Originalism

This post, first published September 15, 2010, is part of the ACSblog Constitution Week Symposium. The author, Pamela Karlan, a law professor at Stanford Law School and co-director of the law school’s Supreme Court Clinic. The book she coauthored with Goodwin Liu and Christopher H. Schroeder, Keeping Faith with the Constitution, provides the framework for a new ACS webinar series, “What the Constitution Means and How to Interpret It.”

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.

by Nicole Flatow

In response to escalating political rhetoric by some conservatives about the U.S. Constitution, some of the country’s most esteemed scholars are “setting the record straight” during Constitution Week.

Yesterday, ACS released an Issue Brief by constitutional law professors Geoffrey Stone and Bill Marshall, rejecting the “conservative constitutional narrative” as “deeply unprincipled and patently wrong.”

And tomorrow, ACS will kick off a series of short and accessible webcasts about constitutional understanding and interpretation featuring Stone, Marshall and a number of other preeminent scholars. Each 30-minute session will mirror a chapter in the book first published by ACS, Keeping Faith with the Constitution, by Pamela Karlan, Goodwin Liu and Christopher H. Schroeder.

Karlan, a constitutional law professor at Stanford University and co-director of the law school’s Supreme Court Litigation Clinic, will lead the first discussion tomorrow, on the Constitution’s structure, history, and the fundamental values it contains. Other webcasts in the nine-part series will focus on equality, democracy, criminal justice and liberty.

Both lawyers/law students and non-lawyers are encouraged to participate and interact with questions, tweets and Facebook comments. Prof. Karlan will speak for the first 15 minutes, and take questions for the second 15 minutes. If you are on Twitter, please join ACS both during and after tomorrow’s session at the hashtag #ACSclass.

The first webcast is tomorrow at 3 p.m. eastern time. To see the full schedule and accompanying readings, visit the web page for “What the Constitution Means and How to Interpret It.” And read the ACS Issue Brief, The Framers’ Constitution: Toward a Theory of Principled Constitutionalism, here.