Geoffrey R. Stone

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.

by Nicole Flatow

Although the recent appeals court decision striking down the individual coverage provision of the Affordable Care Act was a blow to health insurance reform, it’s important to recognize the victory in this case: that some 950 pages of the law were upheld, Washington & Lee law professor Timothy Jost said during an American Constitution Society phone briefing about Affordable Care Act litigation.

“I think that the bottom line news from this case is that the federal government and the states should proceed with implementing the Affordable Care Act,” Jost said, noting that this case was an appeal from a lower court decision striking down the entire law, and that the plaintiffs had specifically challenged a Medicaid expansion provision that the U.S. Court of Appeals for the Eleventh Circuit upheld.

“It’s clear after this decision that there’s no decision out there holding the entire law to be unconstitutional and I’m not even sure that the Supreme Court is going to take a close look at that,” he said. “I rather doubt that they will.”

The appeals court decision does all but assure that the Supreme Court will consider the constitutionality of the law’s so-called individual coverage provision, which requires that most individuals buy health insurance or pay a penalty. (The court came to the opposite conclusion of the U.S. Court of Appeals for the Sixth Circuit, creating a split between two federal appeals courts.)

Both Jost and University of Chicago law professor Geoffrey R. Stone, who also spoke during the briefing, predicted that the Supreme Court would uphold the decision, possibly with a majority of as many as eight justices. Based on precedent on the Constitution’s commerce clause, Stone reasoned, deciding this case is easy.