Universities as Constitutional Law Makers (and Other Hidden Actors in Our Constitutional Orders)

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. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution or to a Living Constitution, which looks something like the textual Constitution plus Justice Kennedy\u27s morning prandial consumption. These stories are so familiar to us that we know the case names from memory-on the side of individual rights, Dred Scott v. Sandford, Brown v. Board of Education, Miranda v. Arizona, Roe v. Wade, Lawrence v. Texas, and those concerning (limits on) the powers of government to promote the public good, McCulloch v. Maryland, Lochner v. New York, Wickard v. Fillburn, United States v. Morrison, National Federation of Independent Business v. Sebelius. Like Bunker Hill, Gettysburg, Omaha Beach, and Gulf of Tonkin, these names are written in our nation\u27s history in bold print, designating the places where our national identity was forged and our ideals were vindicated, or not. 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. For example, the Supreme Court recognizes as fundamental rights those rights that are deeply rooted in the history, legal traditions, practices, and conscience of the American people. Those traditions and that conscience are generally expressed in federal and state statutes, other state and local laws, customs, the ethical codes of professional associations, and the laws of other institutions outside the national government. Those institutions settle and specify the contours of the rights and duties. The Supreme Court of the United States merely describes what has already taken place. So, even if we were to accept that constitutional law is concerned only with individual rights and government powers, we must look to legislation, state law, common law, and private law to find the foundations and the raw materials of constitutional law. 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