Alstyne made his views known not just in articles but also in television interviews and congressional testimony; he appeared before Senate and House committees 17 times from 1968 to 1985.
He testified in favor of President Richard M. Nixon’s nomination of Clement F. Haynsworth Jr. to the United States Supreme Court, which was rejected by the Senate in 1969, and against that of G. Harrold Carswell, whom Nixon chose instead. Judge Carswell, like Judge Haynsworth, was assailed by many as insufficiently protective of civil rights, but he was dismissed by critics, including Professor Van Alstyne, as an undistinguished jurist. The Senate rejected his nomination as well.
When Senator Birch Bayh, an Indiana Democrat, remarked that he had found the professor’s testimony on Judge Carswell “particularly revealing,” since they had differed over the Haynsworth nomination, Senator Strom Thurmond, Republican of South Carolina, interjected that perhaps Mr. Bayh hadn’t listened to the earlier testimony.
As Professor Neal Devins of William & Mary wrote in the Duke Law Journal in 2005, “Without missing a beat, Van Alstyne interjected: ‘With regard to Senator Bayh’s predicament, at least, I am reminded of a recollection of Justice Frankfurter, who said that it is so seldom that wisdom ever comes, we ought not to be reluctant though it comes late.’ ”
William Warner Van Alstyne was born on Feb. 8, 1934, in Chico, Calif., to Richard and Margaret (Ware) Van Alstyne. His mother was an author of children’s books, his father a professor and historian.
After earning a bachelor’s degree in philosophy from the University of Southern California in 1954 and graduating from Stanford Law School in 1958, he worked on voting rights cases in the South for the Justice Department.
Following a stint in the Air Force, he joined the faculty of Ohio State University, where he was named a full professor of law three years after being hired.
Professor Van Alystyne worked with Ruth Bader Ginsburg, the future Supreme Court justice, at the Civil Liberties Union to advance the Equal Rights Amendment for women.
In 1965 he joined the faculty at Duke, where he taught until 2004 as the Perkins professor of law. He was a professor of constitutional law at William & Mary Law School from 2004 until he retired in 2012.
A defender of academic freedom, Professor Van Alstyne was president of the American Association of University Professors from 1974 to 1976.
He is survived by his wife, Lan Cao, whom he married in 2003; their daughter, Harlan Van Cao, named after Supreme Court Justice John Harlan; three children, Allyn, Lisa and Marshall (another Supreme Court namesake, after John Marshall) Van Alstyne, from his first marriage, to Carol Frances, which ended in divorce; and two grandchildren. Hs marriage to Pamela Gann, a former dean of the Duke Law School, also ended in divorce.
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