Constitution

Ellis, who won a Pulitzer for his book Founding Fathers, writes in a piece for The Washington Post that during the forthcoming confirmation hearings for a new justice to fill the seat of Justice John Paul Stevens, the major weapon used against the nominee will likely be the "claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what the hostile Senate interrogator defines those intentions to be."

Ellis continues:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the ‘miracle at Philadelphia' was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court - Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito - claim to believe it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

For other methods of constitutional interpretation, see the book Keeping Faith with the Constitution, which was published last spring by ACS.

Adam Liptak revisits a recent discussion between Supreme Court Justices Stephen Breyer and Antonin Scalia, which included debate over methods of interpreting the Constitution. During an event at the University of Arizona, Scalia defended "originalism" as the proper way to interpret the Constitution and Breyer countered that the Constitution would likely prove useless in today's society if it were so rigidly interpreted. Liptak maintained in his article that the two "know how to get under each other's skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm." (C-SPAN has video of the debate here.)

But what really irks Scalia and other supporters of his brand of originalism, is, Liptak reports, discussion of Brown v. Board of Education, the high court decision that concluded that school segregation violated the 14th Amendment. Brown, Liptak writes, is "hard to square with Justice Scalia's commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text." 

Liptak continued:

Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.

Yet Brown is widely thought to be a moral triumph. A theory of constitutional interpretation that cannot account for Brown is suspect if not discredited.

As Liptak reported, not too long into their discussion at the University of Arizona, Breyer prodded Scalia to square originalism with the outcome of Brown.

"Where would you be with school desegregation?" Breyer asked Scalia.

But Scalia, Liptak reports, failed to provide a direct answer and instead turned his attention to the earlier high court decision in Plessy v. Ferguson, saying he would have sided with the dissent in that case. The majority in Plessy ruled that legalized segregation did not violate the Constitution.

Breyer maintains, as he did during the Arizona debate, that the words of the Constitution, if they are to have relevance today, cannot be interpreted in the framework of the 18th century. In a 2007 dissent in Parents Involved v. Seattle School District 1, Justice Breyer wrote:

For much of this Nation's history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode separate buses, and studied in separate schools. In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality - not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

In their book, Keeping Faith with the Constitution, published by ACS earlier this year, authors Goodwin Liu, Pamela Karlan and Christopher Schroeder write in Chapter Three:

The unanimous Brown opinion authored by Chief Justice Earl Warren provides a rich account of constitutional interpretation and the meaning of equality as a constitutional value. What stands out in the Court's reading of the Fourteenth Amendment is its explicit rejection of originalism in favor of an interpretative approach sensitive to historical change and social context. Through Brown, we come to understand the constitutional equality not as an abstract formula or a narrow idea limited to by history, but as a moral principle that guides our public values and responds to the lived reality of contemporary social practices.

See more from Keeping Faith here.