By Bob Needham
Michigan Law
Professor Daniel Halberstam spent a week this spring sharing perspectives on the state of constitutional rights in the US with an international audience.
Halberstam, the Eric Stein Collegiate Professor of Law, conducted a weeklong masterclass—titled The Construction and De(con)struction of Rights in America: Practice and Anti-Practice from Madison to Trump—at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. The class was followed by a public lecture at the German American Institute.
Under the co-direction of Armin von Bogdandy, the Max Planck Institute hosts a masterclass each summer for a global audience, including professors, doctoral students, postdocs, judges, and practicing lawyers. Halberstam’s class aimed to provide some understanding of recent Supreme Court decisions, such as the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. He noted that US Supreme Court decisions are often closely watched overseas, with the Dobbs decision, for instance, becoming a major item on German TV news.
“Whether in Ann Arbor or elsewhere, I teach constitutional law as a lived practice so that students have a proper foundation for understanding and critiquing, for themselves, what is going on in these recent cases,” Halberstam said. “I try to get away from left-right politics, to focus instead on the craft of our constitutional practice over time.”
In Halberstam’s view, the Dobbs decision and New York State Rifle and Pistol Association Inc. v. Bruen (striking down the state’s firearms restriction) are two of the most problematic recent decisions from the Court. He says both decisions “instrumentalize history in a way that historians bristle at, by seeking to impose precise historical meaning on the Constitution at a granular level and with a purported consensus that usually isn’t there.” He said this approach, moreover, does not reflect the way constitutional cases have traditionally been decided.
In order to understand why this is a problematic approach, Halberstam said, “you have to consider constitutional interpretation and construction by reading lots of cases from the founding era to the present.”
Halberstam also said he teaches that, for the most part, the skill of a lawyer is not to find a single, correct “solution” but to make the best legal argument in a given case or context. That will often mean pushing students to argue both sides of an argument.
“I’m letting them in on a practice, showing them how to argue responsibly about constitutional questions,” he said. “That’s what gives them an understanding for what should be out of bounds.”
The Max Planck Institute for Comparative Public Law and International Law is part of a large network of Max Planck Institutes in Germany that focus on a variety of disciplines and subjects. At this institute, scholars research and advise on various developments in public international law, European Union law, and the constitutional law of individual states.
Halberstam has worked with the institute for years, including serving on its advisory board for a decade. The institute has strong ties to Michigan Law. Jochen Frowein, ‘58, was co-director of the institute for more than 20 years, and one of the two current directors, Anne Peters, is an L. Bates Lea Global Professor of Law.
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