Pamela Karlan

Several of the nation’s top constitutional experts engaged in a robust discussion on what the U.S. Constitution means and how to interpret it, during the opening plenary discussion at the American Constitution Society’s Tenth Anniversary National Convention.

ACS Board Chair Geoffrey R. Stone, a law professor at the University of Chicago, kicked off the discussion by offering a new way of framing constitutional interpretation, as articulated in a recent article in Democracy: A Journal of Ideas he coauthored with University of North Carolina law professor William Marshall, entitled “The Framers’ Constitution.”

In the article, Stone and Marshall lay out their vision for interpreting the Constitution as the Framers intended, recognizing that the Framers were “visionaries” and not “timid men” who would have viewed originalists’ vision that “any particular moment’s understanding of the meaning of the Constitution’s open-ended provisions should be locked into place” as wrongheaded.

“As men of the Enlightenment, [the Framers] believed that just as reason, observation and experience would enable us to gain greater understanding over time into questions of biology, physics, economics and human nature, so, too, would they enable us to learn more over time about the content and meaning of the broad principles they had enshrined in our Constitution,” Stone explained in his remarks.

In the long-running debate over the role of the judiciary, which inevitably includes talk of "judicial activism," Stanford Law School Professor Pamela S. Karlan (pictured) says argument should center on finding the right answers to constitutional questions "and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all."

Judicial activism has been tossed about for ages, and essentially is employed to deride court decisions with which one disagrees, Karlan, the Kenneth Harle Montgomery Professor of Public Interest Law at Stanford, writes in a piece for the Boston Review.

For example, conservatives have long tarred the Warren Court as activist. But many of the Court's decisions were not aimed at undercutting or invalidating acts of Congress. Instead, as Karlan writes, the Warren Court's opinions were directed at southern states' "adherence to Jim Crow; Connecticut's refusal to allow married couples to use contraceptives; Florida's refusal to provide lawyers to indigent defendants - that departed from a national consensus about constitutional guarantees of liberty and due process."

And Karlan contrasts the Warren Court's actions with the Roberts Court, "which has struck down more acts of Congress per year than any other Courts in our history. And the most trigger-happy justices have been conservatives."

Karlan continues:

The question is not whether federal judges should strike down popularly enacted policies, but when.

The consequences of bold judicial action can be awful. In Dred Scott, for example, the Court declared that black people could never be considered citizens and struck down Congress's ban on slavery north of the 36th parallel as an unconstitutional denial of slaveholders' property rights. This was one of the lowest points in the Court's history. That said, some of the Court's greatest triumphs involved bold intervention: ‘one person, one vote,' now a bedrock constitutional principle, was judicially imposed on the nation less than 50 years ago by a set of decisions rightly called the Reapportionment Revolution. And some of the Court's greatest mistakes came when it showed timidity. Consider the turn-of-the-century decisions in Plessy v. Ferguson and Giles v. Harris, in which the Court's passivity before, respectively, Louisiana's segregation ordinance and Alabama's disenfranchisement statute gave the green light to Jim Crow laws. To riff on Barry Goldwater, vigor in the protection of constitutional rights is no vice; restraint in the face of constitutional violations is no virtue.

Karlan is the co-author of Keeping Faith with the Constitution, which provides an accessible examination of methods for interpreting the nation's founding document. During the 2010 ACS National Convention, Karlan discussed the important role courts play in protecting and advancing constitutional values. Video of her comments is available here.