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Constitution Day Panelists Seek to ‘Resolve Disagreements a Little Less Disagreeably’ 



By Jordan Poll 
September 29, 2016

The 17th of September marks the anniversary of one of the most influential documents in U.S. history—the Constitution. Since its signing in 1787, and then its taking effect in 1789, the Constitution has served as the foundation of our nation and our government. It has defined and protected the rights of American citizens, both born and naturalized, for nearly 230 years. And as a panel of Michigan Law faculty noted during the recent Constitution Day celebration, it is a document ever evolving in its interpretation and application with each decision made by the courts.Constitution Day 2016

Michigan Law hosts the University of Michigan's annual Constitution Day commemoration. This year, with the Supreme Court having been in the headlines because of recent landmark decisions and the death of Justice Antonin Scalia, faculty gathered to discuss the resulting impacts on constitutional law.

Professor Richard Primus, who teaches the law, theory, and history of the U.S. Constitution and is a consultant with governmental agencies, nonprofit organizations, and private businesses on their constitutional queries, discussed the constitutional status of affirmative action in light of the Fisher v. University of Texas case. "The text of the Fourteenth Amendment's Equal Protection Clause does not say that the government may not differentiate between people on the basis of race," explained Primus, who is the Theodore J. St. Antoine Collegiate Professor of Law. And indeed, he pointed out, "the state and federal governments in the years soon after the adoption of the Equal Protection Clause did many things that differentiated among people on the basis of race, some of which would today be thought of as garden-variety racial discrimination and some of which would be thought of as affirmative action. So as an original matter, it's hard to say that the Fourteenth Amendment prohibited affirmative action, just as it's hard to say that the Fourteenth Amendment as an original matter prohibited segregation."

Christina Whitman, '74, the Francis A. Allen Collegiate Professor of Law and a professor of women's studies, discussed the constitutional status of abortion in the wake of another influential Texas case: Whole Woman's Health v. Hellerstedt. "It is a really, really boring opinion, and I think that is amazingly wonderful. I think it reflects a big change on how the Supreme Court talks about abortion," said Whitman, whose research interests include federal courts, constitutional litigation, torts, and feminist jurisprudence, with a particular focus on questions of personal and institutional responsibility. Governmental attempts to discourage women from seeking abortions have long been permitted. However, in Hellerstedt, the Court made it clear that laws targeting abortion providers without offering any real health benefits are unconstitutional. Whitman explained that while the decision of Roe v. Wade still stands; it is not on solid ground, especially in light of the upcoming presidential election and the Supreme Court vacancy caused by Justice Scalia's death.

Bruce Frier, the John and Teresa D'Arms Distinguished University Professor of Classics and Roman Law, examined the fallout of another high-profile issue by discussing the legal climate surrounding same-sex marriage since the Obergefell decision. Despite the widespread euphoria after the ruling, much resistance remains. "New non-discrimination legislation, particularly at the state level, seems to be stuck in a stalemate because of concern for the potential effects on those holding religious beliefs in opposition to same-sex marriage," Frier said. "This stalemate needs to be broken, if possible, before progress can occur, but a way out is difficult to see."

Because of his influence as well as the political jockeying to now fill his seat, the panelists noted that no discussion of recent developments in constitutional law would be complete without paying tribute to Justice Scalia, who died in February. "Justice Scalia pretty much single handedly reshaped the way our legal culture thinks about texts, both statutes and the constitution," said Michigan Supreme Court Justice Joan Larsen, also an adjunct professor at Michigan Law. Justice Larsen clerked for Justice Scalia, an experience she drew from to describe his impact upon constitutional law. "He brought the ideas of textualism and originalism to the forefront of judicial thought and consideration," she said.

While each panelist shared their reverence for the Constitution and its continual evolution, they did not refrain from giving the room a cautionary warning. Many of the developments discussed revolve around bigger decisions still in progress that can change in an instant with the results of the presidential election this November.

"I hope that this celebration of Constitution Day might give us a moment to step back and reflect a little. The whole point of law after all, the Constitution included, is to resolve disagreement. I wish for us a present and a future in which we can resolve all of our disagreements a little less disagreeably," said Justice Larsen.

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