Common Law Constitutionalism

One of Chicago’s Best Ideas, developed by Professor David Strauss, is that our constitutional law develops primarily in a common law fashion rather than through application of the constitutional text.  Strauss has further argued that this common law approach is superior to an “originalist” approach to the Constitution because it allows for needed innovation while still imposing meaningful constraints on judges.  Professor Bradley will describe the case for common law constitutionalism as well as some of the leading critiques of this theory.  He will also consider the implications for this theory of the recent upsurge in support on the Supreme Court for originalism and textualism, and, relatedly, the Court’s possible willingness to overturn precedents like Roe v. Wade.

This convening is open to all invitees who are compliant with UChicago vaccination requirements and, because of ongoing health risks, particularly to the unvaccinated, participants are expected to adopt the risk mitigation measures (masking and social distancing, etc.) appropriate to their vaccination status as advised by public health officials or to their individual vulnerabilities as advised by a medical professional. Public convening may not be safe for all and carries a risk for contracting COVID-19, particularly for those unvaccinated. Participants will not know the vaccination status of others and should follow appropriate risk mitigation measures.