Originalism

William Marshall, a constitutional law expert and professor of law at the University of North Carolina and former Deputy White House Counsel, skewers Washington Post columnist Michael Gerson's recent attack on Sen. Franken's keynote speech at the 2010 ACS National Convention.

During his ACS speech, Sen. Franken tagged conservative activists' and jurists' advocacy of originalism - a strict reading of the Constitution to tackle today's controversies - as "a talking point," not a "pillar of our Constitutional history." Franken went on to slam the Roberts Court for dismantling "the legal protections that help ordinary people find justice when wronged by the economically powerful," using numerous examples of cases demonstrating that point.

Gerson's article attacked Franken as someone who "should not be taken seriously," and Franken's description of originalism as a "talking point."

In an article for The Huffington Post, Marshall rips Gerson's column, writing that Franken's "central observation that the Roberts' Court has been activist in favor of conservative results is unassailable."

Marshall notes that conservatives lay claim to judicial restraint "on grounds that they purportedly adhere to binding constitutional principles of originalism while liberals, in contrast, are guided only by untethered principles of justice."

Marshall continues:

Franken attacked this assertion in his ACS speech as well, characterizing the conservatives' purported reliance on originalism as little more than a talking point, and it is this particular characterization to which Gerson takes great exception. To Gerson, originalism is not a talking point but ‘a developed, consistent theory of judicial interpretation.' And maybe it is for some academics who are willing to take the theory as far as it will go - including to results that for most Americans would be politically unacceptable. But the fact that Franken is correct and, for most conservatives, reliance on originalism has been little more than a talking point. Not too many conservatives argue that various federal drug laws are unconstitutional, for example, and many contend that federal power has not been expanded enough in the areas of tort reform and property takings. In reality, most conservatives rely on originalist principles only selectively and seldom when it gets in the way of results that they want to achieve. Whatever else the Citizens United case may stand for, the notion that corporations have unlimited rights to spend money to influence elections is no originalist. The Court's rejection of federal affirmative action, whatever else one thinks of the policy, is not originalist. The Court's efforts to place curbs on the ability of local communities to protect the environment or to allow public access to beaches are not originalist. The list goes on.

See Marshall's entire column here. Video and transcript of Franken's ACS speech are available here.

Sen. Al Franken will kick off the 2010 ACS National Convention on Thursday, June 17 with a speech offering a "real-world perspective on what we lose when we let conservatives control our constitutional discourse."

During the Senate Judiciary Committee's confirmation hearings for Supreme Court Justice Sonia Sotomayor, Sen. Franken tackled an element of conservatives' constitutional discourse that tags progressive judges as engaging in so-called judicial activism. Franken pointed to the Supreme Court's conservative wing as evidence that it is a leading force of activism from the bench.

"The current Supreme Court has consistently struck down and questioned longstanding protections for Americans," Franken said during Sotomayor's confirmation hearings. "And I'm talking about individual rights, individual protections, individual liberties. This Supreme Court came close to overturning critical portions of the voting rights act. The Court did this despite the express powers that Congress has granted under the 15th amendment to enact this law." Franken went on to note recent Supreme Court rulings that have made it more difficult for people file lawsuits. "This is judicial activism," Frank said. "This is a Court that is willing to reverse itself to limit the rights of individual Americans. This is a Court that is more than willing to overturn Congress to achieve its own agenda of what is right."

In a press statement on the Sotomayor nomination, Franken continued that the high court's rulings have also had a detrimental impact on "the rights of Americans as employees, as small business owners, and as investors. And they've done this by overturning long-standing precedents."

Franken is the featured speaker at the Convention's Gala Dinner starting at 7 p.m. in the Grand Ballroom of the Renaissance Mayflower Hotel in Washington, D.C. The Convention runs June 17 - 19. Visit the ACS Web site here, for the full Convention schedule and to register.