This seminar will explore contemporary controversies about, and the actual practice of, constitutional interpretation, with a non-exclusive focus on the Supreme Court of the United States. Among the topics to be discussed are: varieties of originalism, textualism, living constitutionalism, and common-law constitutionalism; the nature and role of precedent in constitutional decision-making; changing conceptions of legal sources and the increasing importance of non-traditional or “non-legal” sources; the relationship between theories of constitutional interpretation and theories of law and of legal reasoning; constitutional interpretation in lower federal courts, in state courts, and outside of the United States; and empirical studies of the actual practice of constitutional interpretation and of the effect of theories of constitutional interpretation on actual constitutional outcomes and on actual constitutional decision-making.
Materials will be drawn from Supreme Court cases, academic articles, excerpts from books, excerpts from Supreme Court confirmation hearings, and reports and articles from the press.
Students will complete one substantial paper on a topic of their choosing, the topic to be chosen in consultation with the instructor. Instructor feedback on topic selection, outlines, research methods, sources, and drafts is available and encouraged. The final papers will satisfy the substantial analytic writing requirement.