Constitutional Interpretation and Change

  • 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).

  • September 16, 2015
    Guest Post

    by Brianne Gorod, Appellate Counsel, Constitutional Accountability Center

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

    On September 17, 1787, the nation’s Framers signed their names to the new national charter they had just drafted -- what would become the United States Constitution.  And so each September we celebrate this important anniversary, marking the day when our Founding Fathers signed the document that gave birth to our system of government and has governed our country in the more than 200 years since. 

    But as we celebrate this significant anniversary, we should also remember the many other anniversaries that are an important part of our Constitution’s story—anniversaries of the constitutional amendments that have helped to fully realize the Framers’ goal, made explicit in the document itself, to “establish Justice,” to “promote the general Welfare,” and “to form a more perfect Union.”  Among other things, these amendments are what prohibit the government from interfering with our freedom of speech; they are what protect us from unreasonable searches and seizures; and they are what guarantee that all persons are equal under the law.

    The Constitution we celebrate today and this week is as much a product of these anniversaries as it is the one that we mark by celebrating Constitution Week.  And that is why it is so important to remember that our nation’s constitutional history did not end in September 1787, or even when that original document was ratified by New Hampshire (the ninth state to do so) and became officially established the following year. 

    The importance of our continuing constitutional story is sometimes ignored even by those who should most remember it—the members of the Supreme Court who have foremost authority and responsibility for interpreting the Constitution and for “say[ing] what the Law is.”  Two years ago, for example, in Shelby County v. Holder, the Supreme Court, in a 5-4 decision, invalidated a key provision of the Voting Rights Act, concluding that the “‘Act imposes current burdens’” and could not “‘be justified by current needs.’”  Writing for the Court’s conservative bloc, Chief Justice Roberts gave astonishingly short shrift to the Fifteenth Amendment, the one that guarantees the fundamental right to vote and gives Congress the authority to enact laws, like the VRA, designed to enforce that right.  Reading the Court’s opinion and its lengthy discussion of state sovereignty, one might almost be forgiven for concluding that our country’s constitutional history ended long before the adoption of the Fifteenth Amendment.  But, of course, it did not.

  • September 15, 2015
    Guest Post

    by Vinay Harpalani, J.D., Ph.D., Associate Professor of Law, Savannah Law School

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

    Does the U.S. Constitution permit universities to consider race as part of their admissions process? To date, the U.S. Supreme Court has answered yes—subject to specific conditions and requirements.  But race-conscious university admissions policies continue to be one of the most charged issues in modern constitutional jurisprudence. And the Court will again visit this debate in its October 2015 term, when it reconsiders Fisher v. Texas.

    At first glance, the constitutionality of race-conscious policies may appear to be contingent on one’s theory of interpretation. Living constitution theory―the idea of the Constitution as a dynamic, evolving document interpreted in light of changing social and political circumstances―is typically associated with social change and liberal political interests. The Supreme Court’s unanimous opinion in Brown v. Board of Education (1954), authored by Chief Justice Earl Warren, was grounded in living constitutionalism—striking down racial segregation in public schools because of the growing importance of education for citizenship and social adjustment, and because of new evidence of the harms of segregation to Black children. The Warren Court is known today for its expansion of civil rights and liberties through dynamic constitutional interpretation.

    However, a living constitution might also proscribe race-conscious university admissions. If the Constitution is dynamic and evolving, then it can also evolve to require race-neutrality—even after a period where race-conscious policies were constitutionally valid. Such an outcome is not implausible on the current Supreme Court. Recently, Justice Anthony Kennedy, who is the swing vote on this Court, seemed to embrace the notion of a living constitution when addressing the right of marriage for same-sex couples. His majority opinion in Obergefell v. Hodges (2015) stated:

    “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment . . . 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.”

    But such “new insight” could also “reveal” that diversity is no longer a compelling state interest or that it cannot be pursued by race-conscious means. And while he has repeatedly affirmed the diversity rationale—in his majority opinion in Fisher v. Texas (2013), his dissent in Grutter v. Bollinger (2003), and his concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 (2007)—Justice Kennedy has never actually approved of a race-conscious admissions policy. He is apt to strike down such policies on narrow tailoring grounds and may eventually find that the Constitution requires their proscription. In this vein, living constitution theory does not ensure the doctrinal viability of race-conscious university admissions.

  • September 14, 2015
    Guest Post

    by Joseph Kimble, Distinguished Professor Emeritus, WMU-Cooley Law School

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

    In Reading Law, Justice Antonin Scalia and Bryan Garner make this assertion about the interpretive theory called textualism, which they endorse and expound:

    [W]e must lay to rest at the outset the slander that [textualism] is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce “conservative” outcomes, sometimes “liberal” ones. [Reading Law, p. 16.]

    But that assertion is belied by the overwhelmingly conservative results that textualism does in fact produce, especially in the cases that matter most. Who can honestly doubt it?

    In a recent article, I’ve summarized six empirical studies. (See pp. 30–35 for details and attribution.) Four of the studies show a strong ideological bent in Justice Scalia’s opinions. Another concludes from an analysis of more than 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner.” The other study examines a 25-year set of the Court’s cases and concludes that a principal defense of originalism — its constraining effect on judges — “is overstated at best and illusory at worst.”

    In one of the studies, Professor Geoffrey Stone polled colleagues to identify the 20 most important Supreme Court cases since 2000. In every one, Justice Scalia voted for the conservative position. And Stone notes that originalism “in no way” explains that voting record.

    Besides the empirical studies, I cite 11 other sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism. (P. 35 note 96.)

  • July 17, 2015

    by Nanya Springer

    When Harvard Law School’s Laurence Tribe delivered the Chautauqua Institution’s 11th annual Robert H. Jackson Lecture on the U.S. Supreme Court last week, he had a lot of material to cover. The latest Supreme Court Term was eventful. From the Court’s historic recognition of same-sex marriage equality in Obergefell to its decision to uphold the Affordable Care Act health care exchanges in King, June 2015 produced decisions that will impact the way millions of Americans live their lives.

    While Professor Tribe discussed the significance of the high court’s opinions, he also addressed recent “momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions,” including the racially motivated massacre at Mother Emanuel Church in Charleston which preceded the Court’s ruling in Walker v. Sons of Confederate Veterans by less than 24 hours.

    Tribe says, “My hope is to tie the electrifying events of June together with [former Supreme Court Justice] Jackson’s eloquence and pragmatism, to arrive at a brighter and larger sense of that Constitution, a less cramped understanding of constitutional law, and a more capacious vision of the Supreme Court’s role in giving the Constitution life.”

    A full transcript of the speech is available here and here, and the video can be viewed below.