Dartmouth Events

Co-sponsored by the Dartmouth Lawyers Association and the Dartmouth Legal Studies Faculty Group

This lecture proposes an alternative to originalism as a normative constitutional theory. That alternative is that we have a general right to liberty, such that all government intrusions on that right require adequate justification. Intrusions range from restrictions on occupational choice to restrictions on expression and individual privacy. The form of the justification takes the overall form of a principle of proportionality. That principle, though at present most clearly articulated in non-U.S. constitutional law, has close connections to well-developed doctrines in the United States. The general right to liberty has even deeper roots, including a long-standing concern among us about the evil effects of oligarchy in public and private forms.

• Constitutional theory in the United States has been dominated by ideas associated with originalism and rule-based doctrine
• Constitutional review elsewhere in the world is dominated by the doctrine of proportionality
• U.S. constitutional theory might benefit from coupling proportionality to a doctrine recognizing a general right to liberty rather than specific enumerated rights

Mark Tushnet

Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School.  He is the co-author of four casebooks, including the most widely used casebook on constitutional law, has written numerous books, including a two-volume work on the life of Justice Thurgood Marshall and, most recently, Advanced Introduction to Comparative Constitutional Law, In the Balance: The Roberts Court and the Future of Constitutional Law, Why the Constitution Matters, and Weak Courts, Strong Rights:  Judicial Review and Social Welfare Rights in Comparative Perspective, and has edited several others. He was President of the Association of American Law Schools in 2003.  In 2002 he was elected a fellow of the American Academy of Arts and Sciences.