Several of the nation’s top constitutional experts engaged in a robust discussion on what the U.S. Constitution means and how to interpret it, during the opening plenary discussion at the American Constitution Society’s Tenth Anniversary National Convention.
ACS Board Chair Geoffrey R. Stone, a law professor at the University of Chicago, kicked off the discussion by offering a new way of framing constitutional interpretation, as articulated in a recent article in Democracy: A Journal of Ideas he coauthored with University of North Carolina law professor William Marshall, entitled “The Framers’ Constitution.”
In the article, Stone and Marshall lay out their vision for interpreting the Constitution as the Framers intended, recognizing that the Framers were “visionaries” and not “timid men” who would have viewed originalists’ vision that “any particular moment’s understanding of the meaning of the Constitution’s open-ended provisions should be locked into place” as wrongheaded.
“As men of the Enlightenment, [the Framers] believed that just as reason, observation and experience would enable us to gain greater understanding over time into questions of biology, physics, economics and human nature, so, too, would they enable us to learn more over time about the content and meaning of the broad principles they had enshrined in our Constitution,” Stone explained in his remarks.
Citing Thomas Jefferson, James Madison and Alexander Hamilton, Stone demonstrated why judges should exercise judicial restraint and defer to the political decision-making, except where there is “reason to believe that the [political] process itself may have been tainted,” such as when governing majorities disadvantage historically vulnerable minority groups, or where they use their authority to stifle critics.
U.S. Court of Appeals for the Fourth Circuit Judge J. Harvie Wilkinson III responded by calling for more judicial restraint in what he called a time of unprecedented activism by judges across the board. He criticized in particular Roe v. Wade and Heller v. McDonald as “dueling versions of activism.”
“Rather than promoting a robust role for the courts, maybe it’s time for a more liberal version of restraint, because things are happening that some of you are not comfortable with,” Wilkinson said. “… None of this involves relinquishing a commitment to choice or to same-sex marriage, it simply involves an openness to achieving aims through the political process.”
Stanford law professor Pamela Karlan focused her remarks on the power that the political process and the public conversation have on our understanding of the Constitution, perhaps more than decisions by particular judges.
She said the two constitutional moments that meant the most to her over the past year were not the ones people might expect. The first was Congressman John Lewis’s reading the 13th Amendment before Congress at the beginning of the term.
“I think of John Lewis as one of the framers of the 13th Amendment as we understand it, and one of the framers of the 14th amendment as we understand it,” she said. “If we ask … what is the most important thing that has brought racial justice to America today? It was not the Supreme Court’s decision standing alone. It was the Second Reconstruction Congress and the ways in which it legislated. That is, the ways in which the people and Congress felt the Constitution in some sense permitted, but in other senses compelled them to bring real equality. ”
The second important moment, she said, was when the Obama administration announced that it would no longer defend the Defense of Marriage Act because it was unconstitutional, getting out in front of the courts on this issue and affecting the conversation.
“I think a lot of what we have to be asking ourselves is how do we change constitutional interpretation by legislators and by executive branch officials and not to spend most of our time worrying about judicial review itself,” she said.
U.S. Court of Appeals for the Seventh Circuit Judge Diane Wood described her understanding of the Constitution as a dynamic document, in which the Framers were clear about where they intended to empower the federal government, where they meant to limit the government, and which phrases were intended to specific or broad.
“They knew how to be specific when they wanted to do that. They knew how to be broad when they wanted to do that,” she said. “Let’s just follow them.”
Yale Law Professor Akhil Reed Amar issued an impassioned plea for people to read the Constitution and educate themselves about its history.
“This document, you see, this is what we stand on. This is power. You need to read it. Then you need to reread it and reread it,” he said, holding up a copy of the Constitution.
“It really does say equal. It really does say the freedom of speech. It really does say birthright citizenship,” he said. “And this document is not the Framers’ Constitution. The Framers’ Constitution failed. Enough with James Madison. He died a slaveholder. He never freed his slaves. This is an intergenerational document. It’s not a parchment under glass a few blocks from here.”