This video interview is part of an ACSblog Constitution Week Symposium. By Nicole Flatow
The role of U.S. courts as a “corrective for the dangers of majoritarian abuse” has been stymied by conservatives and originalists, University of Chicago Board Chair Geoffrey R. Stone explains in a video interview with ACSblog.
“I think one of the real problems that we have had in the last 40 years in the United States is that conservatives have effectively taken control of the public discourse and the academic discourse about the proper role of courts and of constitutional interpretation,” says Stone, chair of the American Constitution Society Board of Directors.
This is dangerous not just because originalism and judicial restraint are “wrongheaded” on their own terms, but also because conservatives are misleading people about what the courts are actually doing, he explains.
“The public actually tends to believe that conservative judges and justices behave in a way that can be explained and justified in terms of judicial restraint and originalism when in fact, the actual jurisprudence of the existing majority on the Supreme Court and many Republican-appointed judges on the lower courts does in fact not fit,” he continues.
This problem is the subject of a new ACS Issue Brief by Stone and University of North Carolina law professor Bill Marshall, The Framers' Constitution: Toward a Theory of Principled Constitutionalism, which discusses how progressives can reframe the discussion about the Constitution and the courts.
“The Framers’ Constitution … is designed to illustrate why [originalism and judicial restraint] are deeply flawed, and why they don’t in fact put forth a coherent or persuasive theory of constitutional interpretation,” Stone explains.
Watch the interview below.