Constitutional Interpretation and Change

  • September 25, 2014
    BookTalk
    The Case Against the Supreme Court
    By: 
    Erwin Chemerinsky

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

    How should we assess the Supreme Court’s performance over the course of American history? That is the central question of my new book, The Case Against the Supreme Court. My conclusion is that the Supreme Court often has failed at its most important tasks and at the most important times. Recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future.

    Obviously the evaluation of any institution requires criteria by which it can be assessed.   In the introductory chapter, I posit that the Court exists, above all, to enforce the Constitution. The Constitution exists to limit what government and thus the democratic process can do. As Marbury v. Madison said long ago, the limits contained in the Constitution are meaningless unless enforced and that is the “province and duty” of the courts. The judiciary is particularly important in protecting the rights of minorities (of all sorts) who cannot rely on, and should not have to rely on, the democratic majority. Also, the courts need to play a special role in times of crisis to ensure that society’s short-term passions do not cause it to lose sight of its long-term values.

    I believe that all, liberal and conservative, can agree that these are fair criteria by which to assess the Supreme Court. I also think that liberals and conservatives can agree that the Court very often has failed. Part I of the book looks at the Court historically. Chapter one looks at the Court’s dismal record over the course of American history with regard to race. For the first 78 years of American history, from 1787 until 1865, the Court aggressively protected the rights of slave owners and upheld the institution of slavery.  For 58 years, from 1896 until 1954, the Court approved and enforced the doctrine of “separate but equal.” The Court’s failure with regard to race continues to this day, as evidenced by the decision in Shelby County, Alabama v. Holder, which declared unconstitutional a key provision of the Voting Rights Act of 1965. This is the first time since the 19th century that the Court has invalidated a federal civil rights law to protect racial minorities.

  • September 19, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law, @atibaellis. This post is part of our 2014 Constitution Day symposium.

    On September 17, 1787, the framers signed the U.S. Constitution. The document they approved 227 years ago is a work of genius as it provided a democratic republic that has endured economic turmoil, mass insurrection, and disasters of various sorts -- forces that have toppled other democracies.  The U.S. Constitution, the oldest enduring written constitution in the world today, has endured and preserved democracy based upon rule of law.

    Although one might point to the advantages and disadvantages of federalism, the dynamics of enumerated powers, or the political compromises that undergird separation of powers as powerful tactics the Constitution deploys, it is not in any of these mechanisms where the genius of the Constitution lies. Its true genius is its mechanism to allow we the people to reinvent our democracy as our times and ethics demand. It is this power of reinvention that has allowed our constitution to endure and matter to the world. 

    This power of democratic transition is best illustrated in the way our Constitution has been reinvented, over time, from a document that enshrined inequality to one that strives for equality. The Constitution of 1787 reflected and implemented a social theory we would not recognize or sanction today. The Constitution endorsed states’ rights (though this name would not be invented until a century later to protect slavery) and left it to the states to structure the social relations of the nation. Thus, despite a Bill of Rights that protected the rights of citizens, the Constitution allowed the chattel slavery of Africans to endure in the United States when it was being abolished in other parts of the world. The Constitution allowed women to be treated as property. Despite our hymns to constitutional genius, the lived experience of the eighteenth and nineteenth centuries was rooted in inequality.

    To focus merely on the genius of the original document (and as a consequence, elevate those times and those founders) is to fixate on an originalism that suffered subordination and endorsed a hierarchy. And, as our experience with the Civil War illustrates, the country came within a hair’s breath of being dismantled by faction and racism due to an unwillingness to recreate the United States.

    Yet our Constitution endures because it has embedded within it mechanisms by which our evolving notions of equality and justice may receive constitutional protection from the tyranny of caste and status. Though volumes have been written on this topic, it is worth remembering in our celebration of the Constitution that the amendment process and the wisdom of legislators and judges who sought to make manifest the idea of equality helped to preserve the Union at its most imperiled points. One needs only recount the work of Reconstruction, the long march from segregation to Civil Rights, the movement towards women’s equality, and our modern day same-sex marriage cases to see how the long arc of equality has progressed. And all of these changes have been enabled through an American constitutionalism that, in the words of Harper v. Virginia, is not shackled to the political theory of a particular era.

  • September 18, 2014
    Guest Post

    by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

    In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

    In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

    Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

    Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.

  • September 17, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law. This post is part of our 2014 Constitution Day symposium.

    Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths.  There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches,  excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race.  The examples go on and on.

    In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.

    Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that.  Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.

    For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).

    Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by “we the people of the United States” for “ourselves and our posterity.” The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to “free white persons”). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers’ posterity trod the earth. 

  • September 17, 2014
    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 our 2014 Constitution Day symposium.

    Constitution Day, Wednesday, September 17, is a national day to celebrate the Constitution, but it also should be an occasion for critically appraising it and the government that it created. On September 17, 1787, the drafters of the Constitution signed the document and it was then submitted to the states for ratification. There is much to celebrate about the Constitution.  

    For 227 years, there has been democratic rule. The Constitution is a document that had enough certainty to create a working government and enough flexibility that although written for an agrarian slave society, it still can be used for the technological world of the early 21st century. It is a document that both creates power and provides checks on that authority. It protects basic values like separation of powers and freedom and liberty and due process of law.

    Yet any celebration of the Constitution needs to be tempered by recognition of its failures too. For the first 78 years of its existence, the Constitution explicitly protected the rights of slave owners. For 58 years, it was interpreted to approve Jim Crow laws that segregated every aspect of Southern life. The results are the enormous racial inequalities that exist today. According to the 2010 census, 27.22 percent of African-Americans live below the poverty level, compared with only 9.7 percent of whites. Thirty-five percent of all African-American children are in families below the poverty line.

    In a book to be published by Viking this month, The Case Against the Supreme Court, I argue that the Supreme Court deserves a good deal of the blame for the failure to deal with racial inequality throughout American history and today. In fact, my thesis is that the Supreme Court has largely failed throughout American history, especially at its most important tasks and at the most important times.

    The Supreme Court exists, above all, to enforce the Constitution against the will of the majority. The Court plays an especially important role in safeguarding the rights minorities of all types who should not have to rely on democratic majorities for protection. The Court also should be crucial in times of crisis in ensuring that the passions of the moment do not cause basic values to be compromised or lost.

    But the Court has had a dismal record of protecting minorities and has continually failed to stand up to majoritarian pressures in times of crisis. During World War I, individuals were imprisoned for speech that criticized the draft and the war without the slightest evidence that it had any adverse effect on military recruitment or the war effort. During World War II, 110,000 Japanese-Americans were uprooted from their life long homes and placed in what President Franklin Roosevelt referred to as concentration camps. During the McCarthy era, people were imprisoned simply for teaching works by Marx and Engels and Lenin. In all of these instances, the Court erred badly and failed to enforce the Constitution.