Constitutional Interpretation and Change

  • September 26, 2016
    Guest Post

    by Jeff Mandell, Senior Associate at Stafford Rosenbaum LLP in Madison, Wisconsin. Jeff is also the Chair of the newly formed ACS Madison Lawyer Chapter.

    Spend two days attending a participant-led conference about the ideas that should shape the future. That tempting invitation led me, a litigator in Madison, Wisconsin, to Washington, D.C. last week for Vox Conversations. The editorial team at Vox.com convened 150 invitees and asked us to raise and examine questions about how things could be different. It was just that open-ended and vague—how could things be different? Vox.com editor-in-chief Ezra Klein urged conference-goers to pursue and explore big ideas, without letting “the strictures of this political moment” constrain our discussions. My hope, as I tweeted out ahead of the conference, was that Vox Conversations would provide insightful discussions of policy—and maybe a little law. But Vox Conversations, like last summer’s ACS National Convention, reminded me that law and policy are rarely discrete spheres of inquiry but, ideally, intertwine with and inform one another.

    The conference discussions were all over the map and covered a tremendous swath of intellectual territory. There were conversations about the prospect of increased government surveillance and about beneficial government uses of big data. I hosted a conversation about how the proliferation of guns is changing our society and I participated in a fascinating discussion on whether America suffers from too much democracy. Much of the conference was strictly off-the-record (admittedly an interesting choice for a conference convened by a media company), with a stated goal of allowing greater space for participants to think out loud, to express incompletely theorized ideas and to change their minds in the midst of robust give-and-take.

    Among the on-the-record portions, I was particularly struck by Vox.com’s Matt Yglesias expanding upon his prediction that increasing ideological rigidity in our political parties will lead to persistent gridlock and, in turn, to a collapse of American constitutional democracy. Yglesias posits that our system of checks and balances, carefully calibrated for the world as the Framers understood it, is ill-equipped to handle our contemporary politics. Yglesias’ theory has a certain logical appeal, but I remain unconvinced, even after questioning the idea at the conference and continuing to turn it over in my mind for several days since.

  • September 19, 2016
    Guest Post

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

    *This post is part of the ACSblog symposium: Constitution Day 2016

    After the country observed Constitution Day this past weekend, there remains the simple reality that the outcome of the November presidential election almost surely will determine the meaning of the Constitution for decades to come. Since 1971, when Richard Nixon’s third and fourth justices for the Supreme Court were confirmed, until Justice Antonin Scalia died on Feb. 13, there always have been five and sometimes as many as eight justices appointed by Republican presidents. Now there are four justices appointed by Republican presidents (Roberts, Kennedy, Thomas and Alito) and four justices appointed by Democratic presidents (Ginsburg, Breyer, Sotomayor and Kagan). Who replaces Justice Scalia will tip the ideological balance on the Supreme Court in countless areas – such as campaign finance, gun control and separation of church and state – where he has been in the majority in 5-4 decisions.

    But it is not only Justice Scalia’s seat that is at stake. Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. There are now three justices – Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer -- who are 78 or older. Especially if the next president serves two terms, he or she will have several picks for the Supreme Court. This will determine the ideological composition of the Court, likely for decades.

    Picking Supreme Court justices is one of the most long lasting legacies of any presidency. William Rehnquist was nominated for the Supreme Court by President Richard Nixon in 1971 and served until his death in 2005. John Paul Stevens was nominated by President Gerald Ford in 1975 and served until he retired, at age 90, in 2010. Clarence Thomas was 43 when he was confirmed in 1991 and if he remains until he is 90, he will be a justice for 47 years until the year 2038.

    If a right-leaning president replaces Justice Scalia and say Justices Ginsburg and Breyer, these justices, together with Chief Justice Roberts and Justices Thomas and Alito – all of whom are in their 60s – will be a conservative majority for years to come. But if a left leaning president fills these vacancies, the new justices, along with Justices Sotomayor and Kagan will be a progressive majority for a long time.

  • September 16, 2016
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This post is part of the ACSblog symposium: Constitution Day 2016

    Happy Constitutions Day!

    No, that is not a typo. I know that tomorrow, September 17, is officially “Constitution Day,” marking the date in 1787 when the Constitution was submitted to the states for ratification. And I know there is only one document called the Constitution of the United States, not multiple different ones. Yet given how much the Constitution has changed, how different our perceptions of its requirements and the many other constitutions in American lives, perhaps we should nonetheless refer to it as “Constitutions Day.”

    Of course the original version of the Constitution is of vital importance to American history, culture and law. We must remember, however, that the states found that document wanting because it lacked a clear specification of individual rights. Several states conditioned their ratification of the Constitution on the adoption of significant amendments. Their objections to the Constitution led to the addition of the Bill of Rights in 1791. Four years after the first Constitution was proposed, we end up with a new one, revised and improved.

    Since then, we have added another 17 amendments to the Constitution. Some, like the Reconstruction Amendments (13th, 14th, & 15th) are of tremendous significance, radically reshaping the Constitution once again. The effect on American life and government from these amendments, which overhauled the relationship between the federal government and the states, was profound. Other amendments, like the 27th, which deals with congressional salaries, are relatively minor. Yet all of them have one thing in common: they each created a new Constitution. The Constitution today is different than the Constitution Americans lived with 50 years ago, which is different from the one 50 years before that.

  • September 14, 2016

    By Kevin Battersby Witenoff

    Lawyers representing Detroit schoolchildren filed a lawsuit Tuesday against Gov. Rick Snyder and state officials in what they are calling the country's first federal case that pushes for literacy as a right under the U.S. Constitution, reports Ann Zaniewski of the Detroit Free Press.

    As Constitution Day approaches, Elizabeth Wydra in The Washington Times underscores the importance of the duties enumerated within it that will shape our country over the next eight years.

    According to a federal lawsuit filed Wednesday. Georgia's voter registration process violates the Voting Rights Act and has prevented tens of thousands of residents, mostly minorities, from registering to vote, reports Kate Brumback of the Associated Press.

    Ann E. Marimow of The Washington Post reports that nearly a decade after the Supreme Court struck down the District’s long-standing ban on handguns, the city is again at the forefront of a legal battle over the Second Amendment.

  • September 13, 2016
     
    On Friday the Supreme Court refused to revive a Michigan law that barred straight-ticket voting, reports Adam Liptak of The New York Times.
     
    Sen. Bob Casey posted an editorial to Medium in which he calls for an end to the senatorial obstruction leaving judicial vacancies unattended on federal courts.
     
    Constitutional scholar Akhil Reed Amar is featured on an episode of the Diane Rehm Show during which he describes how to interpret the pressing issues Americans face today through the lens of the constitution.
     
    University of Texas at Austin Law Professor Stephen Vladek stresses the importance of trusting existing institutions. In an op-ed for Star-Telegram, Vladek asserts that civilian courts, not expensive military commissions, are the best places to bring justice to enemies of the United States.