Among the issues Alito tackled in Current Issues in Constitutional Interpretation were those relating to the Second Amendment right to keep and bear arms, the Sixth Amendment rights to counsel and trial by jury, the Eighth Amendment right to be free of cruel and unusual punishment, and the right to petition for a writ of of habeas corpus. He used recent landmark cases, such as District of Columbia v. Heller and Kennedy v. Louisiana, among others,as vehicles for considering broader questions of constitutional interpretation and Supreme Court practice.
“I thought back over the cases that the Court has heard during my time on the Court, and I tried to identify some cases that would be interesting in themselves and involve interesting substantive issues, as well as some broader questions like stare decisis and how you go about interpreting the Constitution when there is not a great body of precedent on the question,” Alito said.
In addition to reading majority and dissenting opinions, the class read some of Alito’s colleagues’ writings on constitutional interpretation; assigned readings included excerpts from A Matter of Interpretation – Federal Courts and the Law, by Associate Justice Antonin Scalia, and Active Liberty – Interpreting Our Democratic Constitution, by Associate Justice Stephen Breyer.
Offering “extremely well-argued” and very different theories, the works also represent the only general explanations of constitutional interpretation authored by current members of the Court other than opinions, observed Alito. “I think they provide a good contrast and jumping-off point for discussion about how you should go about interpreting the Constitution and statutes,” he said. “I don’t try to convince students to view any of these issues in any particular way."