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17 U. Pa. J. Const. L. Online 1 (2014-2015)

handle is hein.journals/jclon17 and id is 1 raw text is: UNIVERSITIES AS CONSTITUTIONAL LAW MAKERS (AND OTHER HIDDEN ACTORS IN OUR CONSTITUTIONAL ORDERS) Adamj MacLeod* In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legisla- tures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitu- tional disputes the Court looks either to the text of the written Con- stitution or to a Living Constitution, which looks something like the textual Constitution plus Justice Kennedy's morning prandial con- sumption. These stories are so familiar to us that we know the case names from memory-on the side of individual rights, Dred Scott v. Sandford,' Brown v. Board of Education,2 Miranda v. Arizona,3 Roe v. Wade,4 Law- rence v. Texas, and those concerning (limits on) the powers of gov- ernment to promote the public good, McCulloch v. Maryland,6 Lochner v. New York,7 Wickard v. Fillburn, United States v. Morrison,9 National Fed- * Associate Professor, Faulkner University, Thomas Goode Jones School of Law. This essay is adapted from a Constitution Week lecture delivered on September 20, 2013 at Union University titled, Union University: Constitutional Law Maker, which was sponsored by the Center for Politics & Religion. I am grateful to Micah Watson, Sean Evans, and the audi- ence members at that lecture who asked good questions and made helpful comments, and to Ryan Anderson who commented upon a draft. 1 60 U.S. (19 How.) 393 (1857). 2 347 U.S. 483 (1954). 3 384 U.S. 436 (1966). 4 410 U.S. 113 (1973). 5 559 U.S. 558 (2003). 6 17 U.S. (4 Wheat.) 316 (1819). 7 198 U.S. 45 (1905). 8 317 U.S. 111 (1942). 9 529 U.S. 598 (2000). 1

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