Constitutional Interpretation and Change

  • November 17, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winker is author of Gunfight: The Battle over the Right to Bear Arms in America.

    As the Supreme Court has made clear, the Second Amendment is not an insurmountable barrier to gun control. President Barack Obama should not let the stalemate in Congress be one either. That’s why I, along with numerous other law professors, signed the “Statement of Law Professors on the Constitution and Executive Action to Reduce Gun Violence.” Even in the absence of new federal gun legislation to require every gun buyer to pass a simple background check, the president should continue to seek ways to reduce gun violence through executive action.

    Although Obama’s use of executive powers follows longstanding presidential tradition, it has proven controversial. Some have suggested – incorrectly – that executive action on guns would be unauthorized under the Constitution or undermine the Second Amendment right to keep and bear arms. In fact, however, the Second Amendment gives the government wide leeway to regulate guns to enhance public safety. Moreover, the Constitution vests Obama with the obligation to insure that congressional mandates “be faithfully executed,” enabling him to take executive action.

    Executive action designed, for instance, to clarify existing federal statutes is clearly within the president’s power. The president can, and should, clarify when a gun seller is “engaged in the business” of dealing firearms and thus required to have a federal license. He should also apply the existing federal law barring gun possession by people convicted of misdemeanor crimes of domestic violence to non-married couples and prioritize prosecution of illegal gun buyers. None of these reforms undermine the individual’s right to keep and bear arms for self-defense.  

    As with all individual rights, the president should be sure to pursue only those executive actions that do not infringe the Constitution. As the Statement suggests, however, there is much President Obama can still do to reduce gun violence well within the Constitution’s boundaries.

  • 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 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.”

  • September 16, 2015
    Guest Post

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

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

    On this Constitution Day, we would do well to focus on politics. While it is true that the Constitution is “the supreme Law of the Land” (Article IV, section 2) and that there are important differences between law and politics, time has come for those who love the Constitution to turn to politics – and not just any politics but politics of the basest kind: partisan, electoral politics. For the future of the Constitution rests in the hands of the men and women who are running to be elected “President of the United States” (Article II, section 1).

    Candidates are vying for the voters’ support by endorsing major policy initiatives, such as Bush’s tax plan or Clinton’s voting reforms. Regardless who wins, these legislative efforts require the support of both the House and the Senate (Article I, section 7), which aren’t likely to go along easily. The House is expected to stay Republican, inhibiting anything a Democratic president could achieve. The Senate is expected to shift Democrat, limiting any GOP president’s legislative agenda.

    One place where the president will likely have a strong impact is the future of the Constitution. While Supreme Court nominations require “the Advice and Consent of the Senate” (Article II, section 2), in practice few nominees are rejected absent a glaring lack of qualifications or an obviously extreme judicial philosophy. And the next president is almost certain to select at least one and possibly four Supreme Court Justices. When the next president is sworn in on January 20, 2017 (20th Amendment, section 1), three justices will be over eighty (Ruth Bader Ginsburg, Antonin Scalia, and Anthony Kennedy) and one nearing that age (Breyer).   

  • September 16, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst, Open Society Foundations

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

     “Neither slavery nor involuntary servitude shall exist, except as punishment for a crime ….”  This criminal punishment exception to the 13th Amendment is all the more brazen when one considers the inhumanity of lengthy prison sentences today – often handed out in assembly-line fashion, and dispensed more often to Blacks. Although we call our system a criminal justice system, its focus is punishment and it punishes very severely.  Punishment’s correlation to enslavement remains in the Constitution and, as such, must be closely scrutinized.

    As a staff attorney for the ACLU’s National Prison Project in the 1980s, I often cited in my conditions of confinement briefs Chief Justice Warren’s notable 1957 quote in Trop v. Dulles. His statement heralded the importance of considering the “evolving standards of decency that mark the progress of a maturing society.” This principle recognizes a people’s moral growth due to advancements in attitude and approaches.

    During the height of the war on drugs with mandatory minimum sentences firmly in vogue, unnecessarily long sentences were robotically meted out with seemingly callous abandon.  Shocking punishments over the past 30 years of 10, 20, 30 years and life imprisonment for drug offenses hardly raised an eyebrow. These commonplace sentences snatched mothers from children, men from loved ones, and furthered the destabilization of families and communities. Such punishments should offend our society’s standard of decency. 

    But they have not.  

    In 1991 the Supreme Court ruled in Harmelin v. Michigan that mandatory life imprisonment for a first-time drug offense did not violate the 8th Amendment’s ban against cruel and unusual punishment because, although the punishment was cruel, it was not unusual. It sounds ludicrous and left many of us flabbergasted.

    The twisted rationale reminded me of McClesky v. Kemp, decided a few years earlier in 1987. There the Court declined to provide relief in a death penalty case despite overwhelming evidence of racial bias because the justices feared that the floodgates would be opened to widespread racial challenges in other parts of criminal sentencing as well.   

    Lengthy sentences are cruel, but they are usual. Systemic racism exists, but that is the norm. Fortunately, since Harmelin, the Supreme Court has seen fit to use the 8th Amendment to ban the beating by prison guards of a handcuffed prisoner (Hudson v. McMillian, 1992); to prohibit the execution of a mentally retarded person (Atkins v. Virginia, 2002); to bar the execution of a prisoner for crimes committed while a minor (Roper v. Simmons, 2005); and to abolish life without parole for minors who commit non-homicidal crimes (Graham v. Florida, 2010).