Universities as Constitutional Lawmakers (And Other Hidden Actors in Our Constitutional Orders)
17 University of Pennsylvania Journal of Constitutional Law Online 1 (2014)
15 Pages Posted: 16 Jul 2016
Date Written: September 2013
In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things — individual rights and the powers of government — and it is settled by the Court which was established by Article III of our national Constitution. But these stories are not entirely accurate. For one thing, much of what we know as constitutional law is settled by institutions other than the Supreme Court and derives from sources other than the written Constitution. Public law is built upon the foundation laid by the common law using materials constructed not only by legislatures but also by institutions of private ordering. Furthermore, the written Constitution does not answer every question. The Framers gave us a Constitution that leaves much of the definition of rights, wrongs, duties, and obligations to private law and state common law.
Prominent among private makers of constitutional law are universities, which shape the rights and duties not only of their constituent members but also of many people within their political communities. Here I consider how these actors exercise their considerable power.
Keywords: constitutions, constitutional rights, private ordering, intermediary institutions, associational liberty, self-constitution
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