Originalism

  • 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
    www.colbertnation.com
    Colbert Report Full Episodes 2010 Election March to Keep Fear Alive
  • September 30, 2010
    BookTalk
    Justice Brennan: Liberal Champion
    By: 
    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.

     

  • September 15, 2010

    The Constitution is written generally so its principles can be applicable for changing times, Justice Stephen Breyer tells National Public Radio (NPR).

    In his interview, which can be heard here, Breyer said, "I think we're following an intention by people who wrote this document - Madison, Adams, Washington, Hamilton. They had an idea that they were writing a constitution and in that constitution, they would create certain institutions ... to create basically democratic systems of government protecting basic liberty. Much in the Constitution is written in a very general way. Words like ‘freedom of speech' do not define themselves. Nor does the word ‘liberty.' And what they intended with these very basic values, in a document, [was that they] would last for hundreds of years. So they had values that changed but little, while the application of those values changes as circumstances change."

    In an interview with ABC's "Good Morning America," to discuss his new book, Making Our Democracy Work: A Judge's View, Breyer said he wasn't convinced that the First Amendment protected the right of a Florida pastor to burn Qurans (the pastor eventually cancelled his plans after weeks of growing media attention). Breyer, citing a 1919 Supreme Court opinion by Justice Oliver Wendell Holmes Jr., said, "Holmes said it [the First Amendment] doesn't mean you can shout ‘fire' in a crowded theater."

  • September 15, 2010
    BookTalk
    Keeping Faith with the Constitution
    By: 
    Goodwin Liu, Pamela S. Karlan & Christopher H. Schroeder

    By Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School. Keeping Faith with the Constitution was originally published by ACS. It was recently republished by Oxford University Press with a new chapter on the First Amendment.

    Keeping Faith with the Constitution wades into a long-running debate about how we should interpret our Constitution. This debate is an important part of public policy discussions on everything from judicial nominations to health care reform. For a long time, conservatives have framed this debate by portraying themselves as strict adherents to the text and original understanding of the Constitution, while claiming that liberals and progressives ignore the text and decide cases based on their own values or policy preferences.

    That characterization is, of course, a caricature. In our book, we approach the topic through a different set of questions: How have judges, elected officials and citizens actually gone about the process of constitutional interpretation? What explains the enduring character of our Constitution in light of the profound economic, social and political changes that our nation has gone through? And how does this 220-year-old document retain its legitimacy, authority and relevance over time? Simply put, our thesis is that the Constitution has endured because judges, elected officials and citizens throughout our history have engaged in an ongoing process of interpretation. That interpretation reflects fidelity to our written Constitution. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires us to ask not how its text and principles would have been applied in 1789 or 1868, but rather how they should be applied today in light of the conditions and concerns of our society.

    This view of constitutional interpretation is commonsensical and flows from several features of the Constitution itself. First, many parts of the Constitution are phrased in broad terms that encompass more than the specific applications the Framers had in mind. For example, the Fourteenth Amendment was written to secure the equal citizenship of African Americans, yet its words go beyond that specific objective and extend "equal protection of the laws" to all "person[s]."