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Constitutional Law and History Research Guide

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Introduction

This guide provides an introduction to resources for conducting constitutional law research. The U.S. Constitution is widely considered the world's oldest constitutional document still in force today. The broad topic of “constitutional law” deals with the interpretation and implementation of the United States Constitution and covers a wide variety of areas, from the body of law that regulates the federal, state, and local governments of the United States to the fundamental rights of the individual in relation to both federal and state government.

It is important to remember that conducting research on constitutional law, as with many other areas of the law, is not so much an endeavor in finding answers as it is discovering different approaches and learning the sources that guide constitutional interpretation.

Given the breadth and diversity of this topic, we typically recommend that you start your research with   secondary sources   such as treatises or legal encyclopedias  to help you more quickly identify the focus of your research. This research guide includes information on finding  historical documents and resources for U.S. Constitutional history research , primary sources , secondary sources for U.S. Constitutional law , and material on state constitutional law research .

As the U.S. Supreme Court plays an integral role in interpreting the Constitution, the study of this area also focuses heavily on the Supreme Court justices and the Court’s rulings. For more information on primary and secondary materials relating to the Supreme Court, consult the  Supreme Court Research Guide .

Getting Started: Key Resources

• Encyclopedia of the American Constitution (Levy et al., 2nd ed.) This six-volume work contains essays by leading constitutional scholars, law school professors, judges, historians, and political scientists on practical and theoretical topics dealing with every aspect of constitutional law in the U.S., from the Constitutional Convention in 1787 to the Clinton impeachment.
• Historical Dictionary of the U.S. Constitution (2016) The Historical Dictionary of the U.S. Constitution covers the Founding of the American Republic and the Framers, the drafting of the Constitution, constitutional debates over ratification, and traces key events, Supreme Court chief justices, amendments, and Supreme Court cases regarding the interpretation of the Constitution from 1789-2016.
• Lexis: Constitutional Law Select your area of focus to research, be it Secondary Sources, Statutes or Administrative Material.
• Oxford Constitutional Law: US Constitutional Law US Constitutional Law provides a comprehensive research resource on the law, politics, and history of constitutionalism in the United States at the federal and state levels. Combining extensive primary materials with expert commentary, the service provides researchers with unparalleled access to the historical development of federal and state constitutionalism.
• Rotunda and Nowak's Treatise on Constitutional Law Legal treatise providing up-to-date analysis of every area of federal constitutional law. Focus is primarily on the Supreme Court. Coverage includes: origins of judicial review; sources of national authority; federal fiscal powers; procedural due process; and equal protection.
• Westlaw: Constitutional Law Texts & Treatises A collection of Constitutional Law treatises available on Westlaw. Contains titles pertaining to these areas and more: Anti-SLAPP Litigation, Education Law, Religious Organizations, Search And Seizure, and Freedom of Speech.

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Additional research resources.

• Supreme Court Research Guide
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• Framing of the U.S. Constitution (Library of Congress)

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Constitution Annotated: A Research Guide

Guide to constitution annotated essays.

• Introduction
• How to Use the Constitution Annotated Website
• Resources for Constitution Annotated Research
• Primary and Secondary Sources
• Related Research Guides

As a starting point to your constitutional research, you can begin to explore the Constitution Annotated by subject matter using the menu below or by inputting keywords in the search bar .

The links in the section below take you to the browse section for each constitutional provision's annotated essays. Individual essays can be accessed by clicking the serial numbers left of each essay title.

Introductory Essays

• U.S. Constitution (Articles 1-7)
• Bill of Rights (1-10)
• Early Amendments (11-12)
• Reconstruction Amendments (13-15)
• Early 20th Century Amendments (16-22)
• Post-War Amendments (23-27)

Unratified Amendments

These essays introduce the reader to various components underpinning the Constitution Annotated and how the Constitution is interpreted today.

• Constitution Annotated Methodology This section of essays explains the methodology for the current edition of the Constitution Annotated—that is, the rules and principles that dictate the organization and construction of the document.
• Organization of the Constitution Annotated The section of essays covers how the Constitution Annotated is organized.
• Historical Background of the Constitution This section of essays covers the historical background of the creation of the Constitution in 1787, looking at the Articles of Confederation and the Constitutional Convention.
• Basic Principles Underlying the Constitution This section of essays explores the basic principles underlying and permeating the Constitution, such as federalism, separation of powers, and rights.
• Ways to Interpret the Constitution This section of essays explores the various current frameworks by which the Constitution is interpreted by the Supreme Court, such as textualism, pragmatism, and moral reasoning.

The U.S. Constitution

The foundational legal document of the United States of America.

Legislative Power (Article I)

This section encompasses essays on Article I of the Constitution dealing specifically with the Legislative branch, its powers, and functions. A recommended first stop is the annotated essay on the Historical Origin Limits on Federal Power .

Executive Power (Article II)

This section encompasses essays on Article II of the Constitution dealing specifically with the Executive branch, the Presidency, its powers, and functions. A recommended first stop is the annotated essay on the Overview of Article II, Executive Branch .

Judicial Power (Article III)

This section encompasses essays on Article III of the Constitution dealing specifically with the Judicial branch, its powers, and functions. A recommended first stop is the annotated essay on Marbury v. Madison and Judicial Review .

Interstate Relations (Article IV)

This section encompasses essays on Article IV of the Constitution dealing specifically with the relationships between states. A recommended first stop is the annotated essay on the Purpose of Privileges and Immunities Clause.

Amending the Constitution (Article V)

This section encompasses essays on Article V of the Constitution dealing specifically with the creation of constitutional amendments. A recommended first stop is the annotated essay on Congressional Proposals of Amendments .

Supreme Law (Article VI)

This section encompasses essays on Article VI of the Constitution dealing specifically with the establishment of the Constitution as the Supreme Law of the Land. A recommended first stop is the annotated essay on the Overview of the Supremacy Clause.

Ratification (Article VII)

This section encompasses essays on Article VII of the Constitution dealing specifically with the ratification of the Constitution.

Bill of Rights

The first ten amendments to the Constitution.

First Amendment: Fundamental Freedoms

This section encompasses essays on the First Amendment dealing specifically with fundamental freedoms. A recommended first stop is the annotated essay on State Action Doctrine and Free Speech .

Second Amendment

This section encompasses essays on the Second Amendment dealing specifically with the right to bear arms. A recommended first stop is the annotated essay on Early Second Amendment Jurisprudence.

Third Amendment

This section encompasses essays on the Third Amendment dealing specifically with the quartering of soldiers. A recommended first stop is the annotated essay on Government Intrusion .

Fourth Amendment

This section encompasses essays on the Fourth Amendment dealing specifically with searches and seizures. A recommended first stop is the annotated essay on the Amendment’s Historical Background .

Fifth Amendment

This section encompasses essays on the Fifth Amendment dealing specifically with the rights of persons. A recommended first stop is the annotated essay overviewing Due Process .

Sixth Amendment

This section encompasses essays on the Sixth Amendment dealing specifically with rights in criminal prosecutions. A recommended first stop is the annotated essay on Prejudice and the Right to a Speedy Trial.

Seventh Amendment

This section encompasses essays on the Seventh Amendment dealing specifically with civil trial rights. A recommended first stop is the annotated essay overviewing the Seventh Amendment.

Eighth Amendment

This section encompasses essays on the Eighth Amendment dealing specifically with cruel and unusual punishment. A recommended first stop is the annotated essay on the standard of cruel and unusual punishment.

Ninth Amendment

This section encompasses essays on the Ninth Amendment dealing specifically with unenumerated rights. A recommended first stop is the annotated essay on the Amendment’s modern doctrine.

Tenth Amendment

This section encompasses essays on the Tenth Amendment dealing specifically with rights reserved to states and the people. A recommended first stop is the annotated essay on State Sovereignty .

Early Amendments

The two earliest amendments ratified after the Bill of Rights.

Eleventh Amendment

This section encompasses essays on the Eleventh Amendment dealing specifically with suits against states. A recommended first stop is the annotated essay on the Amendment’s historical background.

Twelfth Amendment

This section encompasses essays on the Twelfth Amendment dealing specifically with the election of the President.

Reconstruction Amendments

Also referred to as the Civil War Amendments, the 13th-15th Amendments were passed in the immediate aftermath of the Civil War to enshrine constitutional protections for newly-freed Black Americans.

Thirteenth Amendment

This section encompasses essays on the Thirteenth Amendment dealing specifically with the abolition of slavery. A recommended first stop is the annotated essay on Defining Badges and Incidents of Slavery

Fourteenth Amendment

This section encompasses essays on the Fourteenth Amendment dealing specifically with equal protection and other rights. A recommended first stop is the annotated essay overviewing Substantive Due Process .

Fifteenth Amendment

This section encompasses essays on the Fifteenth Amendment dealing specifically with the right to vote. A recommended first stop is the annotated essay on the right to vote generally .

Early Twentieth Century Amendments

The constitutional amendments ratified in the early twentieth century prior to the Second World War.

Sixteenth Amendment

This section encompasses essays on the Sixteenth Amendment dealing specifically with income tax. A recommended first stop is the annotated essay on the historical background of the Amendment.

Seventeenth Amendment

This section encompasses essays on the Seventeenth Amendment dealing specifically with the popular election of senators. A recommended first stop is the annotated essay on the historical background of the Amendment.

Eighteenth Amendment

This section encompasses essays on the Eighteenth Amendment dealing specifically with the prohibition of alcohol.

Nineteenth Amendment

This section encompasses essays on the Nineteenth Amendment dealing specifically with women’s suffrage. A recommended first stop is the annotated essay overviewing the amendment .

Twentieth Amendment

This section encompasses essays on the Twentieth Amendment dealing specifically with the presidential terms and succession.

Twenty-First Amendment

This section encompasses essays on the Twenty-First Amendment dealing specifically with the repeal of prohibition. A recommended first stop is the annotated essay on interstate commerce .

Twenty-Second Amendment

This section encompasses essays on the Twenty-Second Amendment dealing specifically with Presidential term limits.

Post-War Amendments

Constitutional amendments passed in the twentieth century after the conclusion of the Second World War.

Twenty-Third Amendment

This section encompasses essays on the Twenty-Third Amendment dealing specifically with District of Columbia electors.

Twenty-Fourth Amendment

This section encompasses essays on the Twenty-Fourth Amendment dealing specifically with the abolition of poll tax.

Twenty-Fifth Amendment

This section encompasses essays on the Twenty-Fifth Amendment dealing specifically with Presidential vacancy.

Twenty-Sixth Amendment

This section encompasses essays on the Twenty-Sixth Amendment dealing specifically with the reduction of voting age.

Twenty-Seventh Amendment

This section encompasses essays on the Twenty-Sixth Amendment dealing specifically with the congressional compensation. A recommended first stop is the annotated essay overviewing the amendment .

Six amendments have been proposed by Congress, but have not been ratified by the States.

• Proposed Amendments Not Ratified by the States This essay covers amendments proposed by Congress, but as of yet unratified by the States.
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• > Journals
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• > Proportionality and freedom—An essay on method in constitutional...

Article contents

Proportionality and freedom—an essay on method in constitutional law.

Published online by Cambridge University Press:  06 June 2012

This article presents a functional explanation of why proportionality has become one of the most successful legal transplants in contemporary constitutional law. It argues that proportionality helps judges mitigate what Robert Cover called the ‘inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process’. More than alternative methods, proportionality calibrates the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases. The first three sections show, through an analysis of different constitutional styles which I label Doric, Ionic and Corinthian, how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis. This method aims to synthesize fidelity to form and institutional structure (thesis) with ‘fact-sensitivity’ to contexts in which specific controversies arise (antithesis). Proportionality positions judges vis-à-vis the parties and the parties in relation to one another differently from other constitutional methods. The next sections distinguish between constitutional perception and reality. While the normative appeal of proportionality can be traced to the perception of its integrative aims, in reality, judicial technique does not entirely live up to those aims. Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. The final section draws on the works of Kant and Arendt and discusses the implications of an approach to constitutional method such as that reflected in the advent of proportionality for the project of constitutionalism more generally.

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1 Beatty , David , The Ultimate Rule of Law ( Oxford University Press , Oxford , 2004 ) 162 . CrossRef Google Scholar

2 Kumm , Mattias , ‘ Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice ’ ( 2003 ) 2 International Journal of Constitutional Law 574 –96, 595. CrossRef Google Scholar

3 Ibid 582. (‘Having a right does not confer much on the rights holder: that is to say, the fact that he or she has a prima facie right does not imply a position that entitles him/her to prevail over countervailing considerations of policy.’)

4 Barak , Aharon , ‘ Proportionality and Principled Balancing ’ ( 2010 ) 4 Law and Ethics of Human Rights 1 – 18 , 14. CrossRef Google Scholar

5 See, e.g. Sweet , Alec Stone and Mathews , Jud , ‘ Proportionality Balancing and Global Constitutionalism ’ ( 2008 ) 47 Columbia Journal of Transnational Law 72 , 160 Google Scholar ; Barak , Aharon , Proportionality: Constitutional Rights and their Limitations ( Cambridge University Press , Cambridge , 2012 ). CrossRef Google Scholar

6 For a study of proportionality in the context of American law generally, see Sullivan , E Thomas and Frase , Richard S , Proportionality Principles in American Law: Controlling Excessive Government Actions ( Oxford University Press , Oxford , 2008 ) CrossRef Google Scholar ; Mathews , Jud and Sweet , Alec Stone , ‘ All Things in Proportion? American Rights Review and the Problem of Balancing ’ ( 2011 ) 60 Emory Law Journal 797 Google Scholar ; Cohen-Eliya , Moshe and Porat , Iddo , ‘ The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law ’ ( 2009 ) 46 San Diego Law Review 367 . Google Scholar

7 Stone Sweet and Mathews (n 5) 160. The authors base this conclusion on the observation that ‘By the end of the 1990s, virtually every effective system of constitutional justice in the world, with the partial exception of the United States, had embraced the main tenets of proportionality analysis.’ Ibid 74.

8 See, e.g. Cohen-Eliya , Moshe and Porat , Iddo , ‘ Proportionality and the Culture of Justification ’ ( 2011 ) 59 American Journal of Comparative Law 463 –90 CrossRef Google Scholar ; Kumm , Mattias , ‘ The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review ’ ( 2010 ) 4 Law and Ethics of Human Rights 141 –57. CrossRef Google Scholar

9 Cover , Robert , ‘ Foreword: Nomos and Narrative ’ ( 1983 ) 97 Harvard Law Review 4 , 48 Google Scholar . Since the state is often involved as a party in constitutional conflict seeking court permission to override individual rights, Cover’s mention of ‘state law’ is best understood as referring to the ‘law of the state’. My emphasis on interpretation here tracks Cover’s, insofar as it is an emphasis on constitutional (as a form of legal) interpretation. For an argument about law’s ‘homicidal potential’, by contrast—or, perhaps, in relation to—its jurispathic dimension, see Cover , Robert , ‘ Violence and the Word ’ ( 1986 ) 95 Yale Law Journal 1601 . CrossRef Google Scholar

10 The formulation is Rousseau’s. See Rousseau , Jean-Jacques , The Social Contract [1762] ( Penguin , London , 1968 ) Google Scholar Book I, ch 7.

11 ‘Private’ should not be interpreted as ‘individual’ but as ‘non-official’. It includes the government’s constitutional interpretation seeking protection of its state interests.

12 I should note that Cover’s own substantive position about the possibility of justification is far more sceptical than the position presented in this article. For more on this difference, see (n 17).

13 See e.g. Pogge , Thomas , Politics as Usual ( Polity Press , Cambridge , 2010 ) Google Scholar (defining as a feature of democracy ‘the moral imperative that political institutions should maximize and equalize citizens’ability to shape the social context in which they live’.) 200.

14 I discuss the duty of responsiveness in Perju , Vlad , ‘ Cosmopolitanism and Constitutional Self-Government ’ ( 2010 ) 8 International Journal of Constitutional Law 326 –53 CrossRef Google Scholar . For now I should only mention that I don’t understand ‘responsiveness’as a purely procedural value. For such an approach, see the analysis in Michelman , Frank , ‘ Must Constitutional Democracy be ‘‘Responsive’’ ?’ ( 1997 ) 107 Ethics 706 –23 CrossRef Google Scholar (reviewing and analysing the procedural conception of democratic responsiveness in Robert Post’s Constitutional Domains ).

15 For an argument about how constitutional rights become interests by entering the decisional calculus, see Fallon , Richard , ‘ Individual Rights and the Powers of Government ’ ( 1993 ) 27 Georgia Law Review 343 . Google Scholar

16 As Habermas put it, ‘norms of action appear with a binary validity claim and are either valid or invalid; we can respond to normative sentences, as we can to assertoric sentences, only by taking a yes or no position or by withholding judgment’, in Habermas , , Between Facts and Norms ( MIT Press , Cambridge, MA , 1996 ) 255 Google Scholar . See also Dworkin , Ronald , A Matter of Principle ( Harvard University Press , Cambridge, MA , 1985 ) 119 –20 Google Scholar (discussing the bivalence thesis that applies to law, as to all dispositive concepts).

17 There are limits inherent in the process of justification. Robert Cover refers to them as tragic limits in the common meaning that can be achieved in justifying the social organization of legal violence. See Cover , Robert , ‘ Violence and the Word ’ 95 Yale Law Journal ( 1986 ) 1601 , 1628–9. CrossRef Google Scholar

18 Tilly , Charles , Why? ( Princeton University Press , Princeton , 2006 ) 24 –5 Google Scholar (footnotes omitted).

19 Beatty (n 1) 169. Kumm argues that proportionality marks the shift from interpretation to justification: ‘The proportionality test merely provides a structure for the demonstrable justification of an act in terms of reasons that are appropriate in a liberal democracy. Or to put it another way: it provides a structure for the justification of an act in terms of public reason’, in Mattias Kumm (n 8) 150. However, it is important to incorporate in a theory of proportionality the perspective of the right-holder himself. From that perspective, proportionality remains a method of interpretation. As I argue in the third and fourth sections, a virtue of proportionality is that it can integrate both perspectives.

20 For a discussion of available explanations, see Cohen-Eliya and Porat (n 8) 467–74.

21 On functional explanations, see Cohen , GA , Karl Marx’s Theory of History ( Oxford University Press , New York , 1978 ) 249 –77. Google Scholar

22 I borrow this phrase from Dworkin , Ronald , A Bill of Rights for Britain ( Chatto & Windus , London , 1990 ). Google Scholar

23 For a discussion of the different orders of Greek and Roman architecture, see Hearn , Fil , Ideas That Shaped Buildings ( MIT Press , Cambridge, MA , 2003 ) 97 – 133 . Google Scholar

24 Sales , Philip and Hooper , Ben , ‘ Proportionality and the Form of Law ’ ( 2003 ) 119 Law Quarterly Review 426 –54, 428. Google Scholar

25 Arendt , Hannah , ‘Understanding and Politics’ in Kohn , Jerome (ed), Essays in Understanding 1930–1954 ( Harcourt Brace , New York , 1994 ) 323 . Google Scholar

26 Walzer , Michael , Interpretation and Social Criticism ( Harvard University Press , Cambridge, MA , 1987 ) 37 . Google Scholar

27 Koskenniemi , Martti , The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 ( Cambridge University Press , New York , 2004 ) 503 –4. Google Scholar

28 Fried , Charles , ‘ Two Concepts of Interests: Some Reflections on the Supreme Court’s Balancing Test ’ ( 1963 ) 76 Harvard Law Review 755 , 761. CrossRef Google Scholar

29 ‘Form is the sworn enemy of caprice, the twin sister of liberty … Fixed forms are the school of discipline and order, and thereby of liberty itself. They are the bulwark against external attacks, since they will only break, not bend, and where a people has truly understood the service of freedom, it has also instinctively discovered the value of form and has felt intuitively that in its forms it did not possess and hold to something purely external, but to the palladium of its liberty.’ (Rudolf von Jhering, quoted in Pound , Roscoe , ‘ The End of Law as Developed in Legal Rules and Doctrines ’ ( 1914 ) 27 Harvard Law Review 195 , 208–9. CrossRef Google Scholar

30 Fried (n 28) ibid.

31 There are a number of ways in which the constitutional spaces are carved out, and here I focus on just one approach. See generally Gardbaum , Stephen , ‘ A Democratic Defense of Constitutional Balancing ’ ( 2010 ) 4 Law & Ethics of Human Rights 1 – 28 . CrossRef Google Scholar

32 Pildes , Richard H , ‘ Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law ’ ( 1994 ) 45 Hastings Law Journal 711 , 713. Google Scholar

33 This is the idea of exclusionary reasons. See Raz , Joseph , Practical Reason and Norms ( Oxford University Press , Oxford , 1999 ) 35 – 49 CrossRef Google Scholar . See also Waldron , Jeremy , ‘ Pildes on Dworkin’s Theory of Rights ’ ( 2000 ) 29 Journal of Legal Studies 301 CrossRef Google Scholar (‘Rights are limits on the kinds of reasons that the state can appropriately invoke in order to justify its actions.’). See also Pildes (n 32) 712.

34 Howe , , ‘ Foreword: Political Theory and the Nature of Liberty ’ ( 1953 ) 67 Harvard Law Review 91 CrossRef Google Scholar (‘Government must recognize that it is not the sole possessor of sovereignty, and that private groups within the community are entitled to lead their own free lives and exercise within the area of their competence an authority so effective as to justify labeling it a sovereign immunity.’).

35 For this interpretation of the early abortion cases, see Tribe , Laurence , ‘ Structural Due Process ’ ( 1975 ) 10 Harvard Civil Rights-Civil Liberties Law Review 269 . Google Scholar

36 District of Columbia v. Heller 554 U.S. 570 (2008).

37 See Abigail Alliance for Better Access to Experimental Drugs v. Eschenbach , 495 F.3d 695 (D.C. Cir. 2007), cert. denied mem., 128 S.Ct. 1069 (2008).

38 The scheme can be ‘the very product of [substantive] interest-balancing’. 128 S. Ct. 2783 at 2821 (Scalia, J)

39 Fried (n 28) 769. The right to free speech is a second-order reason about how the constitution allocates decision-making power within the spheres of authority that it carves out.

40 Walzer , Michael , ‘ Liberalism and the Art of Separation ’ ( 1984 ) 12 Political Theory 315 –30 CrossRef Google Scholar , 315. Walzer continues: ‘The art of separation is not an illusory or fantastic enterprise; it is a morally and politically necessary adaptation to the complexities of modern life. Liberal theory reflects and reinforces a long-term process of social differentiation.’

41 Habermas (n 16) 257.

42 Dworkin , Ronald , Taking Rights Seriously , ( Harvard University Press , Cambridge, MA , 1977 ) 269 . Google Scholar

43 Ibid 277.

44 Waldron , Jeremy , ‘ Rights in Conflict ’, 99 Ethics ( 1989 ) 503 –19, 516. CrossRef Google Scholar

45 Martti Koskenniemi (n 27) 502. (‘To put it simply and, I fear, through a banality it may not deserve, the message is that there must be limits to the exercise of power, that those who are in positions of strength must be accountable and that those who are weak must be heard and protected, and that when professional men and women engage in an argument about what is lawful and what is not, they are engaged in a politics that imagines the possibility of a community overriding particular alliances and preferences and allowing a meaningful distinction between lawful constraint and the application of naked power.’)

46 For a discussion, see generally Stephen Gardbaum, ‘Limiting Constitutional Rights’ (2007) 54 UCLA Law Review 785 (discussing ‘internal limits’ on rights).

47 At the same time, as the example of the American constitutional culture shows, the constant reaffirmation through public discourse of the deontological conception of rights in a Doric culture of liberty can be a successful self-fulfilling prophecy. For a critical discussion of the broader cultural implications of this deontological approach to rights in the US context, see Glendon , Mary-Ann , Rights Talk: The Impoverishment of Political Discourse ( Free Press , New York , 1991 ). Google Scholar

48 Koskenniemi (n 27) 501. (‘Formalism seeks to persuade the protagonists (lawyers, decisionmakers) to take a momentary distance from their preferences and to enter a terrain where these preferences should be justified, instead of taken for granted, by reference to standards that are independent from their particular positions or interests.’)

49 Young , Iris Marion , Justice and the Politics of Difference ( Princeton University Press , Princeton , 1990 ) 100 . Google Scholar

50 Minow , Martha , ‘ Interpreting Rights: An Essay for Robert Cover ’ 96 Yale Law Journal 1860 CrossRef Google Scholar , 1877 (‘legal positivism or objectivity that implies an authoritative basis or foundation beyond current human choices’). See also Minow , Martha and Spelman , Elizabeth , ‘ In Context ’ ( 1990 ) 63 Southern California Law Review 1597 . Google Scholar

51 Harvey , David , Cosmopolitanism and the Geographies of Freedom ( Columbia University Press , New York , 2009 ) 140 . Google Scholar

52 Wells , Catharine , ‘ Situated Decisionmaking ’ 63 Southern California Law Review ( 1990 ) 1727 , 1728 Google Scholar

53 Resnik , Judith , ‘ On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges ’, ( 1988 ) 61 Southern California Law Review 1877 Google Scholar , 1935. The Ionic architectural order itself was associated with the feminine gender. See Hearn (n 23) 110.

54 Catharine Wells (n 52) 1734 (‘Understanding a controversy … requires that it be experienced from several different perspectives as a developing drama that moves towards its own unique resolution.’).

55 See Grimm , Dieter , ‘ Proportionality in Canadian and German Constitutional Jurisprudence ’ ( 2007 ) 57 University of Toronto Law Journal 383 , 391. CrossRef Google Scholar

56 The legal recognition of interests is of course not unidirectional. Some interests do not pre-exist legal norms; they are, rather, a consequence of their creation. The expectation that a benefit-granting statutory scheme will not be discontinued absent change in circumstances may give rise to interests that cannot logically precede the adoption of that scheme. See Goldberg v. Kelly , 397 U.S. 254 (1970).

57 Beatty (n 1) 171. (‘When rights are factored into an analysis organized around the principle of proportionality, they have no special force as trumps. They are just rhetorical flourish.’)

58 Mattias Kumm (n 2) 582. (‘Having a right does not confer much on the rights holder: that is to say, the fact that he or she has a prima facie right does not imply a position that entitles him/her to prevail over countervailing considerations of policy.’)

59 The outcome of balancing can be stated in the form of a legal rule. See Alexy , Robert , A Theory of Constitutional Rights ( Oxford University Press , New York , 2002 ) 56 Google Scholar (‘The result of every correct balancing of constitutional rights can be formulated in terms of a derivative constitutional rights norm in the form of a rule under which the case can be subsumed.’).

60 Currie , David P , The Constitution of the Federal Republic of Germany ( University of Chicago Press , Chicago , 1994 ) 181 . Google Scholar

61 Alexy (n 59) 57. It is of course possible to devise categorical protections within the model of rights as substantive reasons. As Kumm reminds us, certain types of reasons—say, religious reasons for introducing prayer in public schools—are categorically excluded from the comparative weighting of interests in proportionality analysis. See Kumm (n 2) 591.

62 Scalia, J in Heller 128 S. Ct. at 2821.

63 Rights can also alter the time-horizon in which that process unfolds. For instance, rights can be part of the ongoing interaction between the right-holder and social institutions over time. Martha Minow writes: ‘A claimant asserts a right and thereby secures the attention of the community through the procedures the community has designated for hearing such claims. The legal authority responds, and though this response is temporary and of limited scope, it provides the occasion for the next claim. Legal rights, then, should be understood as the language of a continuing process rather than the fixed rules. Rights discourse reaches temporary resting points from which new claims can be made. Rights, in this sense, are not ‘‘trumps’’ but the language we use to try to persuade others to let us win this round.’ See Martha Minow (n 50) 1875–6 (footnotes omitted).

64 Judith Resnik (n 53) 1935. (‘Rather than bemoan ... a switch in roles, feminism teaches us to celebrate such rearrangements, to require judges to let others judge them. Such moments might better enable judges to be empathetic, to adopt the perspective of the other, to enter into the experience of the courtroom unprotected by their special status. Judge as witness can thus be understood as a profound challenge to a stable hierarchy, as a subversive act to be applauded.’).

65 128 S. Ct. 2850 (Breyer, J, dissenting).

66 Contrasting balancing to rule-based categorical reasoning, Kathleen Sullivan has defended balancing on precisely this ground: ‘rules lose vitality unless their reason for existing is reiterated’, in Sullivan , Kathleen , ‘ Post-Liberal Judging: The Roles of Categorization and Balancing ’ ( 1992 ) 63 University of Colorado Law Review 293 , 309 (footnotes omitted). Google Scholar

67 Sales and Hooper (n 24) 428.

68 I use here Alexy’s standard ‘balancing’ formula: ‘[t]he greater the degree of non-satisfaction of, or detriment to, one right or principle, the greater must be the importance of satisfying the other’ (n 59) 102.

69 Disch , Lisa Jane , Hannah Arendt and the Limits of Philosophy ( Cornell University Press , Ithaca , 1994 ) 162 . Google Scholar

70 Arendt , Hannah , Lectures on Kant’s Political Philosophy ( University of Chicago Press , Chicago , 1989 ) 42 . Google Scholar

71 I borrow this classification (absolute, relative, relational spaces) from David Harvey (n 51), although I should point out that my use does not completely track Harvey’s. For more on relational space, see Lefebvre , Henri , The Production of Space ( Blackwell , Oxford , 1991 ). Google Scholar

72 This phrase is Amartya Sen’s. Sen argues for conception of objectivity that is positional-dependent and person-independent. Observations and beliefs are objective if any subject could reproduce them when placed in a position similar to that of the initial observer. The challenge then becomes how to define the position-dependent. See Sen , Amartya , ‘ Positional Objectivity ’ 22 Philosophy and Public Affairs ( 1993 ) 126 –45. Google Scholar

73 See Gardbaum (n 46).

74 Grimm (n 55) 397.

75 The idea is also to avoid the twin risk of what the South African Constitutional Court called the ‘mechanical adherence to a sequential check-list,’ S Manamela, 2000 (3) SA 1 (CC) 20 (cited in Gardbaum (n 46) 841).

76 For an example of such analysis in American constitutional law, see United States v. Virginia , 518 U.S. 515 (1996).

77 See Grimm (n 55) 388. Canadian courts initially tried to impose a higher threshold on the government by asking that the governmental objective be ‘pressing and substantial’ ( Barak , Aharon , ‘ Proportional Effect: The Israeli Experience ’, 57 University of Toronto Law Journal 369 , 371 ( 2007 ) CrossRef Google Scholar concern or ‘sufficiently important to justify overriding a Charter [constitutionally protected] right’. See Barak ibid 371 (quoting Hogg , Peter , Constitutional Law of Canada , ( student edn , Carswell, Toronto , 2005 ) 823 Google Scholar . Over time however, as the other steps in the analysis have become more substantial, even Canadian courts have begun to defer more and more to the legislature. See generally Choudhry , Sujit , ‘ So What Is the Real Legacy of Oakes? ’ ( 2006 ) 34 Supreme Court Law Review (2d) 501 ). Google Scholar

78 Some advocates of proportionality—including judges writing extra-judicially—have argued for a more incisive judicial involvement at this stage. President Barak has expressed doubts about the wisdom of deferring to the legislator. See Aharon Barak ibid 371 (‘Despite the centrality of the object component, no statute in Israel has been annulled merely because of the lack of a proper object [or purpose]. A similar approach exists in German constitutional law … This is regrettable. The object component should be given an independent and central role in examining constitutionality, without linking it solely with the means for realizing it. Indeed, not every object is proper from the constitutional perspective. This is not the expression of a lack of confidence in the legislature; rather it is the expression of the status of human rights.’) (footnotes omitted).

79 See Shavit v. The Chevra Kadisha of Rishon Le Zion , C.A. 6024/97 (1999) (Supreme Court of Israel) at § 9.

80 The assumption, as Dieter Grimm put it, is that: ‘It is rarely the case that a legal measure affects a fundamental right altogether. Usually, only a certain aspect of a right is affected … The same is true for the good in whose interest the right is restricted. Rarely is one measure apt to give full protection to a certain good.’ Grimm (n 55) 396.

81 Bagenstos , Samuel , ‘ Subordination, Stigma, and ‘‘Disability’’ ’ ( 2000 ) 86 Virginia Law Review 397 CrossRef Google Scholar , 406 (arguing that disability rights do not have a ‘core’).

82 In the context of freedom of religion, if judges may break the institutional shell of a right, then they may look for the ‘core’ of the free exercise right in the beating heart of the belief and practice of a religious experience, but this is a notoriously sticky enterprise. ‘It is no more appropriate for judges to determine the ‘‘centrality’’ of religious beliefs before applying a ‘‘compelling interest’’ test in the free exercise field, than it would be for them to determine the ‘‘importance’’ of ideas before applying the ‘‘compelling interest’’ test in the free speech field.’ Employment Division, Dept of Human Resources v. Smith , 485 U.S. 660 (1988). See also Shavit v. The Chevra Kadisha of Rishon Le Zion , C.A. 6024/97 (1999) (Supreme Court of Israel) (Judge Englard) (deciding whether Jewish burial societies, which customarily administered cemeteries throughout the country, had the right to prevent family members from inscribing on the deceased’s tombstone her birth and death dates according to the standard Gregorian calendar as well as the Hebrew calendar).

83 For these reasons, the distinction between core and periphery raises more questions than it answers. See also, Rivers , Julian , ‘ Proportionality and Variable Intensity of Review ’ 65 Cambridge Law Journal 174 – 207 CrossRef Google Scholar , 187 (‘The problem with the ‘‘very essence’’ of a right is that it is almost impossible to define it usefully without reference to competing public interests.’).

84 554 U.S. 570 (2008).

85 To be specific, the constitutional provision in the South African Interim Constitution followed the essentialist paradigm of the German style. The Court’s discussion of its shortcomings can be found in S. v. Makwanyane (1995) (3) SALR 391 (CC), para 132 (‘The difficulty of interpretation arises from the uncertainty as to what the ‘‘essential content’’ of a right is, and how it is to be determined. Should this be determined subjectively from the point of view of the individual affected by the invasion of the right, or objectively, from the point of view of the nature of the right and its place in the constitutional order, or possibly in some other way?’).

86 Robert Cover (n 9).

87 Hobbes , , The Leviathan , Tuck , Richard (ed) ( Cambridge University Press , Cambridge , 1996 ). Google Scholar

88 The Supreme Court delivers final statements of legal validity. The common reference is to Justice Jackson’s statement: ‘We are not final because we are infallible, but we are infallible only because we are final’, Brown v Allen 344 US 443, 540 (1953) (Jackson J, concurring). See Alexander , Larry and Schauer , Frederick , ‘ On Extrajudicial Constitutional Interpretation ’ ( 1997 ) 110 Harvard Law Review 1359 . CrossRef Google Scholar

89 I use the idea of ‘legal imaginary’ by analogy with Charles Taylor’s conception of the social imaginary, in Taylor , Charles , Modern Social Imaginaries ( Duke University Press , Durham, NC , 2007 ) Google Scholar . Taylor defined the social imaginary as ‘a largely unstructured and inarticulate understanding of our whole situation ... an implicit map of the social space’. (25)

90 Williams , Bernard , In the Beginning Was the Deed: Realism and Moralism in Political Argument ( Princeton University Press , Princeton , 2005 ). Google Scholar

91 See Hart , HLA , The Concept of Law ( 2nd edn , Clarendon Press , Oxford , 1994 ), Chapter VII. Google Scholar

92 For a critical discussion, see Solum , Lawrence , ‘ On the Indeterminacy Crisis: Critiquing Critical Dogma ’, ( 1987 ) 54 University of Chicago Law Review 462 – 503 CrossRef Google Scholar . See also Tushnet , Mark , ‘ Essay on Rights ’ ( 1984 ) 62 Texas Law Review 1363 . Google Scholar

93 See Jackson , Vicki , ‘ Being Proportional about Proportionality ’ ( 2004 ) 21 Constitutional Commentary 803 . Google Scholar

94 Nozick , Robert , Anarchy, State and Utopia ( Basic Books , New York , 1974 ) 29 . Google Scholar

95 Beatty (n 1) 169.

96 Stone Sweet and Mathews (n 5) 88, 89. The authors see this feature as part of proportionality’s strategic dimension.

97 Beatty (n 1) 172.

98 Arendt , Hannah , The Human Condition ( University of Chicago Press , Chicago , 1958 ) 7 . Google Scholar

99 See Martha Minow (n 50) 1877.

100 As Hannah Arendt wrote referring to judgment in general, ‘impartiality is obtained by taking the standpoints of others into account: impartiality is not the result of some higher standpoint that would then settle the dispute by being above the melée.’ Hannah Arendt (n 70) 42.

101 Arendt (n 98) 57–8.

102 Arendt (n 70) 105–6.

103 See generally Paulo Barrozo, ‘Law as Moral Imagination: The Great Alliance and the Future of Law’ (unpublished dissertation, Harvard University, 2009) (on file with Harvard Law Library).

104 Arendt (n 70) 43.

105 Scarry , Elaine , ‘The Difficulty of Imagining Other People’ in Nussbaum , Martha For Love of Country? ( Beacon Press , Boston, MA , 2002 ) 98 – 110 . Google Scholar

106 Kant , , Critique of Judgment , § 40 ( JH Bernard translation , Hafner, New York , 1951 ) Google Scholar . This is the edition that Arendt used. On her usage, see Arendt (n 70) 157. For a slightly different translation, see Kant , , Critique of the Power of Judgment ( Guyer , Paul (ed) Cambridge University Press , Cambridge , 2000 ) 175 . CrossRef Google Scholar

107 Emphasis on representation of others in judicial reasoning, in the best understanding of the Doric or any of the other styles, is not meant to replace or supplement political representation. The disreputable history of such an approach is told in Koskenniemi , Martti , ‘ Legal Cosmopolitanism: Tom Franck’s Messianic World ’ ( 2003 ) 35 New York University Journal of International Law and Politics 471 . Google Scholar

108 Elaine Scarry (n 105) 106 (my emphasis).

110 They must do so as part of their duties of citizenship. For the idea of citizens as office-holders, see Rawls , John , Law of Peoples ( Harvard University Press , Cambridge, MA , 2001 ) 135 . Google Scholar

111 See Koskenniemi, (n 27) 501.

112 Frost , Robert , ‘The Road Not Taken’ in Fasano , Thomas (ed) Selected Early Poems ( Coyote Canyon Press , Claremont, CA , 2008 ) 141 . Google Scholar

113 For example, see Judith Resnik (n 53) 1935.

114 Disch (n 69) 161.

115 See Robin West, The Anti-Empathic Turn (2011) < http://papers.ssrn.com/sol3/papers . cfm?abstract_id=1885079>. On empathy generally, see Stueber , Karsten , Rediscovering Empathy ( MIT Press , Cambridge, MA , 2006 ). Google Scholar

116 Kant, Critique of Judgment (n 106) 160.

117 See Disch (n 69) 162 (discussing the risks of shifting ‘(others’) prejudices for the prejudices proper to (one’s) own station’). It can be said, with respect to proportionality analysis, that the division into four distinct steps imposes a ‘mental double-check’ aimed precisely at creating the distance necessary to identify and counter possible prejudice. For a discussion of mental double-checks and the psychology of judging, see Kahan , Dan H , Hoffman , David A and Braman , Donald , ‘ Whose Eyes Are You Going to Believe? Scott v Harris and the Perils of Cognitive Illiberalism ’ ( 2009 ) 122 Harvard Law Review 837 . Google Scholar

118 Judicial decisions, like all acts of state authority, are coercive acts. And ‘any coercive act in a liberal democracy has to be conceivable as a collective judgment of reason about what justice and good policy require.’ See Mattias Kumm (n 8) 157.

119 Nedelsky cited in Salyzyn , Amy , ‘ The Role of Agency in Arendt’s Theory of Judgment: A Principled Approach to Diversity on the Bench ’ ( 2004 ) 3 Journal of Law & Equality 165 , 174. Google Scholar

120 Amy Salyzyn ibid 169. (‘While Arendt seeks to appropriate many of the core concepts of Kant’s theory, she rejects his transcendental universalism and moves away from his formalism to situate judgments in real, particular communities.’)

121 Disch (n 69) 158.

122 Arendt (n 70) 42.

123 Hannah Arendt, ‘Truth and Politics’, cited in Ronald Beiner, ‘Interpretative Essay’, in Arendt (n 70) 107.

124 Disch (n 69) 168.

125 Arendt, ‘On the nature of totalitarianism: An essay in understanding’ (quoted in Lisa Disch (n 69) 157) (‘Only imagination is capable of what we know as ‘‘putting things in their proper distance’’ and which actually means that we should be strong enough to remove those which are too close until we can see and understand them without bias and prejudice, strong enough to bridge the abysses of remoteness until we can see and understand those that are too far away as though they were our own affairs. This removing some things and bridging the abysses to others is part of the interminable dialogue for whose purpose direct experience establishes too immediate and too close a contact and mere knowledge erects an artificial barrier.’)

126 Disch (n 69) 162. Arendt goes on. As she describes it: ‘form an opinion by considering a given issue from different viewpoints, by making present in my mind the standpoints of those who are absent: I represent them. … The more people’s standpoints I have present in my mind while I am pondering a given issue, and the better I can imagine how I would feel and think if I were in their place, the stronger will be my capacity for representative thinking and valid my final conclusions, my opinions.’ Arendt (n 70) ‘Interpretative essay’ 107.

127 Waldron , Jeremy , ‘Kant’s Legal Positivism’ ( 1996 ) 109 Harvard Law Review 1535 Google Scholar , 1540 (‘law must be such that its content and validity can be determined without reproducing the disagreements about rights and justice that it is law’s function to supersede.’)

128 This argument has been made in the related context of the American rejection of the use of foreign law in constitutional interpretation. See Michelman , Frank , ‘Integrity-Anxiety?’ in Ignatieff , Michael (ed), American Exceptionalism and Human Rights ( Princeton University Press , Princeton , 2005 ). Google Scholar

129 For such an argument, see Cohen-Eliya and Porat (n 8) 487–90.

130 Reflecting on the public space of politics, Arendt wrote that ‘Whenever people come together, the world thrusts itself between them, and it is in this in-between space that all human affairs are conducted’ in Arendt , Hannah , ‘Introduction into Politics’ in, Kohn , Jerome (ed) The Promise of Politics ( Schocken , New York , 2005 ) 106 . Google Scholar

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• DOI: https://doi.org/10.1017/S2045381712000044

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Excellent Essay Example 1 (July 2017 Constitutional Law)

This lesson presents a real, excellent response to the July 2017 MEE Constitutional Law question . First, read the essay, then listen to the analysis below.

Download the essay as a PDF.

Excellent Essay

1. Bank v. State A in federal court

The issue is whether this action is permitted under the 11th amendment.

The 11th Amendment prohibits federal law suits against states. It is based in the premise of state sovereign immunity. There are exceptions to the 11th amendment, for example, when a state waives sovereign immunity or 11th amendment protection or when congress, under its 14th Amendment sec 5 power abrogates the state sovereign immunity in a statute. Otherwise, citizens of the state or of other states are not permitted to sue a state directly for damages.

Here, the bank appears to be suing the state directly, along with the superintendent, seeking damages. There is no indication that the statute provides a waiver of the 11th amendment and there is no congressional statute on point, so there is not congressional abrogation. Therefore, the suit is not permitted under the 11th amendment and the bank cannot maintain the suit against the state itself in federal court.

Furthermore, while state officials can be sued in their individual capacities for damages, and in their official capacities for prospective injunctive relief, even if that relief would require some money from the state treasury, they cannot be sued for money damages or retrospective relief. Therefore, the bank's action for damages, even as against the superintendent will not be permitted in federal court.

2. Bank v. Superintendent in federal court

The main issue is whether against a state official in their official capacity seeking injunctive relief can be maintained in federal court given the 11th amendment.

As mentioned above, despite the 11th amendment, state officials can be used in their individual capacities for damages, and in their official capacities for prospective injunctive relief, even if that relief would require some money from the state treasury. A suit against a state officer for injunctive relief will be maintained if it is seeking prospective relief and the effect on the state officers is incidental.

Here, the bank's action for injunctive relief can be maintained against the superintendent. The superintendent is sued in her official capacity and the bank is seeking to stop (enjoin) the enforcement of the statute. Therefore it can be maintained under an Ex Parte Young theory.

Note that the bank clearly has standing since it has already suffered a concrete and particularized injury (loss of $2 million dollars) that is caused by the statute and would be redressed by a favorable finding (that the statute is unconstitutional). It can likely show that it will continue to lose money from lost business as a result of the statute, which would be redressed by an injunction.

In conclusion, this part of the bank's claim can proceed.

3. Constitutionality of Statute

The main issue is whether the statute violates the dormant commerce clause. The commerce clause grants to congress the right to regulate interstate commerce. While states have a general police power to regulate in the interest of the health, safety and welfare of their citizens, the negative implication of the commerce clause, often called the dormant commerce clause, limits what they can do when it places a burden on interstate commerce. Generally, if a state law discriminates against out-of-staters, or against interstate commerce, it will be struck down unless the state can show it is necessary to protect a substantial state interests (unrelated to protectionism). It is does not discriminate, it will be struck down if it places an undue burden on interstate commerce--in other words, the burden on interstate commerce will be weighed against the interest of the state.

Here, while there is some protectionism motivating the statute (it was passed as a result of heavy lobbying by State A based manufacturer of biometric identification equipment), it does not appear to discriminate against out of state companies. It applies to both in state and out of state companies and to companies doing business only within the state, and to those doing business across states. Therefore, it likely does not discriminate. Therefore it will be subject to the balancing test. Here, the burden on interstate commerce appears to be somewhat substantial. Banks that operate in multiple states including State A, will be forced to choose between updating their systems to have biometric identification, or cease to do that kind of business in the state. That could have a substantial impact on interstate commerce. The fact that the large bank has already made this choice is support of that. On the other hand, the state appears to have a strong interest in protecting its citizens against fraud. Despite the security measures of banks, customers are still being subjected to unauthorized transfers by thieves. To the extent that this is impacting its citizens, State A clearly has a strong interest in protecting them. However, it is not clear that this particular biometric approach is an improvement or will work. Experts disagree about whether it is significantly better and the bank clearly thinks it is not. However, given that the state has a strong interest, it likely will pass the balancing test and be upheld.

There are two exceptions, neither applicable here: the market participant exception and congressional authorization. There is no indication in the facts that either apply here. Furthermore, there is no preemption since congress has not regulated in this area.

Note that the privileges and immunities clause of Art IV does not apply because the bank is not an individual citizen, and because the statute, while possibly motivated by protectionism, does not appear to discriminate against out-of-staters.

Analysis of the Sample Essay

Now we're going to look at a representative good answer provided by the state of New York. And like we did with the analysis above, we'll go prompt by prompt, noting what this answer did well and what it could have done even better. Again, this is a good answer, a really good one, in fact.

First, let's just take a look at the overall structure of the first prompt. Remember that our goal is for every written answer to have four parts and in the same order every time. Conclusion, rule, application conclusion. CRAC. Just following that recipe over and over will really help you rack up points on the MEE.

Remember I said that I want your approach to the MEE to be mechanical and automatic to the point where you're not so much writing an essay as just assembling an answer? That's what I mean.

Now, this essay doesn't exactly do that on prompt 1. It starts with a numbered header, "Bank v. State A in federal court." And that's fine if it's there to help the test taker remember what's what, but it's not going to score any points with the grader. And then the first real sentence here is an issue statement rather than a conclusion.

So, right away, we can tell that this essay is doing IRAC instead of CRAC. You might find that, as you're writing the essay, the IRAC formula is easier to follow because you might have to write out the rule paragraph and the application paragraph before you discover your conclusion. That's perfectly fine. Use your first paragraph to state the issue. But it's a super quick fix to edit that first paragraph once you're done with your essay to transform what you initially wrote as an issue into a conclusion, something with the word "because" in it.

For example, instead of "The issue is whether this action is permitted under the Eleventh Amendment," this test taker could have just said, "This suit against State A cannot be maintained because of," and there's that key word "because," indicating your reasoning, "the Eleventh Amendment." Or even better, "because the Eleventh Amendment gives states immunity against suits for money damages."

And it's always good to go ahead and bold or underline that sentence or sentences just to make it super clear for the grader that right here, you've earned your points. Having said that, I'll give the test taker here some credit for noting correctly in the issue statement that the issue here is about the Eleventh Amendment. That's not something that the prompt itself says, so the test taker probably did pick up some points there.

Now, these next two paragraphs are just fantastic. Truly impressive work. The first one is a superb statement of the applicable rule, which, as we discussed above, is the key to this prompt. The last sentence of the paragraph states the main point, "Citizens of the state or other states are not permitted to sue a state directly for damages," and then enumerates the exceptions before it.

Probably could have done that in the other order, I guess, but really great substance for a rule paragraph. In fact, it even notes the rule of Hans v. Louisiana, that even in-state citizens can't sue states for money damages.

The next paragraph I like as well, because it starts off, as all my favorite application paragraphs do, with the word "Here." That tells the grader that you're about to zero in on the fact pattern and also gives you a mental cue for what to do next.

As we discussed earlier, there's really not much application to do on this prompt. This answer goes a little above and beyond by noting that there's no indication of waiver or a valid federal statute abrogating immunity. Those are two things that aren't in the fact pattern, in other words, but would have mattered if they were.

I don't love the next paragraph, which starts, "Furthermore." It's not exactly wrong. State officials are generally immune from money damages when acting in their official capacities, but it's also not responsive to the prompt, which asked whether the bank can maintain a suit in federal court against State A for damages.

The superintendent is the focus of the next prompt, so all this could have been held for that. I think the test taker probably just got carried away here or else felt nervous about having not written enough. But again, once you're done, you're done. Move on.

And finally, and this is really nitpicky, the final C in CRAC, the second conclusion, should be in its own paragraph. So that last sentence, which starts with "Therefore," which is great, that's how it should start, should also be on its own line.

The second prompt sets up a lot like the first in terms of its structure, so I won't belabor the point too much. Again, we want the first part of our written answer to be a conclusion, that's the first C in our C-R-A-C, and ideally a reason as well, something with a "because" in it. Here, the test taker starts with the issue instead, and that's not bad.

The answer does correctly identify the Eleventh Amendment as a relevant issue, which gives the grader something to work with. But it would be pretty easy to come back, even after writing the rest of the answer, and transform that into a bolded conclusion sentence, like "The bank's suit against the state superintendent can be maintained because the Eleventh Amendment, or the doctrine of Ex parte Young, permits parties to seek injunctive relief against state officials in their official capacity."

The next paragraph states the rule and does a good job of conveying all the substance. One thing just to note here is that it says, "as mentioned above," and refers the grader back up to the first prompt. That's not a bad trick if you're really being asked to repeat a rule. And that does sometimes happen, like if back-to-back prompts ask you about two different parties' liability under the same rule. You wouldn't need to repeat the rule for the second party.

But that can also be a signal that maybe you should reorganize your answers. Here, as we noted a minute ago, the "furthermore" sentence in the first prompt is really unnecessary there and would fit more naturally down here under the second prompt.

After that, we get a great application paragraph. It starts off with "Here" and states the very few relevant facts necessary to justify the application of Ex parte Young, and really that's where the application should stop. I'd just jump straight to the "In conclusion" sentence, which is a nice summary, but this test taker goes on to argue that the bank does, in fact, have standing, and that's fine, I suppose.

The rule and the analysis here is correct, but again, it's not particularly responsive to the prompt, which was really focused on injunctive relief and the state superintendent. So this standing analysis would apply equally to the first prompt or the third. So it just feels kind of tacked on here. Again, maybe the test taker was just feeling a need to say a little more. Still, really strong answer on prompt 2.

Let's move on to prompt 3. Again, we're starting off with an issue statement that could easily be made into a conclusion. And here I'm just making one up based on this test taker's own analysis of the rule: "State A's statute is likely constitutional because it will probably survive the applicable balancing test under the Dormant Commerce Clause."

The rule statement here should be set off in its own paragraph just to make things as easy as possible for the grader, but otherwise this one does a great job introducing the Dormant Commerce Clause and the two major rule categories that it contains.

That last sentence could be a little more precise. It's not really whether the law places an undue burden on interstate commerce, but rather whether the burdens on interstate commerce are clearly excessive compared to the putative local benefits. But that's just a matter of getting the weights right on the balancing test.

This next paragraph, which is really long and should be broken in half, is a great illustration of how to tackle a two-part rule, or a rule and a sub-rule, or alternative rules.

Remember that there are two categories under the Dormant Commerce Clause: one for protectionist statutes and one for those that incidentally burden interstate commerce. This test taker recognizes that; they're both stated in that rule paragraph. And then the test taker proceeds to apply them both, one after the other, with two back-to-back applications and conclusions.

In fact, you can even see that because there are two "here" statements. I'd set those off into two different paragraphs, I think, just to make it super clear. The first one is terrific, a great showing of why the statute isn't protectionist for purposes of the Dormant Commerce Clause. And it wraps up with a "Therefore," actually two of them, which again is great.

The second one is also really, really strong. After two prompts that called for basically no use of the fact pattern, the test taker here has deployed a whole bunch of facts, not, you'll note, the precise figures and dollar amounts, but that's okay.

And the test taker does a really good job of showing both sides, which is crucial when you're applying a balancing test like this one. A nice way to make that easy on the grader is to do as this one does and use phrases like "on the other hand," because that both says and shows that you're applying the rule.

It would have been nice to wrap this up with a good, clear "therefore" statement, like the final C in our CRAC structure, instead of the "however," but the sentence there is pretty strong. It says, "It likely will pass the balancing test and be upheld." It would just be more clear if there were a "therefore" before that.

What comes after that is really more like a flourish. The test taker goes on to explain why neither of the major Dormant Commerce Clause exceptions are available here, and also why the Privileges and Immunities Clause of Article IV isn't applicable either.

I mean, it's almost just showing off at this point. The test taker clearly knows their stuff and this kind of thing certainly wouldn't count against the final points, but I wouldn't expect you to pick up all of that, especially the Privileges and Immunities point.

So, overall, this is a truly superb answer.

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Constitutional Law

Notes, cases, and materials on constitutional law, topic notes.

Past Papers

Back to Subjects | Back to Law

Introduction to public law

Constitutional law

Constitutional conventions

Ministerial responsibility

Royal prerogative

Rule of law and powers

Parliamentary Sovereignty

Implied repeal and constitutional statutes

The judiciary

EU supremacy

Devolution of Northern Ireland

Devolution of Scotland and Wales

Constitutional Reform

Introduction

Jurisdiction and errors of law/fact

Discretion and deference

Ground: illegality

Ground: irrationality

Human rights adjudication

Ground: proportionality

Tribunals and Ombudsmen

Ground: procedural fairness and bias

Legitimate Expectations

Amenability

Judicial review procedure and remedies

Rule of Law and powers

Parliamentary sovereignty

EU Supremacy

Human Rights

Errors of law and fact

Legitimate expectations

Past Papers & Questions

1. ‘[Judicial deference] has two distinct sources. The first is the constitutional principle of the separation of powers. The second is no more than a pragmatic view about the evidential value of certain judgments of the executive, whose force will vary according to the subject matter.’ R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60, [22] (Lord Sumption)

Critically discuss the role judicial deference plays in judicial review decisions, and the implications, or even dangers, it might pose.

2. ‘I suggest that the non-enforceability of conventions by the Court[s] is of only marginal importance, at least in nearly all situations. In nearly all cases, the power authoritatively to identify and declare the terms of established constitutional conventions will be enough to attract voluntary compliance from the political actors.’ - W R Lederman ‘The Supreme Court of Canada and Basic Constitutional Amendment An Assessment of Reference Re Amendment of the Constitution of Canada (Nos 1, 2 and 3) (1982) 27 McGill LJ 527, 537-538.

Critically discuss the importance of conventions for the UK constitution.

3. ‘The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law...’ R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) [18]

Critically discuss whether there are now legal arguments in favour of codifying the UK Constitution.

4. ‘[I]t could be said that the British Constitution does not know of any rule of law since no superior law puts limits to what Parliament may legislate.’ Phillips, Jackson and Leopold, Constitutional and Administrative Law (Sweet & Maxwell 2001)

Critically discuss whether this statement remains applicable today.

5. ‘The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority.’ Laws LJ in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, [50].

With reference to the quote above, critically evaluate whether the judicial practice of enforcing legitimate expectations can be accurately described as being grounded in the principle of fairness.

6. Constitutional Reform Act 2005, section 1, states ‘This Act does not adversely affect [...] the existing constitutional principle of the rule of law’.

Critically discuss the role of the ‘existing constitutional principle of the rule of law’ in the British constitution and particularly its importance in relation to the constitutional position of the judiciary.

7. Critically evaluate the methods of enforcement and accountability for breaches of constitutional conventions.

8. Critically evaluate the legal significance and utility of the Human Rights Act 1998 within the UK Constitution.

9. Critically discuss the continued relevance of Wednesbury review.

10. Critically discuss whether the UK’s accession to the European Union has triggered a constitutional revolution and resulted in the demise of parliamentary sovereignty.

11. Critically evaluate the notion that the UK constitution is principally enforced, protected and upheld by processes that are distinctly political, rather than legal.

The (fictional) Immigration Centres Act 2016 was recently enacted. It was passed using the Parliament Acts 1911 and 1949 because of strong opposition from the House of Lords to some of the powers it confers on the Home Office.

Under the Immigration Centres Act 2016, new facilities will be opened:

• s. 5 ‘the Secretary of State may (if necessary) change the use of other state owned facilities to use as Detention Centres.’
• s. 6 ‘the UK Border Agency (UKBA) will invite tenders from private companies for any contract to manage any facility designated as a Detention Centre under this Act.’

In addition,

• s. 11 ‘the Secretary of State may extend a person’s detention indefinitely if he believes such an extension to be necessary. The person is free to leave the United Kingdom if they choose.’

In April, the Home Secretary, Ms North, made a public statement that a new Detention Centre would shortly be opened on premises currently used by a publicly owned school for children with special learning needs. Alice, one of the children at the school, has severe learning difficulties and her doctors have warned that changing schools may be seriously detrimental to her wellbeing. Her mother contacted their MP, Mr South, who said ‘there will be a consultation and very likely, this change will not happen.’ Alice’s social worker also assured her on at least three occasions that the closure would not happen and Alice would always be able to go to school there. The plan has gone ahead and an Order has been made to close the school without consultation. Ms North says that the social worker had ‘no right’ to make the assurances she did.

Clive works for the UKBA and has been asked to invite tenders from private companies for the contract to run the Detention Centre. The contract is awarded to ‘Lock and Key’, a company run by a close friend of his wife, who had dinner with them the weekend before the decision was made. ‘Prison People’, another company, is unhappy to have missed out.

Daniil has been held in another Detention Centre for the past 6 months. He cannot return to his home country because of armed conflict which makes him afraid for his life. The Home Secretary, Ms North, however, is persuaded based on intelligence she has received that Daniil is involved with an organised criminal group. She has extended his detention ‘until such a time as he can be charged. We are still gathering the evidence. But he is free to leave the country if he chooses.’

Advise Alice, ‘Prison People’ and Daniil.

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Coping With A Court One Disagrees With

31 Pages Posted:

Randy E. Barnett

Georgetown University Law Center

Josh Blackman

South Texas College of Law Houston

Date Written: September 11, 2024

Is there a "crisis" in teaching constitutional law? In our view, there is not. Still, we can empathize. As libertarian-conservative-ish law professors, for years we taught Supreme Court decisions that we disagreed with. We teach constitutional law as a historical narrative that began at the founding and continues to this day. The narrative approach underscores the contingent nature of what at any given time appears to be fixed and unchangeable. The narrative also remains remarkably stable from year to year even as new cases are added. This approach also makes preparing one's syllabus relatively easy to do each year, regardless of what the Supreme Court may have decided in its most recent term. The pedagogy we developed was premised on a Supreme Court jurisprudence we largely disagreed with. Indeed, we still disagree with much of this jurisprudence, especially the cases that were decided right before, during, and after Reconstruction. While some of these cases, like Prigg , Dred Scott , and Plessy are now in the anti-canon, others like Slaughter-House , Cruikshank , and the Civil Rights Cases remain good law. This pedagogy worked before 2016 and it will continue to work no matter what happens in the future. We submit that the time is ripe for liberal and progressive professors, especially those who are having trouble coping with the current Supreme Court, to consider adopting our narrative approach to the constitutional canon and anticanon.  Part I of this essay focuses on our approach to teaching the constitutional canon. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and previews the forthcoming Fifth Edition. We demonstrate that the narrative about the development of the constitutional canon has remained remarkably stable. Even after accounting for the recent terms, our syllabus will be about 90% the same as it was in 2019. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with. For those professors who are pained by the Supreme Court’s current doctrines, our narrative approach provides succor. Such professors can, for example, teach what they believe to be “the good old days” of the Warren and Burger courts in contrast to what now exists. Students can then decide for themselves which era they prefer. 

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Constitutional Law on the Multistate Essay Exam: Highly Tested Topics and Tips

Constitutional Law is regularly tested on the MEE. It is tested, on average, once every year or year-and-a-half. It used to be the least-tested MBE subject on the MEE, but it has been making a comeback and is now tested relatively equally with other subjects.

Here, we tell you tips for approaching Constitutional Law on the MEE and we reveal some of the highly tested issues in Constitutional Law questions.

Constitutional Law on the Multistate Essay Exam

1. first, be aware of how constitutional law is tested.

Constitutional Law is about once every year or year-and-a-half, as noted above. The subject of Constitutional Law can be divided into two sections: (1) governmental powers (the powers of Congress, the President, judiciary, federalism, etc.) and (2) individual rights (First Amendment, Equal Protection Clause, Due Process Clause, etc.). Constitutional Law MEE questions have shifted from testing primarily First Amendment and individual rights issues to lately primarily testing governmental powers.

Constitutional Law was combined with another subject for the first time in July 2019 (Civil Procedure). Constitutional Law was combined with Corporations and LLCs in July 2020.

2. Be aware of the highly tested Constitutional Law issues

The examiners tend to test several of the same issues in Constitutional Law questions. You can maximize your score by being aware of these highly tested issues. (We have a nice summary of these in our  MEE One-Sheets  if you want to see all of them and have them all in one place.)

Some highly tested Constitutional Law Multistate Essay Exam issues include:

Commerce clause and dormant commerce clause.

These are NCBE favorites! You should be aware of Congress’s power to regulate commerce, as well as the states’ power to regulate commerce in the absence of congressional regulation.

• Commerce Clause:   Congress can regulate the channels and instrumentalities of interstate commerce , persons and things in interstate commerce , or anything that has a substantial effect on interstate commerce . (This is a very broad power!) However, Congress cannot “commandeer” states and force them to enforce federal laws. Congress can, instead, regulate directly through its commerce power or it can regulate indirectly through its taxing and spending power .

• Dormant Commerce Clause:   If Congress is silent, states may regulate commerce. However, if a state regulation  discriminates against interstate commerce , it is usually unconstitutional as it must undergo a  strict scrutiny analysis. If the regulation is  nondiscriminatory on its face , it undergoes a burden-benefit analysis and is more likely to be held constitutional. Memorize these two standards of review . If you see a Dormant Commerce Clause issue, state both standards of review prior to applying the applicable one.

• Exceptions:   Be aware of when the Dormant Commerce Clause does not apply— when Congress is regulating , when the state is acting as a market participant , and when the law favors a government entity performing a traditional governmental activity (such as waste disposal).

Equal Protection Clause (EPC)

To perform well on an EPC MEE question, you need to memorize the standards of review under the EPC. This will help boost your score not only for the MEE but also for the MBE. You should also memorize the standards of review under the Due Process Clause, although so far, the EPC has shown up more frequently on the MEE, with issues involving age and gender.

• Strict scrutiny:   The  government must prove that the law is  narrowly tailored (necessary) to achieve a  compelling governmental interest . The government usually loses under a strict scrutiny analysis. Strict scrutiny applies to fundamental rights , racial or ethnic discrimination , and alienage (though there are exceptions for alienage where strict scrutiny does not apply—e.g., if the public function doctrine applies or if the law regulates illegal aliens [term used by the examiners]).

• Intermediate scrutiny:   The  government must prove the law is  substantially related to an  important government interest . Intermediate scrutiny applies to classifications of gender and illegitimacy [term used by the examiners].

• Rational basis:   The  plaintiff must prove that the law is  not rationally related to a  legitimate government interest. The plaintiff usually loses under rational basis. Rational basis applies to every other classification—poverty, wealth, age, education, etc.

First Amendment free speech

First Amendment free speech is heavily tested on the MEE. Some highly tested free speech topics are:

• Government action required

• Content-based versus content-neutral speech restrictions: A content-based restriction seeks to forbid communication about certain ideas or content . Content-based restrictions are usually subject to strict scrutiny .

• Content-neutral restrictions do not seek to forbid the content of the speech and usually restricts the time, place, or manner that the speech may be expressed (see below).

• Public forum versus private forum

3. Memorize the important Constitutional amendments and clauses

To build credibility with the grader, it is helpful to know which amendment goes with which topic. For example:

• Commerce Clause:   under the Commerce Clause, Congress has the power to regulate interstate commerce.
• Equal protection:  The Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.
• Free speech:   The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.
• Eminent domain:   a restriction on takings arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.

Stating the applicable Constitutional amendment/clause is a great way to begin your rule statement on a Constitutional Law MEE question. Also, knowing ahead of time what you will write when you see one of these topics tested can help boost your confidence on exam day.

4. Understand the trickier Constitutional Law tested issues

Memorization is important, but you also want to make sure that you understand the law so that you can accurately apply it. Many examinees have trouble with Dormant Commerce Clause issues, the Eleventh Amendment , application of First Amendment free speech issues , and distinguishing between Equal Protection Clause and substantive Due Process Clause issues .

Some examinees memorize these concepts, but they do not properly apply them to the facts because they do not truly understand them.

If you find yourself unable to properly apply the law to the facts, try the following:

• Attend (or rewatch) your bar review course lecture if you found it helpful.
• Seek a tutor for Constitutional Law (or consult with a study group, if you have one).
• Practice MEE and MBE questions and closely analyze the answer explanations, while making notes to yourself of helpful examples.
• Review the topics you are having trouble with by doing a Google search.

Some students feel a false sense of confidence about Constitutional Law. Make sure that you actually understand the more nuanced issues—they tend to be the most highly tested ones on the MEE!

5. Practice! 

Practice is critical if you want to master Constitutional Law on the MEE. As an added bonus, you may also see your MBE score improve if you practice Constitutional Law essays.

Here, we provide you with some links to free Constitutional Law MEE questions and NCBE point sheets. (If you would like to purchase a book of Constitutional Law MEE questions and NCBE point sheets, check out our  MEE books  here. You can also see some additional exams  on the NCBE website for free here .)

• October 2020 Constitutional Law MEE: this MEE covers free speech—content-based, content-neutral, and time-place-or-manner
• February 2016 Constitutional Law MEE: this MEE covers the Dormant Commerce Clause.
• February 2015 Constitutional Law MEE: this MEE covers the Equal Protection Clause under the Fourteenth Amendment.
• February 2013 Constitutional Law MEE: this MEE covers state action and First Amendment free speech.

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The nature of constitutional law

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constitutional law , the body of rules, doctrines, and practices that govern the operation of political communities . In modern times the most important political community has been the state . Modern constitutional law is the offspring of nationalism as well as of the idea that the state must protect certain fundamental rights of the individual. As the number of states has multiplied, so have constitution s and with them the body of constitutional law, though sometimes such law originates from sources outside the state. The protection of individual rights, meanwhile, has become the concern of supranational institutions, particularly since the mid-20th century.

Constitutions and constitutional law

In the broadest sense a constitution is a body of rules governing the affairs of an organized group. A parliament, a church congregation, a social club, or a trade union may operate under the terms of a formal written document labeled a constitution. Not all of the rules of the organization are in the constitution; many other rules (e.g., bylaws and customs) also exist. By definition the rules spelled out in the constitution are considered to be basic, in the sense that, until they are modified according to an appropriate procedure, all other rules must conform to them. Thus, the presiding officer of an organization may be obliged to declare a proposal out of order if it is contrary to a provision in the constitution. Implicit in the concept of a constitution is the idea of a “higher law” that takes precedence over all other laws.

Every political community, and thus every state, has a constitution, at least insofar as it operates its important institutions according to some fundamental body of rules. By this conception of the term, the only conceivable alternative to a constitution is a condition of anarchy . Nevertheless, the form a constitution may take varies considerably. Constitutions may be written or unwritten, codified or uncodified, and complex or simple, and they may provide for vastly different patterns of governance. In a constitutional monarchy , for example, the sovereign’s powers are circumscribed by the constitution, whereas in an absolute monarchy the sovereign has unqualified powers.

A political community’s constitution articulates the principles determining the institutions to which the task of governing is entrusted, along with their respective powers. In absolute monarchies, as in the ancient kingdoms of East Asia , the Roman Empire, and France between the 16th and 18th centuries, all sovereign powers were concentrated in one person, the king or emperor, who exercised them directly or through subordinate agencies that acted according to his instructions. In ancient republics, such as Athens and Rome, the constitution provided, as do the constitutions of most modern states, for a distribution of powers among distinct institutions. But whether it concentrates or disperses these powers, a constitution always contains at least the rules that define the structure and operation of the government that runs the community.

A constitution may do more than define the authorities endowed with powers to command. It may also delimit those powers in order to secure against them certain fundamental rights of persons or groups. The idea that there should be limits on the powers that the state may exercise is deeply rooted in Western political philosophy . Well before the advent of Christianity, Greek philosophers thought that, in order to be just, positive law—the law actually enforced in a community—must reflect the principles of a superior, ideal law, which was known as natural law . Similar conceptions were propagated in Rome by Cicero (106–43 bc ) and by the Stoics ( see Stoicism ). Later the Church Father s and the theologians of Scholasticism held that positive law is binding only if it does not conflict with the precepts of divine law. These abstract considerations were received to a certain extent in the fundamental rules of positive legal systems. In Europe during the Middle Ages , for example, the authority of political rulers did not extend to religious matters, which were strictly reserved to the jurisdiction of the church. Their powers also were limited by the rights granted to at least some classes of subjects. Disputes over the extent of such rights were not infrequent and sometimes were settled through solemn legal “pacts” between the contenders , such as Magna Carta (1215). Even the “absolute” monarchs of Europe did not always exercise genuinely absolute power. The king of France in the 17th or 18th century, for example, was unable by himself to alter the fundamental laws of the kingdom or to disestablish the Roman Catholic Church .

Against this background of existing legal limitations on the powers of governments, a decisive turn in the history of Western constitutional law occurred when political philosophers developed a theory of natural law based on the “inalienable rights ” of the individual. The English philosopher John Locke (1632–1704) was an early champion of this doctrine. Others followed Locke, and in the 18th century the view they articulated became the banner of the Enlightenment . These thinkers asserted that every human being is endowed with certain rights—including the rights to worship according to one’s conscience , to express one’s opinions in public, to acquire and possess property, and to be protected against punishment on the basis of retroactive laws and unfair criminal procedures—that governments cannot “take away” because they are not created by governments in the first place. They further assumed that governments should be organized in a way that affords effective protection for individual rights. Thus, it was thought that, as a minimal prerequisite, governmental functions must be divided into legislative, executive , and judicial; executive action must comply with the rules laid down by the legislature; and remedies, administered by an independent judiciary , must be available against illegal executive action.

The doctrine of natural rights was a potent factor in the reshaping of the constitutions of Western countries in the 17th, 18th, and 19th centuries. An early stage of this process was the creation of the English Bill of Rights (1689), a product of England’s Glorious Revolution . All these principles concerning the division of governmental functions and their appropriate relations were incorporated into the constitutional law of England and other Western countries. England also soon changed some of its laws so as to give more-adequate legal force to the newly pronounced individual freedoms.

In the United States the doctrine of natural rights was even more successful. Once the American colonies became independent states (1776), they faced the problem of giving themselves a fresh political organization. They seized the opportunity to spell out in legal documents, which could be amended only through a special procedure, the main principles for distributing governmental functions among distinct state agencies and for protecting the rights of the individual, as the doctrine of natural rights required. The federal Constitution —drafted in 1787 at a Constitutional Convention in Philadelphia to replace the failing Articles of Confederation —and its subsequent Bill of Rights (ratified 1791) did the same at the national level. By formally conferring through these devices a higher status on rules that defined the organization of government and limited its legislative and executive powers, U.S. constitutionalism displayed the essential nature of all constitutional law: the fact that it is “basic” with respect to all other laws of the legal system. This feature made it possible to establish institutional controls over the conformity of legislation with the group of rules considered, within the system, to be of supreme importance.

The American idea that the basic rules that guide the operations of government should be stated in an orderly, comprehensive document quickly became popular. From the end of the 18th century, scores of countries in Europe and elsewhere followed the example of the United States; today nearly all states have constitutional documents describing the fundamental organs of the state, the ways they should operate, and, usually, the rights they must respect and even sometimes the goals they ought to pursue. Not every constitution, however, has been inspired by the individualistic ideals that permeate modern Western constitutional law. The constitutions of the former Soviet Union and other communist countries subordinated individual freedoms to the goal of achieving a classless society . Notwithstanding the great differences between modern constitutions, however, they are similar at least in one respect: they are meant to express the core of the constitutional law governing their respective countries.

‘More Just’ Podcast: In a Changing Landscape, How to Teach Constitutional Law?

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“ More Just ,” hosted by Berkeley Law Dean Erwin Chemerinsky ,  is a podcast about how law schools can and must play a role in solving society’s most difficult problems.

The rule of law — and the role of the law — has never been more important.  In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Chemerinsky in conversation with other deans, professors, students, and advocates about how they’re making law schools matter.

In this episode, Chemerinsky — a leading scholar in the field who has been teaching the class for decades and is the author of a popular casebook — talks about the U.S. Supreme Court’s most recent term. It’s the latest in a series of monumental years for the Court, and Chemerinsky analyzes these sweeping changes with Michael Dorf , the Robert S. Stevens Professor of Law at Cornell Law School, and CNN Chief Supreme Court Analyst Joan Biskupic .

Dorf has authored or co-authored well over one hundred scholarly articles and essays for law reviews, books, and peer-reviewed science and social science journals. He is a co-editor of a Constitutional Law casebook, writes a bi-weekly column for Justia’s web magazine, Verdict, and posts several times per week on his own blog, Dorf on Law.

Biskupic has covered the Supreme Court for more than 25 years and has written several books on the judiciary, including Nine Black Robes: Inside the Supreme Court’s Drive to the Right and its Historic Consequences  and  The Chief , a biography of Chief Justice John Roberts. 

Chemerinsky’s new book, No Democracy Lasts Forever: How the Constitution Threatens the United States , has just been published.

What follows is excerpts of their conversation. Listen to the full episode below and Visit the “More Just” archive for all episodes. 

ERWIN CHEMERINSKY: I think we should start by overall thoughts with regard to the term. Joan, if I could ask you first, what was your overall reaction to October term 2023?

JOAN BISKUPIC: I would focus just briefly on three individual justices, who I think kind encapsulate the evolution of the John Roberts Court. I would start with the chief himself, who appears to have reached a turning point.

I think epitomized by the ruling in Trump v. United States , his vision for the high court has become more aggressive. He is certainly trying to reclaim the place that he might have lost two years ago with the Dobbs ruling that ended all abortion rights nationwide under the Constitution. Not only was he taking such a aggressive, muscular approach in the Trump immunity case, he kept most of the important cases for himself across the board, including the one that reversed the Chevron doctrine, the 1984 precedent that gave federal regulators considerable power over health care, food, and drug safety, the environment, consumer affairs.

You just can’t name a big case that John Roberts didn’t claim for himself. And I think that what we saw this year with him is him edging to the right to make sure he can control the Court, control the opinion in a way that he was not able to do in Dobbs.

The second justice just briefly to mention is Amy Coney Barrett, who this year, I think, really made a difference for all the tightest cases. Her vote made the difference when the justices laid down some First Amendment rules that we’ll talk about in the NetChoice case. Her position made a difference in the Idaho abortion rights case involving EMTALA that will probably mention and in the Trump immunity case, she was the one member of the conservative side who broke from her brethren in a small way, but a significant way on whether official acts could be used for evidence in cases going forward against a former president.

And then finally, just to show how one individual conservative can go from winning, winning, winning to an unusually frustrating year, and that would be Samuel Alito, who wrote the Dobbs opinion two years ago, who has always been with the majority and pushed as hard as he can for hard right decisions.

He lost two cases this year that he was writing that would be NetChoice and Trevino that will probably mention later, and he was a big loser in the Idaho abortion case where he was with the majority to allow the Idaho rigid abortion ban to take full effect in that state, but then saw his majority slip away by the end of the session. And he’s someone who, even when he’s winning, exudes a kind of frustration and vexation. But this time around, he really showed frustration because he did end up on the losing end in a couple of key cases. 

MICHAEL DORF: I agree with Joan’s analysis. I would add a few things. First, you can’t really think about this term at all outside of the two Trump cases. It’s hard to overemphasize how important those were, so that they overshadow everything. And those, of course, were the case reversing the Colorado Supreme Court and allowing Trump access to the ballot, which was unanimous in the result, but split ideologically on some of the reasoning. And then, of course, the immunity decision, which we’ll talk about.

So everything else in some sense is almost a footnote, but those are important footnotes. So Joan mentioned the overruling of the Chevron doctrine of deference to administrative agencies. That is of a piece with the decisions of the Roberts Court in the last several years, undermining the power of administrative agencies, especially using something called the major questions doctrine, so that’s one development.

There were some interesting cross ideological moves. As I mentioned, the Court was unanimous, at least in the result in the Trump ballot access case under Section three of the 14th Amendment. There was a non-ideological split in the Purdue Pharma bankruptcy case, which was quite interesting, I thought. And there’s technical arguments there, but you’ve got a majority by Justice Gorsuch and a dissent by Justice Kavanaugh, each joined by a cross-ideological coalition, and they really go at each other. So it’s not just on cases where there’s a left-right political split that these justices really will hammer each other.

There were also a number of cases where the Court didn’t decide big issues. Joan mentioned the EMTALA case out of Idaho. There was also the mifepristone case where they found that there was no standing. There was another case, Murthy v. Missouri, where they found no standing in challenging the Biden administration’s regulation of social media.

So if it were not for, I think, the Trump cases, we might be viewing this term as kind of a mixed bag, some non-ideological split, some not going as far as you might think. And some standard wins for conservatives, but of a normal trend line. But it’s hard, as I say, you can’t really take those two cases out.

The final thing I’ll say is that overshadowing the term, I think, were the ProPublica and other news stories about Justice Thomas and to some extent, Justice Alito also the story of Justice Alito’s flags, which undoubtedly made the most conservative justices on the Court feel a sense of siege. And I think that some of the anger that Joan identified in Justice Alito’s separate dissent in the EMTALA case might have been fueled in part by his sense that they’re out to get him.

ERWIN CHEMERINSKY: You both understandably start with Trump v. United States . The Supreme Court held that when the president is exercising official powers under the Constitution or statute, the president is absolutely immune from criminal liability, that the motive of the president doesn’t matter. And in fact, anything done in this realm can’t be used as evidence to establish liability in other realms of presidential power. Mike, how are you going to teach this class in your Constitutional Law course?

MICHAEL DORF: So that’s a great question. I edited the supplement to my casebook this year, and it’s I made it a principal case. As you know as an editor of your own casebook, you have this choice between making a case a feature or just a kind of what we call a squib case, just something on the side, and this is definitely a featured case.

I want to teach it as, on the one hand, how does this fit in or not fit in with the previous doctrine? So the majority opinion relies very, very heavily on Nixon v. Fitzgerald , which was the case that said that the president has essentially absolute immunity against civil lawsuits for his official acts while as president. And so Roberts seems to say, well, if he has immunity from civil acts, it follows a fortiori even more strongly he should have immunity against criminal prosecution because that’s even more serious, and there’s a certain logic to that.

But then you put it in a different context and you ask, well, how does this fit with the overall structure of the Constitution? I want to point to the difficulty of reconciling what the Court does in this case with the text of the impeachment clause, which says that somebody who is removed, that that doesn’t mean that they’re subject – that they’re criminally prosecuted, but they can be further prosecuted.

And even the Trump lawyers thought that an ex-president could be prosecuted for official acts after being successfully impeached and removed. They had this crazy argument that was a necessary condition, but they didn’t take this extreme position the Roberts Court took. So in some sense, the question really is teed up by Justice Sotomayor in her dissent when she says this, you’ve established what is essentially a monarchy here. You’ve put the president above the law.

And of course, I will probe students, well, what’s the Court’s answer to that? The Court’s answer is, well, no, he’s not above the law because part of the law is that the president is immune. Well, that’s kind of a magic trick that anybody can see through that. So the final thing, I don’t know how much. I’ll do this with my students because I try to be as, not neutral, but I try to be as balanced as I can. But the thing that was most amazing to me about this case is how they treated it as a case about a hypothetical future president rather than the former President Donald Trump, who incited an insurrection.

ERWIN CHEMERINSKY: Joan, when Gerald Ford pardoned Richard Nixon, no one, I remember well,  said it’s unnecessary for him to pardon Richard Nixon because Richard Nixon has absolute immunity from any criminal prosecution for anything done in office. And yet you’ve reported and wrote a wonderful piece for cnn.com that there was never dispute among the justices, the six conservatives from the first conference about the case, you said, always favored there’d be absolute immunity. Does that seem surprising to you?

JOAN BISKUPIC: It was. I think there’s – from start to finish, there’s been sort of a disconnect on this case between what the Court was doing and what the public expectations were. Just remember, they held nearly three hours of questioning on this case, and it really ran the gamut. There were so many different issues that they had to resolve.

And I think that it was, a lot of people who understand the Court’s thought, OK, there’s going to be a certain measure of vindication for Donald Trump. The lower court opinion from the DC Circuit is not going to stand. But yet this Court is not going to rule in a way that would give Donald Trump some sort of banner to wave on the campaign trail.

I felt that it would be as Michael has just referred to teaching his class some balance, I thought there would be much more of a regard for at least what Special Counsel Jack Smith was trying to do here. But what I learned, as you’re mentioning, Erwin, is that behind the scenes at their private session, the very next day after the Court had heard oral arguments, there was no ambiguity, there was no splintering.

John Roberts was ready to write with bold strokes that a former president is entitled to a presumptive, if not absolute, immunity for all official acts. And critically here, his construction of official acts as opposed to private ones is pretty extensive. There was some division with Justice Barrett, but it was actually minor in the whole scheme of things because she signed virtually all of his decision.

But it was the gap between what those of us in the courtroom heard and what happened the next day was pretty stunning, and I think that it gets back to my idea of how John Roberts approached this case. And to Michael’s point about the kind of hypothetical situation that was, again, divorced from reality because we’d already seen how the former president had acted, whether it was illegal across the board or if it was just Donald Trump back in 2020 and 2021 was there for all to see, so there was no kind of guesswork of what would happen down the road for the future president.

But John Roberts thought that he could say this is only about the presidency. It’s not about Donald Trump. He had that line in there in his final opinion, that said something like, unlike the political branches and the public at large, we can’t afford to fixate on the current president. We have to look beyond that. And, I have to say that he was, obviously influenced by his experience in the Ronald Reagan and George H. W. Bush administrations, but pushed it even further than we would have thought.

And the other thing I would mention is not just what I found out went on in conference, but just think of what has happened since. Think of how the special counsel has reacted to this and the dilemma that it’s creating. We’re taping this in August. I remember on July 1 when this opinion came down, and in the immediate days, there was a lot of discussion of how easy or hard this case was going to be to prosecute in light of what the justices had done.

But we know now at this point that Special Counsel Jack Smith has had to buy more time, buy even more time than the Court gave as it didn’t issue the mandate on the order for what 32 days or whatever it is. By law here that the special counsel has asked for even more time to try to figure out what actions of the former president’s would fall into definitely immune, presumptively immune things that would be private and not shielded from prosecution. It’s just not an easy standard to administer down the road.

ERWIN CHEMERINSKY: Each of you in your introductory remarks talked about the administrative law cases of the term. And for example, you both mentioned the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo , where the Supreme Court held that no longer should courts defer to agencies when they’re interpreting ambiguous statutes.

There was also the case Securities and Exchange Commission v. Jarkesy , which said that agencies can’t impose civil penalties, at least, in fraud cases. Those have to go to federal court. There was Corner Post v. Governors of Federal Reserve that said that a person can bring a challenge to an agency action six years after they’re injured. It’s not six years after the agency action.

To me, all of these things mark a real shift in authority from agencies to courts. And Mike, you mentioned the major questions doctrine that is also doing this, where the Court says that an agency can’t act on a major question of economic or political events unless there’s clear congressional guidance. Mike, if I can ask you the same question I did before, when you teach separation of powers, how are you going to teach these cases that are such a dramatic change in the law?

MICHAEL DORF: So the first thing I’ll say is I’m only going to teach the Jarkesy case in my Federal Courts class because you can’t possibly understand this as a first-year Constitutional Law student. You need to know all about the Court’s distinctions, fine-grained or impossible to understand between public rights, and private rights, and all of that.

So the Jarkesy case is, arguably, wrongly decided, but it falls into a kind of separate category. But Corner Post and Loper Bright are squarely within in the domain of separation of powers. Now, technically, you might think that Loper Bright isn’t a constitutional ruling. What the Court says is that the Chevron deference doctrine was in violation of the Administrative Procedure Act, which is a statute. The Administrative Procedure Act gives courts the authority to make decisions of law.

And they said by giving that power over to the agencies, we were violating the act, but it’s constitutionally inflected. The Court says at various points, quoting Marbury v. Madison , “It is emphatically the province and duty of the judicial branch to say what the law is.” And they say that allowing agencies to say what the law is usurps that power. So in a sense, you could discuss this case, the opening week of Constitutional Law when you’re talking about Marbury v. Madison .

When I teach that case, there’s Marshall’s argument, there are the counter arguments, and then there’s always the question, OK, so what exactly is the scope of this judicial power? And until now, that question has focused on somewhat interesting set of sub issues, like to what extent can the executive branch decide not to defend a law when it’s challenged because it’s going to exercise its own constitutional judgment? It’s a question of to what extent is the judiciary’s ability to say what the law is exclusive of other branches.

I think Loper Bright fits within that paradigm, in part. It’s the judiciary, not these administrative agencies. It happens that you can fit that into a separation of powers framework in which the administrative agency is part of the executive branch, but this also applies to so-called independent agencies. And so I think that while it fits within the constitutional paradigm of judicial power, versus legislative power, versus executive power, it’s really an attack on the administrative state.

Now, there’s a constitutional version of that and an ideological version of that. The constitutional version of that says, the Constitution creates only three branches. It gives the legislative power to the Congress, judicial to the Article III judiciary, executive power to the president, and giving what is effectively judicial power to administrative agencies doesn’t fit within that framework. That’s the constitutional way to understand it. And there’s a lot of scholarship that makes that argument. I don’t find it very persuasive, but I understand it, and we can have a discussion about that.

But then there’s the ideological frame, and that, I think, is what’s doing all the work, especially when you put this next to Corner Post , which is not about any big constitutional issue. It’s just an interpretation of a statute of limitations. And, no matter what the issue is, whether it’s statutory interpretation, whether it’s Constitutional law, whether it’s some hybrid, the answer seems to be for the Roberts Court, the agency loses. And that, I think, is best explained through an ideological lens that is hostility to regulation.

ERWIN CHEMERINSKY: All of these were 6-3 decisions. Both Loper Bright and Jarkesy were written by Chief Justice Roberts, Corner Post was written by Justice Barrett. How do you see these cases fitting into the overall jurisprudence of the Roberts Court over the last few years?

JOAN BISKUPIC: I would reinforce what Mike just said about the ideological framework here. So much of what former President Donald Trump was known for doing with the judiciary is appointing people who would reverse Roe v. Wade . But the administrative state was a real target for people like White House Counsel Don McGahn, who had a very strong hand in choosing who would get on this Court.

And a couple of times over already I’ve mentioned where Trump’s third appointee, Justice Barrett, has broken off, but she didn’t break off at all in any of these. She is 100% with the Trump appointees and the other conservatives in really wanting to diminish agency authority. I mean, that’s what this is all about. Justice Gorsuch has just written a book, that’s what this is all about. This has been an agenda item of the Chiefs and all six of them now in the conservative supermajority.

And I think it goes to your original point as you introduced this topic Erwin, and that is a kind of judicial supremacy here. This is not just taking power away from the agencies. It’s giving it to judges. And I think in dissent, Justice Elena Kagan in the Loper Bright decision referred to judicial humility being overcome by judicial hubris.

And just this idea that– actually, there was a line of the Chief’s that was something like, agencies don’t have any special competence in resolving ambiguous statutes, courts do. And that in and of itself is such a strange statement because the notion that agencies whose mandates are these statutes that they would not have any special competence to understand what their individual mandates are. It seems to be quite an extreme statement on its face, but I think it just goes to show that the real power here is being shifted to the judiciary.

And just one final note I’d make is that I spent a lot of time going back through the papers of Justice Stevens and Justice Sandra Day O’Connor for the Chevron case. And it was a decision that just hung by a thread by a six-justice bare majority. And Chief Justice Rehnquist and Justice Thurgood Marshall were out because of illness, and Justice Sandra Day O’Connor dropped out at the very last minute because of a conflict with her father, who had owned some property in the energy business.

So it was a decision that was Justice Stevens later wrote that he didn’t realize how big it was going to become, but it did become so big. So many courts have relied on it. The Supreme Court had at one point relied on it. But I was struck by how the Chief Justice John Roberts,really wanted to diminish the decision. I think he used the word decaying at one point. It’s decaying reasoning.

He just really gave it the back of his hand, almost the same way that the majority had given Roe v. Wade the back of its hand. Roe v. Wade and Casey is saying they were so poorly reasoned that there was no way to keep it, and that’s how I felt that he had regarded Chevron , despite the fact that Chevron had become something much larger than the original decision.

ERWIN CHEMERINSKY: Let me move to another case that was alluded to. And this wasn’t a 6-3, and it wasn’t a conservative result. It’s the United States v. Rahimi , which involved a federal statute. It prohibits those under a restraining order and a domestic violence case from having a firearm. And the Supreme Court, 8-1, upheld this. Though, there were seven different opinions, many of which were arguing about how to be an originalist or whether to be an originalist. Mike, again, I’d be interested in your reaction of how does this fit in the Second Amendment jurisprudence? And how do we teach this case, given all of the discussions about originalism within it?

MICHAEL DORF: So it’s a really interesting question whether Rahimi and the case that it somewhat cuts back on, which was two years earlier, New York State Rifle and Pistol v. Bruen, are actually originalism or something else, and I think Justice Barrett has spoken most thoughtfully about that. But just as a matter of the Second Amendment, in 2008, the Supreme Court for the first time recognized as an individual right to firearms. They extend that as a right against the state as well as the federal government in 2010. And then in 2022, they say it doesn’t just apply in the home, it applies out of doors as well, and so they struck down New York state’s gun licensing law.

I think a lot of us expected that result in the Bruen case in 2022. What we didn’t expect was the test that Justice Thomas, who wrote for the Court in Bruen, announced, which as he said, in order for a regulation of firearms to be valid, it must be analogous to a regulation that was widely accepted at the time of the founding, basically, 1791, when the Second Amendment is adopted, or possibly 1868, when the 14th Amendment is adopted and subsequently incorporates the Second Amendment against the states.

Now, the reason I say that’s not exactly originalism is because the flavor of originalism that has been dominant since Justice Scalia came to the Court is what is sometimes called public meaning originalism. You look to the public meaning of the words used. You don’t ask, well, what did the people who adopted this intend or expect?

What Bruen and I think Rahimi to some extent as well do, is they say, well, let’s look at who regulated firearms and to what extent? And that will give us a good sense of what people might have expected, but it doesn’t tell us anything about the meaning of the words in the Second Amendment. So there’s a real challenge there. Moreover, the Court has come to speak of this in terms of history and tradition. And histories and traditions can exist in tension with and not just in support of whatever words are in the Constitution. Sometimes people adopt a constitutional provision to make a change to what the existing practice is.

Now, as far as the actual holding in Rahimi , the case in a sense, decides itself. Sometimes the facts of a case will decide the case, and then it’s a question of putting the law to make it fit. You hear supporters of gun rights talk about the way to stop a bad guy with a gun is a good guy with a gun. Well, the protagonist here, Rahimi, was definitely a bad guy with a gun. He had repeatedly threatened his ex-girlfriend with a weapon and others. He was wanted suspect in five shootings, and he was subject to a protective order. And as a result, under a federal statute, he was criminally charged because if you’re subject to a state protective order that forbids you from carrying firearms and you carry a firearm, you violated a federal law.

It was inconceivable that the Supreme Court was going to say, yeah, the point of our Second Amendment jurisprudence is to allow domestic violence abusers to carry firearms and use them to threaten people even though they’ve got to stay away order. Nonetheless, Justice Thomas dissented. But on the facts of the case, I think it’s a pullback.

My question, I think, and I don’t think we have an answer to this is whether it tells us anything about constitutional interpretation, either in the Second Amendment context or more broadly going forward, because presumably at some point the Court will take a case involving Second Amendment rights with a more sympathetic character who’s using a gun, as they did in the Heller and McDonald cases, which were the first two, where it’s Heller is an off duty police officer who wanted to have a gun in his home, and he lived in a high crime neighborhood. So I don’t think we know whether what they’re doing in this case is going to have legs, jurisprudentially.

ERWIN CHEMERINSKY: In the earlier cases, Heller, Bruen , there were ideological challenges. There were suits for declaratory judgments. This is different than this is a criminal defendant being prosecuted. As a criminal defendant who has a record that shows he’s quite dangerous, hard to know what role it played. 

What I found odd about Chief Justice Roberts’ majority opinion is that he never talks about why this law is important in terms of saving lives in women’s lives. He wants to focus still on, well, in the 19th century, there were sufficient analogs like surety laws to make this law constitutional. Did you find that a significant omission in terms of what you’re saying, in terms of the legs of the approach of the Court?

MICHAEL DORF: In a way he’s boxed in because he wants to claim that he’s being faithful to the test that he signed on to in Justice Thomas’ opinion in the Bruen case, which says we’re not going to do what we do in other rights cases, so is there a compelling interest and is this law narrowly tailored to override it? That’s a pretty demanding test. You end up striking down a lot of laws applying that, but they don’t do that. They say it’s this historical test and therefore all you can do is look to analogies from the old days.

The closest I think he comes to trying to get the equity of the law in is through his recitation of the facts and showing what a bad guy Rahimi is. But of course, then you could say that’s just about Rahimi.

ERWIN CHEMERINSKY: Joan, one thing that’s interesting about this term is a significant increase in concurring opinions, and in that sense, Rahimi is representative. There were five concurring opinions, plus Justice Thomas’s dissent. What do you make of that trend, and what do you make of it in the context of this case?

JOAN BISKUPIC: Exactly how do you practice originalism? It just shows you the difficulty. About a week before Rahimi came out, there was the Vidal v. Elster case, that’s the Trump case where the justices really splintered. You talk about concurrences and trying to figure out how should this notion of history and tradition be applied to understanding? In that case, it was trademark law, but I thought that it foreshadowed what we some of what we then saw in Rahimi .

And in that case, Clarence Thomas announced the judgment of the Court. Clarence Thomas, who split off, obviously, in Rahimi , and who has always seen himself as someone following in the original footsteps of Scalia, or actually going much further than Scalia. But in that case, we had so many. Justice Kavanaugh wrote separately, Justice Barrett wrote separately, other justices wrote separately, and just all trying to give their different take on just how to use history and tradition to interpret. In that case, it was trademark law, but this is now obviously a Second Amendment provision.

Just as Elena Kagan spoke recently at the Ninth Circuit, and she actually brought up the idea of these many concurrences, I don’t think she was thinking specifically of either Rahimi or the Vidal v. Elster case, more thinking about just how everyone seems to have a different idea of where the Court should be going and some justices are breaking off separately. For example, in Trump v. U.S , Justice Sotomayor is leading the dissenting wing, and then Justice Jackson feels it’s important to also add her two cents.

So I think she was sort of speaking more broadly about concurrences, as you are here with this question, Erwin. But I did want to point out how it’s really shown how the original Bruen coalition on the Second Amendment from two years ago has divided.

ERWIN CHEMERINSKY: Let me talk about one final case, and that’s the case of the City of Grants Pass v. Johnson . And the reason I mentioned after what you just said is, is there a way of understanding this case that’s not ideological? It involves a city in Southern Oregon that is an unhoused population, much greater than the number of shelter beds.

The Ninth Circuit, following an earlier precedent, Martin v. City of Boise , said that it violates the Eighth Amendment for a city to make sleeping in public a crime if there aren’t adequate shelter beds. The Ninth Circuit said everyone has to sleep and you can’t punish the status of being homeless without violating the Eighth Amendment. The Supreme Court, 6 to 3, reverses the Ninth Circuit. Justice Gorsuch writes the majority opinion. Justice Sotomayor writes a blistering dissent, joined by Justice Kagan and Jackson. Is this just an ideological decision? 

MICHAEL DORF: Partly, yes. But note that here the ideology on the Supreme Court in this instance doesn’t exactly track what you find in the wider public. So it’s significant that as soon as the Court decides this case, or takes a month and a half or whatever it is, [California Gov.] Gavin Newsom is really pushing it. He’s going to use this authority to make unhoused people disappear somehow.

And so it’s not as though giving shelter to the unhoused is a popular item for elected Democrats either. To my mind, what this case underscores is how different the Roberts Court is from earlier Courts. And I have in mind the Court that decided Robinson v. California , which the Court in this case gives the back of its hand.

There, the Court said that you can’t make it a crime to be addicted to drugs. If there’s nothing you can do about your condition because you’re already addicted, that can’t be criminal. That’s that principle seems to apply to sleeping on the street if there’s no place for you to go. And the Court doesn’t buy it. But I think it’s significant that Robinson was not a unanimous opinion, but it did garner votes from conservatives. It was written by Potter Stewart, who was what we would now call, I think, a moderate conservative.

Justice Harlan concurs in the result. And so I think that there was an earlier time when the Court saw its role as protecting the most vulnerable who are not going to win in the political process. And to my mind, the ideological split you see here shows that judicial conservatives no longer think of that as part of their mission.

ERWIN CHEMERINSKY: That’s really profound. Joan, I would ask you about same thing I asked Mike, but also about what it says about Justice Sotomayor’s role.

JOAN BISKUPIC: You played right into what I was thinking about. I’ve been going through a lot of her opinions recently, and I was looking at her dissent in this case, Erwin, and I thought, if this isn’t a quintessential justice Sotomayor dissent, especially getting to exactly what Mike just said in that phrase, protecting the most vulnerable among us. When she first came on the Court, she was the one who would be dissenting from denial of cases brought by criminal defendants. She was someone who tended to always want to be a voice for the disenfranchised, the poor, the imprisoned. And now, she’s the most senior justice on the liberal side, so she’s certainly broadened her portfolio and she can keep the biggest cases, the biggest dissents, so to speak, for example, the Trump immunity case. And she was the one who wrote the dissent in the Jarkesy case

She passed on Loper Bright to Justice Kagan, but she kept Jarkesy for herself as she did in this case, and I think this case just really shows her core emphases. She opens that dissent by saying, sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. And she says, for people with no access to shelter, that punishes them for being homeless, that’s unconscionable, and that’s unconstitutional.

During the oral arguments, I should say, the room was really intense along these ideological lines. Chief Justice John Roberts isn’t as active from the bench, because he’s chief, and he’s not a traffic cop. He’s got to do many things. But in this case, he seemed perturbed, almost angry, at the arguments that were being put forward by the challengers to the Grants Pass law.

And the liberal justices were just taking up what you would — really, the banner that so closely hews to the left. The people at issue here are the people who really have nowhere else to go. There is nowhere else to go. They’re out of luck in so many ways, and you’re just going to reinforce with this kind of ruling, and that’s where you have it. And I think that’s probably why Justice Sotomayor kept this one for herself, as she did many of the other major dissents this term.

ERWIN CHEMERINSKY: I wanted to touch on one more topic, again, that both of you mentioned at the beginning, and that’s the issue of ethics. It was during this term, in November of 2023, that the Court promulgated its first code of ethics. Mike, as you pointed out, there were ethical issues concerning Justice Alito this term. There have been additional revelations with regard to Justice Thomas. I’d be interested in what your perception is from each of you of internally what is the ethics issue meant within the Court, and externally what’s it meant. 

JOAN BISKUPIC: I do think it hovered over the justices this whole term. Justice Thomas brought it up when he was traveling. He went down to the 11th Circuit, and he talked about what he perceives as this nastiness. I used to think that this didn’t really get to him because he’s obviously been subject to a lot of criticism since day one in 1991 with his confirmation hearings, and I thought he had just sort of gotten into the habit of looking beyond it and trying to do what he does, decide cases, but clearly, it’s gotten to him.

And I think Justice Alito is now in a whole other category because even though he would often be criticized for his rulings, he didn’t face as much of the criticism for his extracurricular behavior. And this time around, that really changed, especially with the inverted flags that were flown at his home here in suburban Washington, but then also another flag that was flown down at his vacation home on the Jersey Shore.

And he even had to take that step of writing to members of Congress about how his wife had hoisted those flags, in their home near Washington, in suburban Virginia as a result of a nasty spat with a neighbor, and so it was just it got very personal. His day-to-day at the Court became much more about these off bench controversies rather than what he was doing on the bench. And I do think that the fact that he lost cases, he overplayed his hand, which he tends to do, but he usually has people joining him. It was just not a very good term for him in terms of his personal goals.

Obviously, his conservatism was really answered in the Trump case and in the administrative state cases, so it’s not that he was losing across the board, but I did feel that the ethics issues had dogged him, and played a role in his overall bad term.

MICHAEL DORF: So I don’t have the same kind of access to internal sources at the Court that Joan does. But my sense is that they – and when I say they I mean virtually every member of the Court at this point – regard the ethics investigations and revelations, and calls for a stricter code, one with an enforcement mechanism, with a few exceptions, that they regard it primarily as an irritant, and partially as an affront. How dare you question my ethics? That’s the sense I get from Justices Thomas and Alito, and mostly as a public relations problem, and that they are not seriously committed to examining whether they need to have a stricter code with a real enforcement mechanism because they believe in their own integrity.

And I think that is a function of their sort of insulation. It’s of a piece with their refusal to allow cameras in the courtroom. There’s a kind of how dare you quality to it, which I think is not befitting the institution, but I understand that that is sort of characteristic, and it tends to be bipartisan, although not exactly on every issue.

09/03/2024 Topics: Constitutional and Regulatory , Faculty News

QUB LAW SOCIETY'S EIGHTEENTH EDITION

V  E  R  D  I  C T

• Oct 22, 2020

First Class Constitutional Law Essay LAW1021(Awarded a 73)

Updated: Oct 30, 2020

Submitted By: Silvia Martins

Ekins has argued 'Parliament should take seriously its responsibility for maintaining the balance of the constitution' and that 'parliamentarians should act to limit judicial power and thereby help to restore the political constitution and the common law constitutional tradition'.

What is the role of the judiciary in the UK constitution? Does the balance between the judiciary, executive and parliament need to be rebalanced?

Ekins, (2019). Protecting the Constitution: How and why Parliament should limit judicial power. London: Policy Exchange.

Introduction

The courts’ constitutional role has expanded greatly over the past few years. Today, and perhaps more than ever, the courts hold a position of central importance in relation to the concept of the rule of law and protection of individuals’ rights; principles which rank supreme in the UK’s constitutional order. Contemporary societal attitudes have possibly led to this change, along with the substantial increase in executive powers and the passing of the Human Rights Act 1998 (hereinafter HRA). The judiciary have developed grounded lines of judicial interpretation which are quasi-constitutional in nature to protect these fundamental rights. The rights enshrined in the HRA can only be enforceable through access to an independent judiciary; which has factually existed since 2005.

The doctrine of parliamentary sovereignty, the constitutional bedrock on which the UK’s constitution lies, has created notable political and legal debate. Thus, the ultimate power rests in the hands of the Westminster Parliament. Such a doctrine, in contemporary 21st century society, needs to be treated with caution when constitutional principles are raised. The courts have asserted themselves as the ultimate oversight body of Parliament, ensuring that the rule of law runs through all veins of the state.

This essay intends to make a briefly analysis on the role of the judiciary and how it has significantly contributed to the balance of the UK constitution. It is important to point out that this essay does not reject legislative sovereignty to establish judicial supremacy. What it suggests however, is a decentralisation of powers.

Constitutional role of the judiciary

When asking what the constitutional role of the judiciary is, it could be said that ‘Parliament makes the laws, the judiciary interpret them [1] ’. Nevertheless, judges themselves make law through the English common law tradition. This is done literally when courts interpret legislation (where the meaning of legislation is unclear or are deemed to be incompatible with constitutional principles, such as those in the HRA). Judges can go beyond the plain meaning of a statute when they interpret law in accordance with the HRA, this can be seen in the case of Ghaidan v Godin-Mendoza [2] . Here the court ruled that s.3 of the HRA is to be interpreted widely. It was ruled that the courts may read into words, or adopt a meaning that is linguistically strained, even if there are no ambiguities in the legislation. This is permitted even if it means that the court must depart from the apparent intention of the legislation.

Section 3 HRA gives the courts extensive powers — and, indeed duties — of constitutional interpretation. The word ‘possible’ seems overly broad, allowing the judges to apply their personal interpretation in the widest “possible" way (in accordance with the Convention); giving them the widest possible interpretative techniques, including reading existing provisions and even reading into the words which change their meaning. Subsequently, s.3 does not give a specific set of boundaries to the way that judges should interpret, and this permits the courts to exercise quasi-legislative powers, which might challenge the strict separation of powers.

Judicial review (JR) is another mechanism which allows the courts to go beyond mere interpretation. It is the key function of the courts to exercise their supervisory jurisdiction over public bodies and to ensure that those bodies observe the substantive public law principles. JR gives the courts the power to interpret the unwritten ‘constitution’ and declare void actions of the executive [3] and other public bodies if they are deemed to conflict with it. Regarding primary law, the courts can only make a declaration of incompatibility when Parliament legislates against the HRA, thus preserving parliamentary sovereignty [4] . Incompatible legislation remains valid/enforceable, whether it has been subject to a formal declaration of incompatibility.

When it comes to reviewing secondary legislation, the Supreme Court appears to share some features of a constitutional court. Any Acts made by the devolved legislatures are subject to judicial scrutiny on the grounds of its “constitutionality”. [5] The devolved bodies are subject to JR on the “ground that they have strayed beyond their legislative competence” [6] , transpiring that a devolved legislature has surpassed their delegated competencies. This will be invalidated by the court as ultra vires .

Constitutional Acts (as recognised in Thoburn v Sunderland City Council [7] ) require sensitivity because ultimately the courts could find themselves ruling on a point of law that alters the fundamental balance of devolution structures and ultimately the UK Constitution. Regarding the devolution Acts, the courts need to adopt a more sensitive approach. Robinson v Secretary of State for Northern Ireland [8] proves that the court exercised caution when dealing with constitutional statues such as the Northern Ireland Act 1998, otherwise, the court could have easily caused significant political instability in Northern Ireland. [9]

The Supreme Court can be seen to “play an essential role in ‘fleshing out’ the, sometimes skeletal, requirements of the ‘unwritten’ constitution” through the development of the principles of JR; rights recognised by the common law and through the requirements of the rule of law and separation of powers [10] . As has been demonstrated, JR is a fundamental function within the UK’s constitutional order, it is a method of holding public bodies accountable for their decisions. The development of JR principles provides some basic protection for individuals and allows people to have their rights vindicated by an impartial judiciary.

The urgent need for a constitutional change

In the UK, there is no codified constitution setting out the role and powers of the judiciary, executive or parliament. The country follows Montesquieu’s classical exposition of the separation of powers doctrine, nonetheless, defining the balance between the three branches becomes problematic. It should be kept in mind that with a lack of a constitution it is expected to see a certain degree of judicial interference in the political sphere, especially because the different elements that constitute the UK constitution (common law, statutes and conventions) may contradict each other and this is where judicial intervention might be necessary to ensure the smooth running of the state. Brexit procedures are the practical example of this.

In R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [11] it was argued that the exercise of the prerogative power to prorogue was a political, not legal, question. ‘If Parliament had a problem with it, it was for Parliament to sort it out’. This did not happen, in fact, the Supreme Court held the actions of the Prime Minister unlawful, which makes one question, why the courts had to intervene with this political issue if the Parliament is considered supreme?

Dicey’s orthodoxy declares that Parliament is sovereign; it has the power to make/unmake any law and do so without the possibility of its decisions being overridden or set aside by another body or person. [12] This theory does not hold balance as key to a successfully operational constitution. Firstly, the word ‘sovereign’ , with its absolutist undertones , could be viewed as being incompatible with the separation of powers, it is inconsistent with, or destructive of, separation of powers as it prevents any other bodies formulating a system of checks and balances on Parliament’s actions. Secondly, it is appreciated that the powers of each branch of government are determined by the principle of legality. Respective powers of parliament, executive and judiciary must be consistent with the principle of legality rather than the concept of sovereignty [13] . Thirdly, the House of Lords is not elected, so how can parliament be considered as the people’s representative if it is not fully elected?

Lord Woolf wrote that: "if Parliament did the unthinkable, then I would say that courts would also be required to act in a manner which was without precedent". [14] This might be paradoxical but it is important to note that the rule of law is also the keystone of the unwritten British constitution; and that is for the courts to protect and uphold that fundamental principle when an Act of Parliament is deemed to be unconstitutional. [15] Of course, this naturally leads to the predominance of the judiciary in the constitution, which goes against the desire of many, such as Ekins, for instance. Judges may not be elected , but they have consistently demonstrated their trustworthiness and credibility as guardians of the rule of law and protection of fundamental rights. Despite that, it is not advisable to place the judiciary in a central position within the constitution, as judges in fact do not represent the citizenry through the electoral system. [16]

A new political system where parliament would be supervised can be created through adopting a written constitution. In this system courts would make a “declaration of unconstitutionality” instead of a “declaration of incompatibility” when Parliament legislates against constitutional norms. [17] A “declaration of unconstitutionality” though judicial review would be a great remedy to protect fundamental rights. The constitution would be regarded as supreme and the sovereignty would be in the constitution, the individual bearer of rights, and law, rather than in any specific institution [18] . So, neither parliament nor the courts would have the 'last word' on any matter. This would doubtless maintain/preserve the balance of the constitution and all institutions (including parliament) would be bound by it.

It is difficult to establish the precise boundaries between the respective powers of the three branches without a codified constitution. So, the courts can , therefore, easily intervene in the political arena. The courts have been prodigious in calling the executive to account, however some matters are not justiciable as seen in Miller (No2), as it is categorised as ‘too political’.

Although the idea of parliamentary sovereignty was formed to allow supremacy of people’s interests, it is necessary to remember that Parliament is not fully elected. Thus, it is not convenient that parliament makes/unmakes any laws as it wishes, this might go against to the people’s desires in general or even contradict their individual liberties. As Rawls says “[…] in a just society the basic liberties are taken for granted and the rights secured by justice are not subject to political bargaining […]”. [19]

Opposing what Ekins says, the judiciary does not pose a danger to the traditional model of the UK constitution if judges continue to uphold the rule of law. In fact, it is the UK’s constitutional tradition that needs to be altered with by a written constitution or a Bill of Rights, which would, it is hoped, rebalance the powers of the judiciary, executive and parliament.

Table of authorities

Attorney General v National Assembly for Wales Commission [2012] UKSC 53

Duport Steels Ltd v Sirs [1980] 1 WLR 142

Ghaidan v Godin-Mendoza [2004] 2 A.C. 557

Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41

R. (on the application of Jackson) v Attorney General [2005] UKHL 56

Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390

Thoburn v Sunderland City Council [2002] WL 45403

Human Rights Act 1998

Bibliography

A.V. Dicey, The Law of the Constitution (1885)

Allan T., The Sovereignty of Law Freedom, Constitution and Common Law, Oxford University Press, (2013)

Bogdanor V., ‘The New British Constitution’ (Hart Publishing, Oxford and Portland, Oregon 2009)

Rawls J., ‘A theory of Justice’, Harvard University Press, (1971)

Journal Articles

Ekins R, Judicial supremacy and the rule of law, L.Q.R. [2003], 119, 127-152

Jenkins D., Common law declarations of unconstitutionality, International Journal of Constitutional Law, Volume 7, Issue 2, April 2009, pages 183–214

Lakin S., ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’, Oxford Journal of Legal Studies, Vol. 28, No. 4 (2008), pp. 709-734 < https://www.jstor.org/stable/20185394 > accessed: 25 April 2020

McCorkindale C. and others, ‘The courts, devolution, and constitutional review’. University of Queensland Law Journal, (2017)

Woolf L., ‘Droit Public – English Style’, Public Law (1995)

Masterman R., 'The UK Supreme Court: A Constitutional Court In All But Name? - Durham University' (Dur.ac.uk, 2020) < https://www.dur.ac.uk/research/news/thoughtleadership/?itemno=40221 > accessed 15 April 2020

[1] Lord Diplock in Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157 p.14. [2] [2004] 2 A.C. 557. [3] See R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. [4] See HRA 1998 s.4. [5] Vernon Bogdanor, ‘The New British Constitution’ (Hart Publishing, Oxford and Portland, Oregon 2009) at p.115 [6] Christopher McCorkindale and others, ‘The courts, devolution, and constitutional review’. University of Queensland Law Journal, (2017), pp. 289-310. [7] [2002] WL 45403 para 63. [8] [2002] UKHL 32, [2002] NI 390. [9] See other constitutional issues regarding devolution Acts in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61 and Attorney General v National Assembly for Wales Commission [2012] UKSC 53. [10] Roger Masterman, 'The UK Supreme Court: A Constitutional Court In All But Name? - Durham University' (Dur.ac.uk, 2020) https://www.dur.ac.uk/research/news/thoughtleadership/?itemno=40221 accessed 15/04/2020. [11] [2019] UKSC 41. [12] A.V. Dicey, The Law of the Constitution (1885), pages 39-40. [13] Stuart Lakin, ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’, Oxford Journal of Legal Studies, Vol. 28, No. 4 (2008), pp. 709-734 <<https://www.jstor.org/stable/20185394>> accessed: 25-04-2020. [14] Lord Woolf, ‘ Droit Public – English Style’ , Public Law (1995) pages 57–71. [15] See R. (on the application of Jackson) v Attorney General [2005] UKHL 56 para 107. [16] See Richard Ekins, Judicial supremacy and the rule of law , L.Q.R. [2003], 119, 127-152. [17] See David Jenkins, Common law declarations of unconstitutionality, International Journal of Constitutional Law, Volume 7, Issue 2, April 2009, pages 183–214. [18] Trevor Allan, The Sovereignty of Law Freedom, Constitution and Common Law, Oxford University Press, (2013), ch. 1. [19] See John Rawls, ‘A theory of Justice’, Harvard University Press, (1971), pages. 27-28.

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Intro.8.1 Interpreting the Constitution Generally

Early in the history of the United States, the Supreme Court began to exercise the power that it is most closely and famously associated with—its authority of judicial review. In its 1803 decision in Marbury v. Madison , ALDF_00015931 the Supreme Court famously asserted and explained the foundations of its power to review the constitutionality of federal governmental action. ALDF_00015932 During the two decades following its holding in Marbury , the Court decided additional cases that helped to establish its power to review the constitutionality of state governmental action. ALDF_00015933 If a challenged governmental action is unconstitutional, the Court may strike it down, rendering it invalid. ALDF_00015934 When performing the function of judicial review, ALDF_00015935 the Court must necessarily ascertain the meaning of a given provision within the Constitution, often for the first time, before applying its interpretation of the Constitution to the particular governmental action under review.

The need to determine the meaning of the Constitution through the use of methods of constitutional interpretation and, perhaps, construction, ALDF_00015936 is apparent from the text of the document itself. ALDF_00015937 While several parts of the Constitution do not lend themselves to much debate about their preferred interpretation, ALDF_00015938 much of the Constitution is broadly worded, leaving ample room for the Court to interpret its provisions before it applies them to particular legal and factual circumstances. ALDF_00015939 For example, the Second Amendment reads, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. ALDF_00015940 The text of the Amendment alone does not squarely resolve whether the right of the people to keep and bear [a]rms extends to all citizens or merely is related to, or perhaps conditioned on, service in a militia. This ambiguity prompted a closely divided 2008 decision of the Supreme Court that ruled in favor of the former interpretation. ALDF_00015941

The text of the Constitution is also silent on many fundamental questions of constitutional law, including questions that its drafters and those ratifying the document could not have foreseen or chose not to address. ALDF_00015942 For example, the Fourth Amendment, ratified in 1791, does not on its face resolve whether the government may perform a search of the digital contents of a cellphone seized incident to arrest without obtaining a warrant. ALDF_00015943 Thus, interpretation is necessary to determine the meaning of ambiguous provisions of the Constitution or to answer fundamental questions left unaddressed by the drafters. Some commentators have also noted the practical need for constitutional interpretation to provide principles, rules, or standards to govern future conduct of regulated parties, as well as political institutions, branches of government, and regulators. ALDF_00015944

When deriving meaning from the text of the Constitution, the Court has relied on certain methods or modes of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution. ALDF_00015945 There is significant debate over which sources and methods of construction the Court should consult when interpreting the Constitution—a controversy closely related to more general disputes about whether and how the Court should exercise the power of judicial review.

Judicial review at the Supreme Court, by its very nature, can involve unelected judges ALDF_00015946 overturning the will of a democratically elected branch of the Federal Government or popularly elected state officials. Some scholars have argued that in striking down laws or actions, the Court has decided cases according to the Justices’ own political preferences. ALDF_00015947 In response to these concerns, constitutional scholars have constructed theories designed to ensure that the Justices following them would be able to reach principled judgments in constitutional adjudication. In 1987, Professor Richard Fallon of the Harvard Law School divided interpretivists, or those purporting to prioritize the specific text and plain language of the Constitution above all else, into two basic camps: On one side stand ‘originalists,’ whom he characterized as taking the rigid view that only the original understanding of the language and the framers’ specific intent ought to count. On the other side, ‘moderate interpretivists’ allow contemporary understandings and the framers’ general or abstract intent to enter the constitutional calculus. ALDF_00015948 Whether or not Professor Fallon’s precise description at the time was accurate, those regarding themselves as originalists have clarified that the Court should rely on the fixed meaning of the Constitution as understood by at least the public at the time of the founding. ALDF_00015949 This has become known as the original public meaning of the Constitution.

On the other hand, still other commentators have questioned the legitimacy of fixating on what the Framers, ratifiers, or members of their generation might have considered the core meaning of a particular provision of the Constitution, and have instead suggested interpretive methods that ensure the Court’s decisions allow government to function properly, protect minority rights, and safeguard the basic structure of government from majoritarian interference. ALDF_00015950 Although the debate over the proper sources of the Constitution’s meaning remains unresolved, several key methods of constitutional interpretation have guided the Justices in their decision making and, more broadly, have influenced constitutional dialogue. ALDF_00015951

It is possible to categorize the various methods that have been employed when interpreting the Constitution. ALDF_00015952 This essay broadly describes the most common modes of constitutional interpretation; discusses examples of Supreme Court decisions that demonstrate the application of these methods; and provides a general overview of the various arguments in support of, and in opposition to, the use of such methods by the Court. The modes discussed in detail in this essay are: (1) textualism; (2) original meaning; (3) judicial precedent; (4) pragmatism; (5) moral reasoning; (6) national identity (or ethos ); (7) structuralism; and (8) historical practices.

In explaining these modes, this essay is merely describing the most common methods on which the Justices (and other interpreters) have relied to argue about the meaning of the Constitution. ALDF_00015953 Depending on the mode of interpretation, the Court may rely upon a variety of materials that include, among other things, the text of the Constitution; constitutional and ratification convention debates; prior Court decisions; pragmatic or moral considerations; and long-standing congressional or legislative practices. ALDF_00015954 It is important to note that the Court may use more than one source in deciding a particular case, and the Justices must exercise some discretion in choosing or coordinating the sources and materials they will consult in making sense of those sources. ALDF_00015955 A discussion of these modes of interpretation and the materials the Justices rely upon will aid the reader in understanding the motivating principles behind the Court’s decisions, as discussed in further detail in the Constitution Annotated .