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Sie befinden sich hier: Forschen am Institut Gesprächs- und Arbeitsformate Max Planck Master Class Daniel Halberstam

Daniel Halberstam

The Construction and De(con)struction of Rights in America: Practice and Anti-Practice from Madison to Trump

The Masterclass with Professor Daniel Halberstam took place on 24 - 27 April 2023 at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany.


This Masterclass provides a critical examination of U.S. constitutional rights jurisprudence from the first Founding to the present. Our texts consist largely of landmark decisions of the U.S. Supreme Court. They are selected not for comprehensive coverage, but to provide you with the basis for an informed understanding and critical analysis of U.S. constitutional theory and practice. As we read these cases together with care, our discussions will explore the competing theories of constitutional authority, interpretation, construction, and application that are implicitly or explicitly invoked in the decisions. Federalism will be a recurring theme as well.

Note: Our class will be conducted using the Socratic method and therefore relies on the intense preparation and engagement of all participants; our sessions are not “lectures”. And while we exclusively read U.S. materials, and the focus of the class is on the United States, comparative analysis with other legal systems may inform our conversations along the way.

Session 1: Constitutional Principles (from the first Founding to Reconstruction)

Our first session considers early foundational decisions on general questions of constitutional adjudication, federalism, and rights. We begin with the first Founding and end with the second Founding and Reconstruction of the American Republic after the Civil War.

Session 2: Canon and Anti-Canon (from Reconstruction to the Warren Court)

Our second session considers guiding decisions – both negative and positive – of U.S. constitutional rights jurisprudence. There is, today, almost universal agreement that any proper theory or practice of constitutional adjudication must be both compatible with some of these decisions and incompatible with others. We will examine decisions on race and economic regulation, including Chief Justice Earl Warren’s signature achievement of Brown v. Board of Education (1954), and how these decisions inform U.S. theories of constitutionalism and adjudication.

Session 3: The Modern Construction of Rights (from the Warren Court to the Kennedy Court)

Our third session turns to rights jurisprudence as it emerged from the Warren Court, became limited by conservative opposition to that Court, and nevertheless made occasional progressive advances by swing justices, most important, Justice Kennedy. We will examine decisions on privacy, politics, equality, and dignity, and their underlying eclectic theories.

Session 4:  Abortion, Guns, Politics . . . (the Roberts Court and beyond)

Our final session investigates the shift from the Roberts Court to the post-Roberts Court, in which a certain brand of rights adjudication invokes history to endorse previously unrecognized rights, abolish previously established rights, and retreat from policing the guardrails of politics.

Daniel Halberstam is the Eric Stein Collegiate Professor of Law and Director of the European Legal Studies Program at the University of Michigan Law School. He also served for a decade as professor at the College of Europe, Bruges and is a member of the Helsinki Rule of Law Forum. He is an internationally recognized expert on constitutional law and federalism, was a law clerk at the U.S. Supreme Court, a member of the legal team in the Brexit litigation in the UK Supreme Court, and serves on the academic steering committee of the Luxembourg Forum, which brings together the justices of the U.S. Supreme Court and the Court of Justice of the European Union for joint meetings.