Faculty Weigh Solutions to Current Constitutional Crises

updated 10/12/2021

As the U.S. Supreme Court prepares for the start of its new term, the nation finds itself still battling a devastating pandemic, and facing the challenges of systemic racial injustice, a broken immigration system at the country’s southern border, and state measures to severely limit abortion rights. At the Law School’s annual Constitution Day event, faculty members discussed the current crises that have been exacerbated by unprecedented partisan divisions and the democratic political process’s ability to manage them.

This year’s event for the Law School community, Constitution in Crisis, featured remarks by Professors William Araiza, Wilfred U. Codrington III, Joel Gora, Susan Herman, and Alice Ristroph.

The event also marked the launch of Codrington’s new book, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union (with John F. Kowal) (The New Press, 2021), which examines the history and future of constitutional change in America through its 27 amendments. In his remarks, Codrington acknowledged the range and severity of the crises, while stressing that the current state is not unprecedented. In previous periods of upheaval, the political system responded with legislation and constitutional amendments to meet the needs of the times.

The panelists shared examples of robust public and scholarly dialogue on changing the Constitution. Herman discussed her work with the Brooklyn Public Library’s 28th Amendment Project, which invited the public to town halls in local library branches to share ideas for a new amendment. Gora turned to the National Constitution Center’s Constitution Drafting Project, in which three teams of leading constitutional scholars—including Vice Dean Christina Mulligan—were invited to draft their ideal constitutions. Gora called the project a source of “sober and realistic ideas” for reform.

“As pressing as some issues seem, in our halting way, we have been trying to deal with many of them,” said Gora. “The constitutional law casebook is twice as large as it used to be [when I attended law school], due to the explosion of rights we have been granted.”

Araiza and Ristroph blamed the current structure of political power for the difficulty in ratifying new amendments. Araiza emphasized the need for dynamism in the political and social culture to enable representatives to move across party lines, while Ristroph pointed out that the founders drafted the Constitution before the development of the country’s two-party system, which drives partisanship.

“One of the connecting themes [of today’s panel] is a concern about partisanship and extreme cultural and social division,” said Ristroph. “That theme is important.”

Members of the constitutional law faculty have also marked the start of the new term with events and articles reflecting on the current state of the Constitution:

• In the New York Daily News, Herman discussed ideas that arose from the Brooklyn Public Library's 28th Amendment Project.
   
• Professor Alexis Hoag participated in the Constitutional Accountability Center’s panel discussion Still Laying Claim, discussing whether the idea of originalism could support outcomes desired by progressives. She was also quoted in a CNN story about Justice Sonya Sotomayor’s predictions for the new term.
  
  
• In articles in The Atlantic and Politico, Codrington discussed the possibility of significant constitutional reform. He will also be participating in The Crisis of Two Constitutions: The Founders’ v. the People’s at the National Constitution Center Oct. 26.
  
  
• In Law360, Araiza weighed in on the possibility of a conservative windfall this term.


• At the Brooklyn Book Festival, Herman and Codrington participated on the panel The Struggle to Get Rights Right hosted by the Law School.