Constitutional Interpretation and Change

  • September 26, 2017

    by Zinelle October, vice president of Network Advancement at the American Constitution Society

    This year, our Constitution in the Classroom (CITC) program’s curriculum focused on the First Amendment and its foundational rights: the freedoms of speech and press, assembly and petition, and religious freedom. We are proud to announce that we had 42 volunteers who taught nearly 2,000 students across the country.

    This accomplishment could have not come at a better time.

  • August 16, 2017
    Guest Post

    by Dan Froomkin

    *This piece is part of the ACSblog symposium: The Department of Injustice

    Over the summer, Donald Trump’s political combativeness and anti-regulatory zeal have increasingly made their way into legal filings by the Department of Justice that represent dramatic reversals from the Obama era.

    The department’s starkest and most politically motivated reversal came in a case about how voters are purged from voting lists in Ohio, a crucial swing state.

  • April 18, 2017
    Guest Post

    by Jim Brosnahan, Senior Trial Counsel, Morrison & Foerster, and Author of the Upcoming Book: Trial Lawyer

    The Gorsuch confirmation hearings were, even to a casual observer, a catastrophic insult to the proper selection of a justice. Even by the standard that such hearings are political and not legal events, it highlighted the current failure of the practice of the political arts. Any selection of a Supreme Court Justice with lifetime tenure is a politically sacred happening. At this time, the reckless, almost daily, unconstitutional bursts of illegal energy emanating from the White House and supported by an attorney general who missed the Constitutional Law class will present a series of clear and present fundamental legal challenges to the Supreme Court. Nothing in what now-Justice Gorsuch testified to or what the ten million dollars in TV ads supporting him said gave the slightest assurance he will uphold the Constitution against this president. In all likelihood, that set of potential constitutional issues involving executive excess is the number one potential legal challenge that will face the Court in the next year or two.

    FALSE STANDARDS USED BY SENATORS

    1. “He is qualified”

  • April 6, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

    Progressive litigators who have to deal with the Supreme Court unsurprisingly count votes and understand that to win there they have develop arguments that have some chance of getting votes from Justice Kennedy and perhaps Chief Justice Roberts. That leads them into what I have called a defensive crouch: Maybe we can win by showing how what we think the Constitution means in this specific case is consistent with what Justice Kennedy has said the Constitution means in some other case.

    For a litigator that is a sensible tactic (though not the only one – sometimes you can ask for the sky and let the justices think of themselves as moderates by coming up with a solution that gets you pretty much what you wanted in the first place). And, to the extent that scholars think of themselves as providing reflective or theorized arguments that litigators can adopt, it is also a sensible course for some progressive scholarship – even if that scholarship sometimes seems to treat Justice Kennedy implausibly as having especially deep insights into what the Constitution really means.

    But defensive crouch arguments are not the only ones worth making. Rousseau described his project as taking people as they are and laws as they might be. There is a similar project for progressive constitutional scholarship of taking the Constitution as it is and the Supreme Court (and Congress and the polity) as it might be. I call that the project of utopian constitutional theory.

  • April 6, 2017
    Guest Post

    *This is the first piece in the ACSblog symposium: "The Future of the U.S. Constitution"

    by Dawn Johnsen, ACS Board of Advisors Member and Walter W. Foskett Professor of Law, Indiana University Maurer School of Law

    Over the next week, the ACSblog will feature posts from some of the nation’s leading constitutional law experts as they prepare to gather on Friday, April 14 at the Indiana University Maurer School of Law to examine “The Future of the U.S. Constitution.” ACS and the Indiana Law Journal (ILJ) join Maurer School of Law as co-sponsors for this symposium in Bloomington, Indiana, and a live stream will make the day available to all, at youtube.com/iumaurerlaw. The symposium participants have been active in academia and public life, including in government, nonprofit advocacy and as members of the ACS Board of Academic Advisors. They will address the great constitutional challenges of our time: presidential power, judicial review, congressional dysfunction, political polarization and mobilization, economic inequality, plutocracy, immigration, race, religion, refugees, abortion, guns, voting, disenfranchisement, presidential conflicts of interest, anti-intellectualism, disdain for facts, discrimination, exclusion, nativism and justice. A special ILJ symposium issue is forthcoming in September 2017, with essays from participants and several others. In the meantime, we hope you will enjoy this special ACSblog series on “The Future of the U.S. Constitution.”