The Practice of American Constitutional Law

H. Jefferson Powell is a professor of law at Duke University. He is the former Principal Deputy Solicitor General and a former deputy assistant attorney general in the US Department of Justice. His books include A Community Built on Words: The Constitution in History and Politics (2003), Constitutional Conscience: The Moral Dimension of Judicial Decision (2008), The President as Commander in Chief: An Essay in Constitutional Vision (2013), and Targeting Americans: The Constitutionality of the U.S. Drone War (2016).

Americans often think about constitutional law in terms of high-profile decisions by the Supreme Court ¿ decisions that divide the justices by ideology, not law. This focus often leads to the erroneous conclusion that constitutional law arguments are, and can only be, political in substance. In The Practice of American Constitutional Law, H. Jefferson Powell demonstrates that there is a longstanding, shared practice of constructing and evaluating constitutional law claims that transcends current political disagreements. Powell describes how lawyers and judges identify constitutional problems by using a specifiable method of inquiry that enables them to agree on what the questions are, and thus what any plausible answer must address, even when disagreement over the most persuasive answers remains. Rather than being simply politics by other means, constitutional law is the successful practice of giving substance to the Constitution as supreme law.

Introduction: What is the constitution?; 1. Constitutional lawyers as problem solvers; 2. Identifying the problem: the twofold logic of constitutional law; 3. Solving constitutional problems: the basic toolkit; 4. Solving constitutional problems: the importance of institutional perspective; 5. Solving constitutional problems: specific clauses in the written constitution; 6. Identifying the solution: persuasiveness in constitutional law; Conclusion: constitutional law as problem solving; Appendix.