Fidelity to the Constitution

  • December 29, 2010
    In an article for the Washington University Law Review, Neil Kinkopf explores the ongoing challenge progressives face in articulating a method of constitutional interpretation in an era where the right-wing has successfully bandied “judicial activism” about in promotion of so-called “originalism.”

    In a mock memorandum to President Obama, Kinkopf, a law professor at Georgia State University, and former counselor to the Assistant Attorney General for the Office of Legal Policy, argues why the administration would likely not expend political capital on a nominee to the Supreme Court who openly espouses a method of constitutional interpretation contrary to the prevailing method pushed by conservative jurists, academics and legal advocacy groups.

    Kinkopf argues that “the conservative legal movement that has convinced the public that its method of interpretation is legitimate and that other methods are activist did not succeed overnight,” and that currently there is no “significant constituency that demands we seek to promote a progressive legal agenda.”

    He continues that until such a constituency forms “demanding a progressive approach to constitutional issues,” it would be foolhardy for the administration to drift from its current strategy of not spending much political capital on particular nominees to the federal bench.

    So at the moment, Kinkopf explains, the conservative legal movement has successfully “convinced the public that its method of interpretation is legitimate and that other methods are activist ….”

    His mock memo to the president provides a strong argument on why progressives, including policymakers, should support and help advance progressive legal thinkers who have begun to formulate an answer to the proponents of “originalism.”

    Kinkopf cites in his law review article the work of scholars such as Stanford law school professor Pamela Karlan, who co-authored the book Keeping Faith with the Constitution, which articulates troubling shortcomings with originalism and advances a progressive method of constitutional interpretation.

  • March 15, 2010
    Guest Post

    By Cody Hoesly, chapter leader, ACS Oregon Lawyer Chapter

    On March 10, 2010, ACS supporters gathered with the Oregon Lawyer Chapter to hear Professor Pam Karlan talk about a progressive vision of constitutional interpretation -- a vision she has embraced in her recent book Keeping Faith with the Constitution. Karlan (pictured) explained how her vision, which she termed "constitutional fidelity," confronts constitutional questions with an analysis of text, history and precedent, but also an appreciation for how society in the present day views a given issue and the real-world impact of Supreme Court decisions. In Karlan's view, that vision is both true to the Founders' intent, as well as modern day notions of justice, fairness, and constitutional meaning.

    Karlan noted that "constitutional fidelity" is in large part a response to currently established doctrines such as textualism and originalism, which rejected the prior view of the "living constitution" as disjointed from text and history, and ultimately subject to the whims of individual judges. As Chief Justice Roberts put it, a judge should merely call balls and strikes. But Karlan explained that the baseball metaphor is a poor one, because calling balls and strikes itself is a subjective undertaking, subject to the sound judgment of the umpire -- just as deciding constitutional cases is subject to the sound judgment of the justices on the Supreme Court. Moreover, proponents of originalism and textualism frequently deviate from strict adherence to those doctrines when it would confound their preferred policy outcomes -- a level of individual input they claim to avoid. And originalists and textualists generally take into account all of the evidence that "constitutional fidelity" adherents would take account of -- it's just that they fill the blanks in with different, but no more valid, policy choices based on their own views.

    The question becomes whether "constitutional fidelity" can gain ground against originalism and textualism. It can, but it will require a sustained program of support. Accordingly, as Karlan explained, it is not helpful when progressive judicial nominees embrace the baseball metaphor -- they ought to embrace the fact that a "wise Latina" adds a different perspective than another white male -- a perspective that will likely lead to different results in close cases. 

     

  • May 1, 2009
    Balkinization notes today's release of Keeping Faith with the Constitution and a companion volume called It Is a Constitution We Are Expounding: Collected Writings on Interpreting Our Founding Document. Jack M. Balkin writes:

    These two books are part of a flowering of debate and discussion about the constitution and constitutional interpretation in the past five years that has arisen naturally as liberals have once again found their political voice. This should not be surprising. The rise of movement conservatism also led to a great deal of rethinking about constitutional interpretation. This is all to the good. The Constitution belongs to everyone; as each generation rethinks what the Constitution means in their time, they make it their own.