Constitutional Interpretation and Change

  • 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.


  • July 8, 2015
    Guest Post

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

    The so called new originalism has generated a good deal of academic buzz over the past few years.  (As is true for most forms of originalism the actual impact of the theory on the behavior of courts has been quite modest.)  It is hard to find much support for originalism among professional historians. Judged from the perspective of history, most new originalist scholarship seems methodologically simplistic and ideologically tendentious. Rather than move constitutional theory forward, new originalism represents a serious intellectual step backwards

    In the current issue of The Virginia Law Review Professor Lawrence Solum of Georgetown, a prominent new originalist, responds to some of this recent historical criticism. Solum’s variant of new originalism is the most sophisticated of the many rival theories now floating around.  Moreover, he maintains that his originalist approach to history rests on truths derived from philosophy and linguistics, insights that he claims historians have neglected. Although Solum has dressed up his theory in a ponderous philosophical jargon, his approach has done little more than wed the old law office history to a new law office philosophy. Stripped of its pretentious vocabulary, Solum’s theory leaves us at the same old impasse: originalism remains an ideology pretending to be a scholarly methodology.

    Solum describes his theory as follows:

    Because constitutional communication (like legal communication generally) is simply a form of human communication, theories of constitutional interpretation must be reconciled with the general theory of the way linguistic communication works that has been developed in the philosophy of language and theoretical linguistics.

    The first problem with such a claim is that it mistakenly asserts that there is a clear consensus in the philosophy of language about how to approach issues of meaning. This statement is clearly false. Philosophers remain deeply divided over these types of questions. Even if one assumes that some variant of Gricean pragmatics (the model Solum favors) is the correct theory to understand constitutional communication, Solum’s adaptation of Gricean ideas is questionable at best, and arguably is simply wrong-headed. The claim that constitutional communication is just another form of ordinary communication and must conform to the models used to comprehend ordinary language seems equally problematic. There are many forms of communication that do not conform to the rules governing ordinary language, for example, poetry, politics, and oratory.  (Indeed the very idea of a universal model of ordinary communication that transcends boundaries of time, space, and place itself seems deeply ethnocentric and has been challenged by many anthropologists.)

    The final problem with Solum’s model stems from his rendering of the current state of linguistic theory. Solum appears to have ignored the entire sub-fields of  socio-linguistics and linguistic anthropology. Rather than support his theory, empirical work in these two fields undermines virtually every one of Solum’s assumptions and claims about how language works. Indeed,  if one looks at Solum’s  model it clearly violates some of the most basic research protocols in these sub-fields by assuming the existence of a broad consensus on linguistic matters and ignoring the existence of rival speech communities within the dominant linguistic community under examination -- Founding era America. Although English speakers in America in 1788 may have been part of the same linguistic community, they were not all members of the same speech community. Indeed, the degree of linguistic consensus Solum posits for post-Revolutionary era America exceeds anything linguistic anthropologists have ever documented in decades of field research. Solum’s theory is really a form of American exceptionalism on steroids. Such a consensus model is not only hard to reconcile with the empirical evidence gathered by anthropologists about linguistic diversity in virtually every complex literate society, it does not fit the available historical evidence about Founding era constitutional culture. The Founding era was not characterized by consensus, but was defined by profound conflicts over the meaning of constitutional terms, constitutional interpretive methods, and constitutional aspirations. New originalists, including Solum have never grasped this basic fact which historians demonstrated decades ago. 

  • June 26, 2015
    Guest Post

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

    The Supreme Court’s decision upholding a right to marriage equality for gays and lesbians surprised no one, but that makes the victory for liberty and equality no less important. Two years ago, the Supreme Court, in United States v. Windsor, declared unconstitutional a key provision of the federal Defense of Marriage Act. Justice Kennedy wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court held that there was no legitimate purpose served by the federal government refusing to recognize same sex marriages.

    Virtually every lower court, except for the United States Court of Appeals for the Sixth Circuit, interpreted Windsor as providing a basis for invalidating laws prohibiting same sex marriage. As a result, as the Supreme Court considered the issue, marriage equality existed in 37 states and the District of Columbia. The issue before the Court was less about whether to extend marriage equality and more about whether the Court would take it away from all of the states where it existed by virtue of Court decisions.

    Ultimately, the Supreme Court’s decision reflects that there is no legitimate government purpose served by denying gays and lesbians of the right to marry. A history of discrimination never is enough to justify current discrimination. The argument based on procreation was silly.  Gay and lesbian couples will procreate – by adoption, surrogacy, and artificial insemination – whether they can marry or not. Their children should be able to benefit from marriage, the same as children of heterosexual couples.

    The Court’s decision will be regarded as a historic landmark for advancing equality and liberty. It is the Court playing exactly the role that it should in society:  protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental.