Article

Unbundling Constitutionality

Richard Primus

Professor of Law, The University of Michigan Law School

Share The University of Chicago Law Review | Unbundling Constitutionality on Facebook
Share The University of Chicago Law Review | Unbundling Constitutionality on Twitter
Share The University of Chicago Law Review | Unbundling Constitutionality on Email
Share The University of Chicago Law Review | Unbundling Constitutionality on LinkedIn

Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are associated with constitutionality than to the question of constitutional status itself.

PDF

TABLE OF CONTENTS

Constitutional Law

Article

Volume 92.5

Constitutional Rights as Protected Reasons

Stephanie Hall Barclay

Professor of Law at Georgetown University Law Center and Faculty Co-Director of the Georgetown Center for the Constitution.

For very helpful comments, conversations, and encouragement on this draft and earlier versions of this project, the author thanks Joel Alicea, Howard Anglin, Kristina Arriaga, Randy Barnett, William Baude, Rachel Bayefsky, Joseph Blocher, Samuel Bray, Christian Burset, Jud Campbell, Louis Capozzi, Piero Ríos Carrillo, Conor Casey, Nathan Chapman, Aimee Clesi, Nicholas Cole, Steve Collis, Caroline Mala Corbin, Katherine Mims Crocker, Marc DeGirolami, Michelle Dempsey, Alma Diamond, Hasan Dindjer, Richard Ekins, Timothy Endicott, David Enoch, Bridget Fahey, Richard Fallon, John Finnis, Frederick Gedicks, Nazila Ghanea, Sherif Girgis, Raphaël Grenier-Benoit, Simona Grossi, Jeremy Gunn, John Harrison, Michael Helfand, Richard Helmholz, Don Herzog, Steven Heyman, Kristin Hickman, Jessie Hill, Heidi Hurd, Michael Kang, Paul Kerry, Andrew Koppelman, Konrad Ksiazek, Genevieve Lakier, Lia Lawton, Douglas Laycock, Robert Leider, Tyler Lindley, Christopher Lund, Elinor Mason, Michael McConnell, Stefan McDaniel, Bradley Miller, Darrell Miller, Paul Miller, Robert Miller, Christina Mulligan, Jim Oleske, Filipa Paes, James Phillips, Richard Pildes, Jeffrey Pojanowski, Zachary Price, Haley Proctor, Eric Rassbach, Richard M. Re, Bradley Rebeiro, Veronica Rodriguez-Blanco, Zalman Rothschild, Angelo Ryu, Stephen Sachs, Josep Tirapu Sanuy, Micah Schwartzman, Amanda Shanor, Reva Siegel, Geoffrey Sigalet, Lawrence Solum, Anna Stelle, John Stinneford, Mark Storslee, Michael David Thomas, Rebecca Tushnet, Francisco Urbina, Pía Chible Villadangos, Eugene Volokh, Derek Webb, Grégoire Webber, Lael Weinberger, Andrew Willinger, John Witte, Kara Woodbury-Smith, Ilan Wurman, Paul Yowell, Mary Ziegler, the participants at the Women in Legal Philosophy Conference at Villanova Law School, the First Annual UChicago Constitutional Law Conference, the Oxford Public Law Discussion Group, the Oxford University Bonavero Institute of Human Rights Works-in-Progress session, Federalist Society Junior Scholar Panel at Association of American Law Schools, the Salmon P. Chase Colloquium, the Georgetown Law School Works-in-Progress session, the Minnesota Law School Works-in-Progress session, the Pepperdine Law School Nootbaar Fellows workshop, the Northwestern Law School Works-in-Progress session, the Northwestern Law School Public Law Colloquium, and the Stanford Law School Constitution Center Works-in-Progress workshop. For excellent research assistance, the author thanks Nat Deacon, Chris Ostertag, Jacob Feiser, Mathias Valenta, Anneliese Ostrom, and Athanasius Sirilla.

Professor Stephanie Hall Barclay proposes and defends a new theoretical model of constitutional rights. While virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights and generally hold out the judiciary as the primary guardian of these rights, this Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. It proposes and defends an alternative model that is more consistent with democratic principles and the institutional competencies of the various branches of government.

Constitutional Law

Online

Essay

Constitutional Amendment by State Statute? The Case of Dual Sovereignty in Illinois

Luke Henkel

J.D. candidate at The University of Chicago Law School, Class of 2026.

Thank you to Tyler Ashman and Liam Haffey for providing helpful feedback and assistance on this Case Note.

The Constitution’s Double Jeopardy Clause allows successive criminal prosecutions for the same conduct so long as they are pursued by separate sovereigns (such as two different states). This Case Note examines Illinois law to argue that state statutes are a useful, though imperfect, means of addressing the dual sovereignty doctrine. It argues further that the details of statutory language are highly consequential to whether states can scale back dual sovereignty in practice.

Constitutional Law Criminal Defense Criminal Procedure Jurisdiction State Law

Online

Essay

United States v. Harris: A Hard Sell for Involuntary Medication of Defendants

Rachel Caldwell

Rachel Caldwell is a J.D. candidate at the University of Chicago Law School, Class of 2025.

This Case Note offers some direction for handling competing interests in this developing body of law and other complex cases weighing intersecting constitutional rights against governmental interests. Parts I and II provide background information, describing the Sell test and the current state of constitutional and statutory religious protections. Part III critically analyzes how courts, including the Fifth Circuit, have considered religious objections in Sell determinations so far. Because such analysis remains underdeveloped in the courts, Part IV suggests frameworks for coherently integrating Free Exercise doctrine into Sell inquiries based on the “hybrid theory” of constitutional rights.

Constitutional Law Criminal Law Criminal Procedure