October 2009

Earlier this year ACS published Keeping Faith by Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder, which articulates a vision of the Constitution and an approach to interpretation that is faithful to the words of the document and at the same time has enabled it to retain its relevance for each new generation. The authors explain "constitutional fidelity," a principle that "serves not only to preserve the Constitution's meaning over time, but also to maintain its authority and legitimacy. The words and principles of the Constitution endure as our fundamental law because they have been made relevant to the conditions and challenges of each generation through an ongoing process of interpretation."

In chapter 3 of the book, "Equality," the authors conclude that originalism is incompatible, for instance, with the landmark Supreme Court ruling, Brown v. Board of Education, which invalidated segregated public schools. The authors wrote:

Why, then, has the correctness of Brown been the subject of so much handwringing in some legal circles? The short answer is that Brown is a difficult case under interpretive theories that disavow the relevance of contemporary social understandings to the application of the Constitution's general principles. To justify Brown, originalism must posit that the federal and state legislators who ratified the Fourteenth Amendment understood it to abolish segregated schools. Given the widespread practice of school segregation in the states and the paucity of evidence that the enacting Congress believed the Amendment would radically transform public schooling, it is no wonder that the unanimous Court in Brown found the original intent "[a]t best . . . inconclusive." Indeed, for over half a century, a scholarly consensus across the ideological spectrum has recognized that Brown cannot be explained on originalist grounds. Even the most ambitious and labored effort to reconcile Brown with originalism comes up short for reasons lucidly elaborated by one of the nation's leading civil rights historians.

For more Keeping Faith, see here. 

While the U.S. military's discrimination against openly LGBT soldiers has drawn fire and promises of change, the ban on Sikh soldiers has gone virtually unnoticed. And despite a recently announced waiver for one Sikh doctor, military policy continues to bar the unshorn hair and turban traditionally expected of Sikh men.

The Sikh Coalition, an organization started to fight discrimination in the wake of 9/11, has the facts:

Two Sikh men, Captain Kamaljeet Singh Kalsi, a doctor, and Captain Tejdeep Singh Rattan, a dentist, were recruited to join the Army's Health Professions Scholarship Program several years ago. Both maintained their turbans throughout the four year program, and appeared in uniform during specialized Army training, at Army ceremonies, and while working in military medical facilities.

Nevertheless, after completing the program, they were told that they must remove their turbans and cut their unshorn hair and beards for active duty. Rather than abandon their Sikhi, they chose to appeal to Army leadership to end its policy of Sikh exclusion from service. Today, the Army decided to accommodate Captain Kalsi and defer a decision on Captain Rattan's appeal until he completes his dental certification.