Originalism

  • September 21, 2011

    by Jeremy Leaming

    To honor Constitution Day, Supreme Court Justice Antonin Scalia took to a podium at the American Enterprise Institute to heap plaudits on the renowned political science professor Walter Berns and knock so-called “living constitutionalists,” as advancing an inconsistent and wobbly method of constitutional interpretation.

    “I can think of no more fitting way to mark this event then [with] a lecture series in honor of my good friend Walter,” Scalia said Sept. 20 at AEI’s “Walter Berns and the Constitution: A Celebration of Constitution.”

    Saying Berns is likely best known for his 1987 book, Taking the Constitution Seriously, Scalia said he would take a bit of time to “discuss a particular way of taking the Constitution seriously, mainly taking the Constitution seriously as law.”

    But before doing so, Scalia noted a period of time when a group of jurists allegedly failed to take the Constitution seriously.

    “Since about the era of the Warren Court, American jurisprudence has been dominated by a different view of the Constitution – this view treats the document not as a legal text, with a fixed meaning, ascertainable through the ordinary tools of legal interpretation, but rather as a collection of indeterminate, aspirational provisions; a living document that serves as sort of a jumping off point for the creation of rights thought to be necessary in the current day and age,” he said.  

    Scalia said a case decided during the Supreme Court’s last term, NASA v. Nelson, offered a fine example of our “legal culture” losing sight of the Constitution’s “fundamentally legal nature.” The respondents in the case, Scalia, continued argued that the federal government had violated their constitutional rights by requiring them to undergo background checks. But the respondents’ brief, according to Scalia, did not “once identify the provision of the Constitution the government was alleged to have violated.”

    In “true” living constitutionalist style, Scalia charged that the respondents must have assumed the high court would view the right to informational privacy “to be a good thing, and like so many other good things, it would be read into the Constitution, never mind the text. The majority opinion, I’m happy to say, did not accept that invitation, but I’m not happy to say, it did not close the door to such claims either. My own view, that there is simply no constitutional right to informational privacy did not carry the day.”

    Too often, Scalia continued, the Supreme Court has gone the other way by ignoring the Constitution’s text in an effort to reach desirable outcomes.

    An example he said was Lawrence v. Texas, where the Supreme Court in a majority opinion led by Justice Anthony Kennedy, overturned a Texas law criminalizing sodomy.

    “Should there be a right to consensual sodomy?” Scalia asked. “The majority of my court thought so. And so in a case called Lawrence v. Texas, such a right was read into the Fourteenth Amendment’s due process clause, which as a guarantee of procedural fairness is textually incapable of containing such a substantive right.

  • September 19, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. The author, Jamie Raskin, is a law professor at American University’s Washington College of Law, and a Lecturer at Yale Law School and a Maryland State Senator.  He co-founded the Marshall-Brennan Constitutional Literacy Project in 1999 with Professor Steve Wermiel. A Senior Fellow at People for the American Way, Professor Raskin is the author of We the Students: Supreme Court Cases for and About America’s Students.  He can be reached at Raskin@wcl.american.edu.


    If we don’t expect all romantic love to take place on Valentine’s Day or all gratitude to be expressed on Thanksgiving, why do we expect all public constitutional learning to take place on Constitution Day?   Surely no single day can bear the weight of this important endeavor.

    Tea Party activists have shown that constitutional advocacy throughout the year will be heard. The problem with their work is that the public cannot disentangle their constitutional claims from their political agenda. The Tea Partiers’ doctrinaire teachings about the Constitution only work for people who already agree with their politics.

    America needs a continuing program of non-partisan education about the nature of the Constitution and Bill of Rights. The American Constitution Society keeps lawyers and law students engaged through a program called Constitution in the Classroom. Since 2006, ACS has activated its extensive national network of lawyers and law students to visit high school, middle school and elementary school students and teach them non-dogmatic and non-ideological lessons about the Constitution.

    But one of ACS’ key partners in this effort -- the Marshall-Brennan Constitutional Literacy Project -- takes the Constitution directly into America’s high schools on a daily basis throughout the school year, teaching a full-blown course in “constitutional literacy” to young people.

    Across the country, from Boston to Baton Rouge to the Bay area, hundreds of law students from 16 different law schools are sharing their passion for the Constitution with students the age of their young brothers and sisters. They wake up early and, with no pay and precious little recognition, spread out to teach thousands of high school students--not once a year, but two or three times every week--before going to classes of their own.

    These unsung constitutional champions--law students at eighteen different schools, from American University to Yale--are the Marshall-Brennan Fellows. Launched at AU’s Washington College of Law (WCL) in 1999 with the widows and families of the late Supreme Court Justices Thurgood Marshall and William Brennan, the Project is designed not to bewail our nation’s overly-documented civic illiteracy, but to engage young people about what it actually means to be a democratic citizen.  Rather than lamenting that more teens know the names of the Three Stooges or the Backstreet Boys than can name the rights contained in the First Amendment--a favorite Constitution Day pastime of pollsters and drive-by pundits, the Marshall-Brennan Fellows are doing something impressive about it.

  • September 16, 2011
    Video Interview

    This video interview is part of an ACSblog Constitution Week Symposium. By Nicole Flatow


    The role of U.S. courts as a “corrective for the dangers of majoritarian abuse” has been stymied by conservatives and originalists, University of Chicago Board Chair Geoffrey R. Stone explains in a video interview with ACSblog.

    “I think one of the real problems that we have had in the last 40 years in the United States is that conservatives have effectively taken control of the public discourse and the academic discourse about the proper role of courts and of constitutional interpretation,” says Stone, chair of the American Constitution Society Board of Directors.

    This is dangerous not just because originalism and judicial restraint are “wrongheaded” on their own terms, but also because conservatives are misleading people about what the courts are actually doing, he explains.

    “The public actually tends to believe that conservative judges and justices behave in a way that can be explained and justified in terms of judicial restraint and originalism when in fact, the actual jurisprudence of the existing majority on the Supreme Court and many Republican-appointed judges on the lower courts does in fact not fit,” he continues.

    This problem is the subject of a new ACS Issue Brief by Stone and University of North Carolina law professor Bill Marshall, The Framers' Constitution: Toward a Theory of Principled Constitutionalism, which discusses how progressives can reframe the discussion about the Constitution and the courts.

    The Framers’ Constitution … is designed to illustrate why [originalism and judicial restraint] are deeply flawed, and why they don’t in fact put forth a coherent or persuasive theory of constitutional interpretation,” Stone explains.

    Watch the interview below.

  • September 15, 2011
    BookTalk
    Keeping Faith with the Constitution
    By: 
    Goodwin Liu, Pamela S. Karlan & Christopher H. Schroeder

    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.

  • September 15, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. By Doug Kendall, President, and Judith Schaeffer, Vice President, Constitutional Accountability Center  


    As ACS members know, our Constitution is under attack from tea partiers and other self-professed “constitutional conservatives” who have claimed the document as their own and distorted it to support their ideological agenda. Over the past two years, they have made increasingly extreme, and in some cases absurd, claims about our Nation’s charter. They started with calls to repeal a number of Amendments, including the part of the 14th Amendment that protects citizenship at birth. They progressed to claims that Social Security, Medicare, and portions of the Affordable Care Act are unconstitutional. It’s gotten to the point where it seems that many in the tea party believe the entire 20th Century was unconstitutional. Talk about a bridge to the 21st Century!  The tea party movement seems to want to build a bridge back to the colonial era and the Articles of Confederation.

    There is no greater threat to progressive values than this effort to make progress itself unconstitutional. This week, Constitutional Accountability Center and our partner organizations, including the Center for American Progress and People For the American Way Foundation, launched a coordinated effort  -- Constitutional Progressives -- to take our Constitution back and rebut the constitutional fairy tales being peddled by tea party leaders. Our greatest assets in doing so are the text and history of the Constitution itself.

    Constitutional Progressives celebratethe Framers for creating the best and most durable form of government in world history, but believe the Constitution today is better than the document ratified in 1789.  Generations of Americans have made our country and our Constitution “more perfect” by ratifying Amendments that have eliminated slavery, protected liberty and equality, expanded the powers of the federal government, and secured voting rights for every adult citizen in America.   

    This story of constitutional improvement should inspire all Americans, and we’re asking people across the political spectrum to join Constitutional Progressives by signing the “Whole Constitution Pledge” --  a pledge to support the entire Constitution, including the Amendments adopted over the last 220 years. The Pledge can be signed on line, here. More than 15,000 people across the country have already signed. We’ve made a similar call to all Members of Congress, urging them on Constitution Day to reaffirm their constitutional oath of office -- their pledge to support the whole Constitution, not just the parts they like or find ideologically convenient.