Interpreting the Constitution

Interpreting the Constitution. When I come across a book review, an interview, or a report that I believe addresses a subject of importance to judges and offers valuable insights, I will share it with you. What prompts me to write to you today as Flaschner begins another year of programs and events is an insightful interview with Professor Cass Sunstein, who is the Robert Walmsley University Professor at Harvard Law School. During President Obama’s first term, he was the Administrator for the Office of Information and Regulatory Affairs. He is the author of dozens of books, including Nudge (with Richard Thaler) and The World According to Star Wars. His most recent book is How to Interpret the Constitution.

Professor Sunstein, who served as a law clerk for Justice Benjamin Kaplan of the Supreme Judicial Court and then for Justice Thurgood Marshall of the United States Supreme Court before embarking on a career as a teacher and writer, is one of those rare people who has thought deeply about the Constitutional Law, among many other things, and has a gift for explaining what he has learned and thinks in simple but meaningful terms. What makes his latest book so useful is that it is not a defense of any particular theory or approach to constitutional interpretation, but instead an explanation of what undergirds each of the major approaches and a respectful effort to understand their strengths and weaknesses. I strongly encourage you to listen to a recent interview (August 15, 2023) with Professor Sunstein about his new book (or read the transcript which also is available) that was conducted by Justin Kempf on the podcast Democracy Paradox which is available here:

Cass Sunstein on Interpreting the US Constitution – Democracy Paradox

In addition to the above interview, the National Constitution Center is hosting a special program with Professor Sunstein, who will be discussing his latest book on Thursday, September 28th at 12:00 noon. Sunstein will be joined by leading constitutional expert Philip Bobbitt of Columbia Law School to discuss the current controversies surrounding constitutional interpretation and provide their takes on the competing methodologies. Jeffrey Rosen, president and CEO of the National Constitution Center, will moderate. Registration for this event is free.  See Event – How to Interpret the Constitution: A Citizen’s Guide | Constitution Center

Flaschner’s SCOTUS Year-in-Review. The programs referred to above with Professor Sunstein will help prepare you for a Flaschner program on Wednesday, October 18, 2023, from 4:00 p.m. to 6:00 P.M. via Zoom in which our President and Dean, SJC Justice Scott Kafker, will moderate a conversation about the most recent term of the United States Supreme Court with Boston University Law School Professors Jim Fleming and Gary Lawson. Justice Kafker is the author of “State Constitutional Law Declares Its Independence: Double Protecting Rights During a Time of Federal Constitutional Upheaval,” 49 Hastings Const. L.Q. 115 (2022), and a forthcoming article on the recent decision by the United States Supreme Court in Moore v. Harper, No. 21-1271, __ U.S. __ (June 27, 2023).

Hon. Peter W. Agnes, Jr. (Ret.)
Chief Executive Officer, Flaschner Judicial Institute

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