Discrimination, Violence, and the Constitution

Crosspost from Balkinization

The essays in The Constitution in 2020 ask not only what the Constitution can do for us, but what we can do for the Constitution. In other words, the book offers both visions of what constitutional law should be and concrete suggestions for how to make it so. Optimism—pragmatic, cautious, yet still resolute—characterizes discussions of equal protection, social and economic rights, free speech, and religious liberty. The book says very little, however, about the most litigated provisions of the Bill of Rights, the provisions to which individuals facing an exercise of state power most often appeal. I refer to constitutional criminal procedure, and I wonder: Is the criminal justice system no place for constitutional optimism? Is criminal justice a realm where we can do little with the Constitution, and where it can do little for us?