Section on Constitutional Law
Marina Salon D, South Tower/Level 3, San Diego Marriott Hotel & Marina
Is American Constitutional Law in Crisis?
(Program to be published in Constitutional Commentary)
One or more presenters were selected from a call for papers.
American constitutional doctrine appears to have problems. In the commerce clause area, Raich is hard to reconcile with Morrison. Regarding substantive due process, the Supreme Court was cautious in Glucksberg but bold in Lawrence. Moreover, two similar partial abortion cases reached opposite results. On equal protection, the Court states that it has three levels of scrutiny but it actually uses several other variations. The Court in Grutter said it was using strict scrutiny but was actually deferential to the affirmative action plan. The Court’s hate speech opinion, R.A.V., announced that previously unprotected expression could sometimes receive protection. Professor Laurence Tribe’s decision not to continue writing his treatise further illuminated the doctrinal dilemma. These differing results can lead to charges of judicial legislating. For law professors, this situation makes teaching and doing scholarship more challenging. This panel of distinguished scholars and jurists will address whether American constitutional law is in doctrinal chaos, or whether these are the acceptable consequences when difficult constitutional questions come before a divided Court interpreting an old constitution. It will also explore the causes of the current situation, and examine what role law professors should play in addressing these matters.
Business Meeting at Program Conclusion.
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