Methods of interpretation

  • September 17, 2012
    Guest Post

    By Adam Winkler, a professor at the UCLA School of Law, and author of Gunfight: The Battle over the Right to Bear Arms in America. This post is part of an ACSblog Constitution Day Symposium.


    Over the past three decades, conservative legal commentators have promoted a narrative about our Constitution that puts our hallowed text at odds with the goals of liberals. The Constitution, this story goes, is a profoundly conservative document whose words and principles tilt favorably towards the policy goals of today’s Republican Party: Small government. Law and order. Hostile to gay rights. Opposed to campaign finance law and affirmative action. Favoring nearly unbridled executive power in matters of war and foreign policy. If only jurists stuck to history – by interpreting the text by way of original intent or, alternatively, original meaning, rather than the living constitutionalism favored by Warren Court liberals – we would see the Constitution in its true light.

    There’s just one problem with this story. It’s not true.

    The Constitution was designed by the Framers to be a radically progressive document. The founding generation was comprised of revolutionaries, people who sought to make a new system of government that broadened rights rather than limited them. Their handiwork was itself thoroughly reformed by another group of progressives: the radical Republicans who added the Reconstruction Amendments. Over and over again, the Constitution has been revised by people inspired by liberal ideas, from the populists who sought the direct elections of senators to woman rights proponents who fought for the right to vote. Taken as a whole, the Constitution is anything but a conservative document. And while its words and principles don’t favor any political party, many of its core ideas support the policy goals of modern-day liberals. 

    Take, for instance, the argument that the Constitution favors small government. It is undoubtedly true that the framers wanted to circumscribe the power of government; that’s why we have the separation of powers, federalism, and a Bill of Rights. Yet often ignored is that the Framers crafted the Constitution to expand the powers of government so that Congress could effectively solve national problems. The document the Constitution replaced – the Articles of Confederation – hobbled government too much and the men who met in Philadelphia sought to rectify that error.

  • July 18, 2012
    Guest Post

    By Jeffrey M. Shaman, a professor at DePaul University College of Law and author of the just-released ACS Issue Brief, “Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech.”


    Arrogant, defiant, and dogmatic, Supreme Court Justice Antonin Scalia is a true believer in the theory of originalism — the idea that the Constitution should be interpreted according to its original meaning when first adopted in 1787. Originalism is based on the notion that the Constitution has a fixed meaning that does not change with the passage of time. Given the bully pulpit of his high office, Justice Scalia is the nation’s most prominent advocate of this extreme and deeply conservative ideology.

    The problem is that originalism is a fraud that misrepresents the nature of history by presuming that it has an objective meaning that can be discovered through study of the past. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one’s mind. Originalism, then, perpetrates a pretense of objectivity that functions as a facade for policy-making.

    The illusory propensity of originalism is strikingly apparent in District of Columbia v. Heller, the 2008 decision in which the Supreme Court ruled by a slim 5-4 majority that the Second Amendment of the Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

  • July 10, 2012

    by Jeremy Leaming

    While liberals continue to ponderously ponder how to refute the right’s method of constitutional interpretation called originalism, the right continues to advance a simplistic and destructive story that the Constitution is all about severely limiting the federal government’s reach. 

    For far too long liberals have obsessed over methods of constitutional interpretation, leaving rightists to advance the constitutional storyline, which says the nation’s governing document only promotes individualism, limited government, and of course Christianity.

    As law professor and historian William E. Forbath recently noted in an op-ed for The New York Times liberals have far too often shrugged their shoulders at this narrative, claiming that “rights and wrongs of economic life” are not addressed by the Constitution, but instead through politics.

    “That’s a major failing,” Forbath (pictured) writes, “because there is a venerable rival to constitutional laissez-faire: a rich distributive tradition of constitutional law and politics, rooted in the framers’ generation. None other than James Madison was among its prominent expounders – in his draft of the Virginia Constitution, he included rights to free education and public land.”

    In a more expansive piece for the book, The Constitution in 2020, Forbath explores the “historical heft” of a century-long effort “to make good on the constitutional justice of livelihoods and social and economic rights ….”

    For example, Abraham Lincoln and other founders of the Republican Party argued that equal rights also included “a fair distribution of initial endowments,” and FDR in his State of the Union proposing a Second Bill of Rights, said the government “owes to everyone an avenue to possess himself of a portion of [the nation’s wealth] sufficient for his needs, through his own work.”

    Moreover, Forbath noted, African Americans during the Civil Rights Movement strived to “craft a broader social rights agenda,” including the right to a decent income. During the Civil Rights movement, the federal courts took note of the efforts in “undoing the exclusion of black women from welfare rolls,” he continued.

    The Supreme Court in its 1970 Goldberg v. Kelly opinion, said, “From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.”

  • July 9, 2012
    Guest Post

    By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project


    A federal court in Manhattan has entered a summary judgment in favor of Edith Windsor, a widow assessed an estate tax of $363,053 on her spousal inheritance. This sum was assessed because the federal government, pursuant to Section 3 of the Defense of Marriage Act (“DOMA”), deems her Canada-solemnized same-sex marriage nonexistent.

    This holding is the latest defeat for Congress’s 1996 handiwork. With the request by the Obama administration for certiorari to the First Circuit DOMA holding and to a Ninth Circuit DOMA scheduled for September oral argument, and with Prop 8 litigation potentially headed for high court review, Windsor nicely differentiates among the distinctive issues affecting same-sex marriage.

    In Windsor, a brief for intervenors for the U.S. House of Representatives argued that Congress could rationally conclude there is a federal interest in impeding “an unprecedented redefinition of our foundational social institution.” Judge Barbara Jones politely demolished this portentous pronouncement as support for federal law.

    The judge demonstrates that all-or-nothing arguments about same-sex marriage conflate separate questions. The intuition that a loud NO! is final masks the need for nuance. 

    With same-sex marriage, there are several obviously distinctive questions. First, must states affirmatively authorize same-sex marriage by issuing marriage licenses to couples? Second, may the federal government treat as null for federal law a state-created legal status affecting family relations? Third, to what extent are states required to afford recognition to legal statuses created outside the state by sister states? Fourth, what determines whether a state has recognized a given marriage, at a given time?  With differing questions, different factors are at work, and they demand multiple answers.

  • July 6, 2012

    by Samantha Berkovits

    University of Texas law Professor William E. Forbath calls for liberals to champion a stronger interpretation of the Constitution that aims to squelch inequality. Those tempted to take up this cause, which Forbath presented in an op-ed in today’s New York Times, may find themselves facing an unfriendly battlefield, but Forbath is confident that history is on their side.

    The constitutional argument for equality may seem inherent in a document meant to “promote the general Welfare.” However, the recent victory for liberals in the Affordable Care Act case was ensconced in nearly 200 pages of opinion, with much of the language holding the potential to destroy the legacy of the New Deal, with rough consequences for an American public already facing a dangerous economic landscape. Forbath writes, “Even the new doctrine that the majority adopted may hobble efforts to condition federal grants-in-aid on compliance with national goals, like child-care assistance for the working poor.”

    Conservatives, Forbath notes, would have the public believe that the goal of the Constitution is to protect and establish “individualism, small government, godliness and private property.” In response to this “crackpot originalism” liberals have been playing defense, when they should have been on the offensive. According to Forbath, all the necessary tools to present a case for a Constitution that allows the government to, in the words of Justice Ginsburg, “regulate the national economy in the interest of those who labor to sustain it” can be found in American history.