Constitutional Interpretation and Change

  • February 1, 2016
    Guest Post

    by Juan Perea, professor of law, Loyola University Chicago School of Law

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    Most contemporary historians conclude that the American Constitution is a proslavery document. When I speak with historians about teaching constitutional law, often they are shocked that law professors typically do not teach the Constitution as proslavery. I think the general failure to teach the Constitution as a proslavery document does a major disservice both to students and to society.

    So what do I mean when I label the Constitution “proslavery?” I mean that the Constitution protected slavery and promoted slave ownership. The Constitution’s text contains several proslavery clauses. The Apportionment Clause, Article I, Section 2, added three-fifths of “all other Persons” ‒ slaves ‒ to the number of free inhabitants of a state for purposes of representation. This clause, by boosting the number of representatives in Congress for the slave states, guaranteed political protection for slavery. The same three-fifths ratio boosted the representation of slave states in the Electoral College during presidential elections. The slave import limitation, Article I, Section 9, prohibited Congress from regulating the international slave trade until 1808, 21 years after ratification of the Constitution. Not only was Congress forbidden from regulating the transoceanic slave trade, but Article V of the Constitution explicitly forbids amending the slave import limitation, one of only two such forbidden matters in the whole document. Lastly, the Fugitive Slave Clause, Article IV, Section 2, guaranteed nationally, for the first time, the right of slave owners to pursue and reclaim their slaves anywhere throughout the land.

    The Constitution thus protected slavery by increasing political representation for slave owners and slave states; by limiting, stringently though temporarily, congressional power to regulate the international slave trade; and by protecting the rights of slave owners to recapture their escaped slaves. The Constitution also promoted slave ownership by promising increased political representation while keeping unregulated the flow of slaves through the international slave trade for 21 years. Pretty significant protections, don’t you think?

    At this point one might ask, didn’t Reconstruction abolish slavery and require equal protection of the laws? Yes, the Reconstruction amendments did accomplish these things. However, the formal abolition of slavery only changed the rules of play, not the game of white domination itself. Slave codes became black codes, which became Jim Crow laws, which became race-neutral laws with outsized, unfair disparate impacts on people of color. Formal equal protection has yielded, in the main, only ostensibly race-neutral laws with heavily disparate racial impacts.

  • January 11, 2016
    Guest Post

    by Saul Cornell, the Paul and Diane Guenther Chair in American History, Fordham University

    In a thoughtful post on Politico, legal scholar Austin Sarat ponders why liberals have not made over-turning  District of Columbia v. Heller (2008)  a high priority. In that decision  a narrow 5-4 majority reversed 70 years of precedent and established, for the first time in the Court’s history, an individual right to possess a weapon for self-defense outside of the context of service in a well-regulated militia. Predictably, gun rights ideologues, such as the National Review’s Charles Cooke, have responded to Sarat in a vituperative manner, demonstrating once again how widespread ignorance about early American history continues to cloud this debate. Sadly, knowledge of the relevant history has never been a requirement for entry into the Second Amendment debate. Indeed, knowledge of history seems to be almost inversely proportional to ones commitment to gun rights ideology. Before demonstrating the multiple errors in Cooke’s flawed version of history, it is important to consider Sarat’s question: What should progressives do about Heller

    The first thing to observe is that Scalia’s absurd originalist methodology has been thoroughly discredited in the scholarly literature.  Some of the harshest criticism has come from true constitutional conservatives, including J. Harvie Wilkinson and Charles Fried. Although the methodology in Heller, as Judge Posner has written, borders on incoherent – the outcome—declaring an individual Second Amendment right to have a gun for self-defense—is what most Americans believe to be true, including such liberal stalwarts of gun control as Charles Schumer and, yes, President Barrack Obama. Indeed many scholars, most notably Reva Siegel, have noted that Heller is really an example of living constitutionalism dressed up in originalist garb. This fact presents a real dilemma for progressives. Given that most Americans believe that the Second Amendment now protects an individual right and most liberals favor a theory of a living Constitution—what should liberals think about Heller? This is not the place to answer that question, but Sarat deserves credit for raising the issue, which merits some thoughtful attention by progressives.

    As far as Cooke’s ill-informed gun rights rant goes, a closer look at the evidence easily demonstrates why he might want to reconsider heading back to Oxford for some serious training in history beyond his undergraduate courses.  His simplistic and anachronistic take on a complex legal and historical issue is a bit of an intellectual embarrassment to his distinguished alma mater.  Consider his first point that it is “unbelievable” that “that the Founders’ intent in codifying the Second Amendment was to protect the right of individuals to join an organization over which the federal government has constitutionally granted plenary power.” Gun rights advocates seldom seem to grasp the historical relationship between the Second Amendment right as framed and the complex politics of the militia in the Founding era.  At the time of its framing, anti-Federalists demanded both a transfer of federal control of the militia back to the states and protection for the right to bear arms for use in the militia. There are hardly any contemporary examples of discussions of a right to hunt or other private uses of firearms during ratification.  This does not mean that Americans did not value such rights, but not every right was elevated to the status of a constitutional provision.  There is no mention of a right to travel in the Constitution, but clearly Americans understood that this right existed.  In the end Anti-federalists were out maneuvered by Federalists and got the right to bear arms and no provision providing for a restoration of   state power over the militia. Here is what a leading Anti-Federalist author, using the penname “Centinel,” said about an early draft of the Second Amendment:

    A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, &c.”  It is remarkable that this article only makes the observation, “that a well regulated militia, composed of the body of the people is the best security of a free state;” it does not ordain, or constitutionally provide for, the establishment of such a one.

    Justice Scalia actually quotes this text in Heller and somehow twists its original meaning into a defense of an individual right to have arms. The obvious meaning of the text belies such a reading. “Centinel” shared the common Anti-Federalist complaint that the Second Amendment asserted a principle about militias, but failed to provide any structural means to guarantee it. There is nothing “farcical” about this—it is part of the complex historical give-and-take that resulted in the adoption of the first ten amendments.          

  • 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.”