2015 Constitution Day Symposium

  • September 18, 2015
    Guest Post

    by Steve Sanders, who teaches and writes about constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law, Bloomington.

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    Advocates for civil rights and civil liberties often look to our Constitution in their quest for legal and social change.  But the processes of legal and social change also shape the contours, sometimes the very meaning, of constitutional guarantees.  Last summer in Obergefell v. Hodges, the Supreme Court applied the Fourteenth Amendment to transform the nationwide legal status of same-sex marriage.  But it is important to appreciate how same-sex marriage had already changed the Constitution.  

    On matters of individual liberty and equality, the Constitution is not a catalog of enumerated, narrow, and static rights, though most legal conservatives insist that we treat it that way.  Rather, it provides a set of bedrock values, values whose meanings grow and adapt alongside the growth of knowledge and human understanding. 

    As Chief Justice John Marshall wrote in McCulloch v. Maryland, a constitution is “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”  Justice William Brennan, one of the greatest champions of a progressive Constitution, observed,  “Our amended Constitution is the lodestar for our aspirations.  Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked.  Its majestic generalities and ennobling pronouncements are both luminous and obscure.”

    And as Justice Anthony Kennedy wrote in a decision invalidating laws that criminalized same-sex sex acts, “Had those who drew and ratified the [Constitution] known the components of liberty in its manifold possibilities, they might have been more specific.  They did not presume to have this insight….  As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

    In that 2003 decision, Lawrence v. Texas, the Court considered the last half-century of legal and social change, both in the United States and in other democracies, and found an “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

  • September 18, 2015
    Guest Post

    by Michael Waterstone, J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles 

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.

    I believe the disability rights movement has more to offer constitutional law, and constitutional law has more to offer the disability rights movement. This is the case for at least several reasons.

    First, even assuming that the ADA is a more effective tool to combat the discrimination most people with disabilities face in their daily lives, its vitality is under constitutional attack. Cases like Garrett and Lane challenge Congress’s ability to legislate on behalf of people with disabilities under its Section 5 of the Fourteenth Amendment powers, and these attacks will continue. With equal protection law, if you are not playing offense, you are not playing adequate defense either.

  • September 18, 2015
    Guest Post

    by Anthony Johnstone, Associate Professor, Alexander Blewett III School of Law at the University of Montana

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    According Article IV, section 4 of the Constitution, “The United States shall guarantee to every State in this Union a Republican Form of Government.” Note the use of the indefinite article: a Republican Form of Government. In James Madison’s words this originally meant “a Government in which the scheme of representation takes place,” and the people rule instead of a monarch or aristocracy. As the rest of the section’s discussion of “Invasion” and “domestic Violence” suggests, the point of the guarantee was to protect the Union and sister states against the danger posed by a state controlled by the few rather than the many. Beyond this principle of self-preservation, and subject to Congress’s power to regulate federal elections under the Elections Clause, the original Constitution left democracy in the states alone.

    Over the past 228 years since the original Constitution was first proposed, the people mobilized the states to bolster the guarantee through constitutional amendments. The First Amendment confirmed “the principle that debate on public issues should be uninhibited, robust, and wide-open.” The Fourteenth Amendment established equal citizenship for all, eventually realized in the ideal of “one person, one vote.” The Seventeenth Amendment gave the people of the states a direct voice in the Senate, while the Twenty-Third Amendment gave the people of the District of Columbia a voice in the election of the President. The historic Voting Rights Amendments prohibited the denial or abridgment of the right to vote on account of racesexwealth or age.

  • September 17, 2015
    Guest Post

    by Atiba R. Ellis, Professor of Law, West Virginia University College of Law; Follow Prof. Ellis on Twitter @atibaellis

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    On this Constitution Day, I have been drawn to thinking about violence against minorities in America and how our constitutional system fails to address this violence. We have seen numerous episodes of individual and community violence against neighborhoods of color from Ferguson to Baltimore. We are familiar with the long list of individuals who have died at the hands of the police under questionable grounds.  (I discussed both here previously.) This violence is so engrained and pervasive that it is systemic. In the words of a famous scene from Monty Python and the Holy Grail, it is “violence inherent in the system.” 

    Yet this physical violence is but one manifestation of the long history of subordination of communities of color. This violence of white supremacy is also made manifest in the expressive violence of exclusion from the political process, as it dilutes and diminishes both minority individual and community political strength. And our constitutional mechanisms are not fully addressing it.

    Communities of color have been victims of this violence -- whether state-imposed or state-abetted -- for generations. This violence has taken various forms: slavery, Jim Crow, police brutality, and mass incarceration. That violence attacked their bodies, their property, and their status as members of the American democratic community.

    The ways that our constitutional system allows violence against vulnerable minorities represents an existential attack against minority communities and a continuation of the patterns of white supremacy (even if the intent of racial discrimination is absent).  This isn’t to say that the crises linked to the policing of minority communities, including police brutality and killings; racial profiling; mass incarceration; and racial disparities in the death penalty shouldn’t be thought of as less important—they are important and pervasive.  Yet these species of state-sanctioned violence are connected to the political exclusion that minorities suffer, and they are better seen as parts of a whole.

  • September 17, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    In some of the most famous words ever written by the Supreme Court, Chief Justice John Marshall declared in McCulloch v. Maryland in 1819, we must “never forget that it is a constitution we are expounding. . . .  [A] constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” This is a clear expression of the need for a living Constitution, one whose meaning evolves by interpretation as well as by the very difficult process of amendment.

    This should not be controversial. The only way that the nation can be governed by a document written in 1787 for an agrarian slave society is for its intentionally broad, open-textured language to be given contemporary meanings. There is no clear “original understanding” of any constitutional provision and even if it could be identified, it should not be controlling today. The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. But that does not mean that Brown v. Board of Education was wrongly decided.

    This would be unremarkable except that Justice Scalia and other conservatives have argued for decades that the meaning of the Constitution is limited to its original understanding. This philosophy, “originalism,” says that a constitutional provision means the same thing today as when it was adopted and that this meaning can be changed only by constitutional amendment.

    Never has a majority of the Court embraced this restrictive approach. One of the most important aspects of the Court’s decision in June recognizing a constitutional right to marriage equality for gays and lesbians was it again explicitly rejected originalism.

    In Obergefell v. Hodges, the Court declared unconstitutional laws in Kentucky, Michigan, Ohio and Tennessee that prohibited same-sex marriage. Obviously, no one contends that the drafters of the Fourteenth Amendment meant to include a right to marriage equality for gays and lesbians within its protections of due process and equal protection. The majority of the Court was clear that this does not matter because the understanding of constitutional provisions evolves over time.

    Justice Kennedy, writing for the majority, observed that “[t]he identification and protection of fundamental rights . . . has not been reduced to any formula.” He explained why constitutional interpretation cannot be limited to understandings of the past: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.  If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.”