Tanmoy Bhattacharyya on American Jurisprudence (Ten Lectures)
Tanmoy Bhattacharyya on American Jurisprudence
Read Lecture 1
The constitutional charter drafted in Philadelphia in 1787, though venerated as an emblem of political ingenuity, rests on an architecture that is far more modest and limited than two centuries of mythmaking might suggest. It is not a comprehensive code of governance but a framework of enumerated powers, a skeletal outline that presumes a wide expanse of residual authority left to the constituent states or to the citizenry itself. The federal legislature, under Article I, is permitted to wield only those powers specifically conferred—powers that acquire practical elasticity through the Necessary and Proper Clause but nevertheless remain conceptually finite. This enumerative scheme is fortified by the later-added Tenth Amendment, a textual reminder that the federal government exists as a creature of limited delegation rather than as a plenary sovereign.
The draft produced in 1787 included almost no explicit guarantees of individual liberty. Many framers believed that enumerating rights would be either redundant or dangerous, implying that whatever freedoms were omitted might be presumed forfeited. But political compromise with Anti-Federalists—who argued that the new national government threatened to eclipse the sovereignty of local communities—yielded the first ten amendments, the Bill of Rights, ratified in 1791. These initial amendments were less a philosophical manifesto than a set of political assurances designed to placate skeptics of centralized power. Even so, they became the cornerstone of later constitutional jurisprudence, supplying courts with language through which to articulate principles of speech, religion, criminal procedure, and personal autonomy.
The Constitution’s architecture is anchored in two structural commitments: the separation of powers among the legislative, executive, and judicial branches, and the diffusion of authority between the national government and the states. The first reflects a deep suspicion of concentrated power, drawing on Montesquieu and British constitutional practice but revising both through a uniquely American lens. The second—federalism—embodies the conviction that political liberty is best protected through institutional competition and the division of sovereignty. Yet these commitments did not by themselves guarantee a role for the judiciary in policing those boundaries. Nowhere does the text explicitly grant courts the authority to invalidate laws that transgress constitutional limits. That power emerged through interpretive assertion rather than textual mandate.
In 1803, Chief Justice John Marshall, writing for a unanimous Court in Marbury v. Madison, announced that it was “emphatically the province and duty of the judicial department to say what the law is.” With this pronouncement, Marshall not only resolved a partisan political dispute but also inscribed into constitutional practice the doctrine of judicial review. That doctrine has persisted unquestioned in its basic legitimacy ever since, even though it remains one of the most consequential exercises of implied constitutional authority in American history. The judiciary thus became both interpreter and guardian of the constitutional text, responsible for mediating the tensions between legislative ambition, executive drive, and constitutional constraint.
Interpretation of the constitutional text has been contested from the earliest moments of the Republic. Competing schools of constitutional hermeneutics have emerged, each claiming legitimacy grounded in democratic principle, historical fidelity, or practical governance. The originalist tradition, dominant among certain jurists and scholars, maintains that the Constitution must be understood according to the meaning its words conveyed at the time of enactment. Some originalists emphasize “original public meaning”—how an informed reader in 1787 or in the relevant amendment era would have understood the text. Earlier variants focused on the subjective intentions of the framers or ratifiers, although this approach became increasingly impracticable as historians revealed the multiplicity of viewpoints among those participants.
By contrast, living constitutionalists argue that a rigid adherence to eighteenth- or nineteenth-century understandings cannot plausibly govern a modern, technologically complex society. For them, the Constitution is not a static archive but an evolving charter of principles that must be adapted to contemporary circumstances. The argument is not that judges should rewrite the Constitution at will, but that its provisions—phrases such as “due process,” “equal protection,” and “cruel and unusual punishment”—invite normative interpretation that necessarily changes as society’s moral commitments develop.
Another interpretive approach, textualism, forgoes extensive historical excavation and focuses instead on the present meaning of the constitutional language, anchored by the assumption that the text’s ordinary usage should control unless ambiguity demands further inquiry. Purposivists, meanwhile, search for the overarching objectives a provision was designed to advance, often relying on structural logic, drafting history, or the functional role the provision plays within the constitutional whole. In practice, the Supreme Court has rarely adhered exclusively to a single method. Its decisions reflect a hybrid interpretive practice in which history, text, purpose, precedent, and pragmatism intersect in varying proportions depending on the case and the predilections of the justices deciding it.
Early landmark decisions played a central role in shaping the contours of federal authority and constitutional meaning. In McCulloch v. Maryland (1819), Marshall asserted the doctrine of implied powers, holding that Congress possesses not only the powers expressly enumerated but also those reasonably adapted to executing them. He also articulated the principle of national supremacy, denying states the authority to impede valid exercises of federal power. In Gibbons v. Ogden (1824), the Court interpreted the Commerce Clause broadly, giving Congress power to regulate not only the movement of goods but the instrumentalities and channels of interstate commerce and activities bearing a substantial relation to it. These decisions established the conceptual foundation for an expansive national government, even though later Courts would oscillate in their willingness to sustain broad assertions of congressional authority.
The Court also clarified the reach of the Bill of Rights in Barron v. Baltimore (1833), holding that the first ten amendments constrained only the federal government and not the states. This interpretation prevailed until after the Civil War, when the Fourteenth Amendment’s Due Process Clause became the vehicle for “selective incorporation,” a process through which most—but not all—of the Bill of Rights protections were gradually applied to the states. Incorporation unfolded incrementally over nearly a century, illustrating how constitutional meaning evolves through judicial accretion rather than immediate transformation.
American constitutional development has been punctuated by recurrent crises, each revealing tensions within the document’s design as well as within the nation’s political life. Slavery and its legacies generated the first great constitutional rupture. The Dred Scott decision of 1857 declared that Black Americans could not be citizens and that Congress lacked power to prohibit slavery in the territories. This opinion—widely regarded as the greatest failure in the Court’s history—helped accelerate the nation toward civil war.
In the late nineteenth and early twentieth centuries, the Court faced the question of how far government could go in regulating economic life. The Lochner era, named after the 1905 decision invalidating a New York maximum-hours law for bakers, reflected a jurisprudence that treated economic liberty as a substantive constitutional right. This approach was largely abandoned after the New Deal, as the Court accepted broader legislative discretion in managing economic affairs.
Racial segregation posed another defining constitutional battleground. The Court’s sanctioning of “separate but equal” in Plessy v. Ferguson (1896) remained the law for nearly six decades until Brown v. Board of Education (1954) repudiated segregation as inherently unequal. Brown not only transformed public education but also reshaped understandings of judicial role, equal protection, and the relationship between constitutional principle and social reality.
The boundaries of executive authority during wartime and national emergencies have also produced constitutional flashpoints. Decisions such as Korematsu, Youngstown, Hamdi, and Boumediene expose the fragility of constitutional constraints when national security concerns collide with assertions of executive prerogative. These cases collectively reveal the difficulty of reconciling energetic executive action with the system’s commitment to checks and balances.
In recent years, controversies surrounding reproductive rights, firearms regulation, and the legitimacy of the administrative state have brought new constitutional confrontations to the forefront. These disputes are shaped by the Court’s changing composition. Following the appointments of Justices Gorsuch, Kavanaugh, and Barrett, the Supreme Court now possesses a six-justice majority committed to originalist or textualist methodologies. This alignment has produced decisions that depart sharply from mid-twentieth-century precedents associated with liberal constitutionalism.
Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade and Planned Parenthood v. Casey, rejecting the long-standing recognition of constitutional protection for abortion rights. New York State Rifle & Pistol Association v. Bruen reconfigured Second Amendment interpretation by requiring historical analogues for firearms regulations, thereby transforming the doctrinal landscape. West Virginia v. EPA curtailed administrative agency authority through a reinvigorated “major questions doctrine,” signaling heightened skepticism toward expansive regulatory power. Kennedy v. Bremerton School District revisited the Establishment Clause doctrine, shifting away from the Lemon test in favor of historical analysis. And Students for Fair Admissions v. Harvard dismantled race-conscious admissions programs, reshaping equal protection jurisprudence in higher education.
Together, these decisions mark a deliberate reorientation of constitutional interpretation, privileging historical meaning and textual fidelity over the pluralistic, pragmatic methods that characterized much of modern constitutional law. The consequences of this shift remain unfolding, but its influence is unmistakable: the Court is consciously reconstructing the doctrinal landscape in ways that will reverberate through every domain of public life.
The Constitution, though seemingly stable, has always been a site of ongoing contestation. Its meaning emerges not solely from the document itself but from the centuries-long dialogue among courts, legislators, executives, scholars, and citizens. It remains a paradoxical instrument: simultaneously rigid and malleable, resistant to amendment yet perpetually reinterpreted, revered as an artifact of founding wisdom yet continually reshaped to address the exigencies of modern society. In this ceaseless interplay between historical inheritance and contemporary application, the Constitution sustains its role as both a framework of governance and a living vocabulary through which Americans debate the nature of political authority, individual liberty, and the evolving contours of constitutional life.
