May 2009

On the morning that President Obama nominated Judge Sonia Sotomayor to the Supreme Court, in an article entitled "Liberals Sketch Out Dreams and Limits for Supreme Court," The Wall Street Journal took note of the ideas shaping a new era for the judiciary. Those ideas are outlined in a pair of books authored and edited by a number of ACS Board Members and contributors. The WSJ's Jess Bravin writes: 

Until now, no manifesto has set forth what [a liberal] vision [for law in the 21st century] might be. But in two new books, scholars with ties to the Obama administration suggest how they would move from defending liberal precedents of the mid-20th century to advancing new constitutional approaches.

"For far too long, liberals have been kind of apologetic and on the defensive, and we oughtn't to be," says Pamela Karlan, a Stanford law professor who worked on both books and is sometimes mentioned as a potential Supreme Court nominee.

...

One of the books, "The Constitution in 2020," harkens back to a document from the Reagan-era Justice Department called "The Constitution in the Year 2000," which codified the conservative critique of liberal rulings going back to the New Deal. The other new book is "Keeping Faith With the Constitution."

...

Published by the American Constitution Society, "Keeping Faith" aims to "set out a liberal and progressive way of understanding how the Constitution has been interpreted and how it ought to be interpreted," [co-author Pamela] Karlan says.

As "Keeping Faith" tells it, the Supreme Court's most significant decisions were made by focusing less on the way constitutional provisions originally were enforced but on their impact on contemporary generations. Referring to the court's 1942 decision striking down an Oklahoma law authorizing forced sterilization of "habitual" criminals, "not a single justice...asked whether forced sterilization would have been permitted in 1868 when the 14th Amendment was adopted," the authors write.

Keeping Faith with the Constitution was released this month by ACS at a National Press Club panel discussion moderated by Slate's Dahlia Lithwick and including expert analysis from two of the volume's co-authors Profs. Karlan and Goodwin Liu  as well as Charles J. Cooper, a former assistant attorney general in the Reagan administration and Pamela Harris, co-editor of a companion volume called It Is a Constitution We Are Expounding: Collected Writings on Interpreting Our Founding Document. Highlights from that discussion are in the video to the left.