• November 17, 2010

    Originalism guest-starred on last Thursday's episode of "30 Rock," along with the constitutional theory's most recent supporter, "Mad Men" star John Slattery.

    Slattery played a congressional candidate who described himself as for small government, literally, saying: "If we have to have government, make it as small as possible: dwarves, tiny buildings, pizza bagels for lunch."

    Network executive Jack Donaghy spends the episode trying to boost Austin's campaign, but eventually decides he can no longer support his candidacy after seeing Austin's latest attempt at a campaign advertisement.

    Watch a clip of the ad, touting the candidate's originalism. (Click on the image below and scroll down to the second clip.)


  • October 21, 2010
    The Conservative Assault on the Constitution
    Erwin Chemerinsky

    By Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law and a preeminent scholar on constitutional law.
    Since Richard Nixon ran for President in 1968, conservatives have sought to change constitutional law in a conservative direction. To a large extent, in virtually every area of constitutional law, they have succeeded. The focus of my new book, The Conservative Assault on the Constitution, is to describe what has happened and how conservative presidents and justices have lessened constitutional protections and moved constitutional law significantly to the right.

    Between 1968 and 2009, Democratic Presidents appointed only two justices to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, while Republican Presidents appointed a dozen justices. Many Republican-appointed justices - like Antonin Scalia and Clarence Thomas - are as conservative as any who have served on the Supreme Court. John Roberts and Samuel Alito have been everything that conservatives could have hoped for and liberals could have feared.

    That, of course, leaves Anthony Kennedy as the swing justice on the Court. But Kennedy, an appointee of President Ronald Reagan, is much more likely to side with the conservatives than with the liberals. Last year, there were 12 5-4 decisions split along ideological lines, with Roberts, Scalia, Thomas and Alito on one side, and Stevens, Ginsburg, Breyer, and Sotomayor on the other. Justice Kennedy sided with the conservatives in nine of these dozen cases and with the liberals in three. The year before, there were 16 ideologically divided 5-4 cases and Justice Kennedy sided with the conservatives in 11 of 16.

    The success of these justices in remaking constitutional law in a conservative direction must be understood as part of a larger conservative agenda. Because the Supreme Court decides cases one at a time, because not every case has come to a conservative result, and because Roe v. Wade has not been overruled, it is easy to underestimate the dramatic successes that conservatives have had.

    The focus of my book is to show what has happened across many areas of constitutional law. I examine six areas. Chapter 1 focuses on how a series of Supreme Court decisions in the 1970s, 1990s, and the last decade have led to schools that are increasingly racially separate and unequal.

  • October 1, 2010
    Searching for that five-minute sound bite on the best originalism has to offer? Stephen Colbert has delivered. In typical ironic fashion, he introduced his word of the day during Wednesday night's show: "Original Spin."

    "I say a document should never change its meaning unless it's your health insurance policy and you just got sick," he said. And with that, he turned to Justice Scalia to help him defend this policy:

    I've always said, a good Supreme Court justice is a constitutional scholar first. A time traveling mind reader second. And, as an originalist, Scalia argues that the idea that the Equal Protection Clause of Fourteenth Amendment protects women's rights is a "modern invention," because he says, in 1868 when it was written, nobody thought it was directed against sex discrimination. Evidently, back then, women hadn't been invented yet.

    Plus, the Fourteenth Amendment was created to protect the rights of newly freed slaves. That's why it strictly limits equal protection under the law to "All persons born or naturalized in the United States." So all Scalia is saying is that women aren't persons.

    Now ladies, please, don't take it personally. Which you can't, since constitutionally you're not persons. Scalia wants you to have rights, that's why earlier this year, he joined the majority in the Citizens United ruling, which found that corporations are people with constitutional rights. So ladies, all you have to do is incorporate. You see if I refuse to hire Carol Morris as a camera operator because I don't want her menstrual cycle attracting bears to my studio, she has no legal recourse. But if I mess with Carroll Morris Inc., that corporate American can sue me for discrimination.

    Likewise, gays don't have protection from sexual discrimination, Colbert reasoned, because "back in the 1860s there were no gay people."

    Now, if you're offended by Scalia's argument perhaps you should defend your rights with force of arms, but remember, by this argument the Second Amendment gives you the right to bear only blunderbusses and flintlock pistols.

    Watch the full video below.

    The Colbert Report Mon - Thurs 11:30pm / 10:30c
    The Word - Original Spin
    Colbert Report Full Episodes 2010 Election March to Keep Fear Alive
  • September 30, 2010
    Justice Brennan: Liberal Champion
    Seth Stern and Stephen Wermiel

    By Seth Stern and Stephen Wermiel, coauthors of Justice Brennan: Liberal Champion, which will be published this week. Stern is a reporter for Congressional Quarterly and a Harvard Law School graduate. Wermiel teaches constitutional law at American University Washington College of Law.

    Twenty five years ago this month, Justice William J. Brennan Jr. engaged Attorney General Edwin Meese in a then unprecedented public debate on constitutional interpretation.

    Brennan, who at 79 remained the Supreme Court's most vigorous proponent of a living constitution, never actually shared a stage with Meese, President Reagan's long time adviser and leading advocate of originalism. If they had, the ideal venue for this jurisprudential equivalent of the 1975 match, pitting Muhammad Ali against Joe Frazier and nicknamed the "Thrilla in Manila," might have been a boxing ring.

    Meese had lobbed the first volley in a July, 1985 speech to the American Bar Association's annual convention in Washington, D.C. titled "Jurisprudence of Original Intention." He generated headlines by criticizing the Court for "a drift back toward the radical egalitarianism and expansive civil libertarianism of the Warren Court."

    Meese later admitted he purposely chose the prominent venue - and provocative tone - to raise originalism's profile. The idea that the Constitution should be interpreted according to the original understanding of the founding fathers had gained currency among conservative legal scholars in the previous decade but not yet seeped into the public consciousness.

  • September 17, 2010

    The average lifespan of constitutions around the world since 1789 is 17 years, Stanford Law School professor and ACS Board member Pamela Karlan told an audience this week during a debate on constitutional interpretation, in celebration of the U.S. Constitution's 223rd anniversary.

    Our constitution has endured as long as it has because our interpretational methods are adaptable to changes in cultural norms, she explained during the event, which was centered on Keeping Faith with the Constitution, the book she coauthored with Goodwin Liu and Christopher Schroeder. Keeping Faith was first published by ACS last year and republished this summer by Oxford University Press with a new chapter on the First Amendment.

    Debating Karlan was Georgetown University law professor and Federalist Society member Nicholas Quinn Rosenkranz, who challenged Karlan's assertion that present understandings can help us interpret phrases and words in the Constitution.

    "The Constitution was not just made by courts interpreting the Constitution or by people changing the words in the Constitution by amendment, but also by people who gave the Constitution life," Karlan explained.

    Slate Senior Editor Dahlia Lithwick, who moderated the panel, said in re-reading Keeping Faith, she "came away with the stunning, chilling feeling that, man, the Constitution is cool."

    President Barack Obama thinks so, too. In a proclamation declaring Sept. 17, 2010 Constitution Day and Citizenship Day, he said, "In the United States, our Constitution is not simply words written on aging parchment, but a foundation of government, a protector of liberties, and a guarantee that we are all free to shape our own destiny. As we celebrate this document's profound impact on our everyday lives, may all Americans strive to uphold its vision of freedom and justice for all."

    During Constitution Week ACS has continued its tradition of teaching a new generation of students about our founding document through the Constitution in the Classroom program.

    But this year, ACS has also sought to raise the public's awareness about the danger that unfilled judicial vacancies on the federal bench pose to our constitutional form of government. In an op-ed in The Huffington Post, ACS Executive Director Caroline Fredrickson wrote that the critical number of vacancies, and the Senate obstruction that has perpetuated those vacancies, "threatens the vitality of our founding document."

    Karlan also spoke earlier this year about the importance of a robust, qualified and independent judiciary to uphold our Constitution.

    View Karlan's remarks during the 2010 ACS National Convention here, and the Karlan/Rosenkranz debate here.