Professor William P. Marshall

  • May 1, 2012

    by John Schachter

    Jonah Goldberg’s online tongue-in-cheek, ironic, satirical humor column on The Washington Post website this past weekend suffers from one major flaw: it’s apparently not intended to be tongue-in-cheek, ironic, satirical or humorous. Oh, well.

    Goldberg tackles, as he puts it, the “top five clichés that liberals use to avoid real arguments.” We’ll get to that part of the column in a moment.

    But first Goldberg opens by criticizing “mainstream liberals from Franklin Roosevelt to Barack Obama -- and the intellectuals and journalists who love them” for claiming to be “dispassionate slaves to the facts; they are realists, pragmatists, empiricists.” Liberals, he claims, insist that “if only their Republican opponents weren’t so blinded by ideology and stupidity, then they could work with them.”

    Let’s take a look at the facts. (Yes, we know Goldberg and his ilk don’t like when – cliché alert! – facts get in the way of a good argument. Wasn’t it Sen. Jon Kyl’s (R-Ariz.) spokesman who, when challenged on a ridiculously inaccurate statement Kyl used in a floor speech, insisted that Kyl’s comments and statistics were “not intended to be a factual statement”? Should we at least give him credit for at least admitting this distaste for facts?)

    Despite ALL the evidence to the contrary, many Republicans continue to believe that President Obama was not born in the United States.Polling in March 2012 – nearly a year after the White House released the president’s long-form birth certificate, which should have ended, once and for all, the ridiculous “debate” – found that large percentages of Republicans in three key primary states still doubted the facts.

  • February 29, 2012

    by Jeremy Leaming

    According to at least some polling the Tea Party infused meme that the landmark health care reform law is constitutionally flawed because the law’s minimum coverage provision is a wild overreach of congressional power has had some success. But pollsters, thankfully, won’t determine whether the law stands or falls.

    The Supreme Court, which hears oral argument in the states’ challenge to the Affordable Care Act in late March, of course will have the ultimate say in his matter. And according to an array of constitutional law experts it’s a matter that shouldn’t be a difficult call.

    In a piece for the Federalist Society’s Harvard Journal of Law and Public Policy, UNC law professor and constitutional law expert William P. Marshall details why the ACA fits within the nation’s “constitutional culture,” as defined by the late Chief Justice William Rehnquist. (In Planned Parenthood v. Casey, Marshall writes, that for Rehnquist “constitutional culture is akin to the beliefs about constitutional meaning that are embedded in what he calls the ‘national psyche.’”)

    Opponents of the health care law say it goes against the nation’s commitment to “rugged individualism,” and against some conservatives' distrust of a strong central government.

    “But the individualist claim,” Marshall (pictured) writes, “runs up against a number of harsh realities that diminish its force." For starters, societal changes since the 1930s have worked to undermine the notion of a society held together by rugged individualists.

    Marshall, a former ACS Board member, notes, “The entry costs needed to succeed in this economy, for example, are far greater because of the shifts in the types of jobs that are available and because of the greater expectations placed on those joining the workforce. One reason for this is education. Succeeding in the current economy requires sophisticated training that cannot be mastered by the individual acting alone.”

  • July 11, 2011

    The Brookings Institution on July 18 will host a debate over competing visions between progressives on how to explain their understanding of the Constitution and constitutional interpretation.

    Distinguished University of Chicago Law School Professor Geoffrey R. Stone and Doug Kendall, founder and president of the Constitutional Accountability Center will debate their differing approaches, which they recently detailed in articles for Democracy: A Journal of Ideas.

    In their opening Democracy article, “The Framers’ Constitution,” Stone (pictured) and William Marshall, a former ACS Board member and a distinguished law professor at the University of North Carolina,  contend that the Constitution’s framers “understood that they were entrusting to the future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, ‘we must never forget it is a Constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.’” (During the 2011 ACS National Convention, Stone provided a speech exploring some of his thoughts on framing the debate over constitutional interpretation. Video of his speech is available here.)

    Kendall and Jim Ryan, a distinguished law professor at the University of Virginia School of Law, explain in their opening article, “The Case for New Textualism,” that progressives “are losing the fight over the courts and the Constitution because conservatives have maneuvered us into running from, rather than embracing, the text of and history of the Constitution.” The two say, “New textualists look carefully at history – both the enactment history of particular provisions and the broader historical events that produced the need for the text – to understand the meaning of the Constitution’s text.” Kendall and Ryan offer a response to the Stone and Marshall here.

    In their response to the new textulism argument, Stone and Marshall write that in contrast they believe “the better way for progressives to articulate a genuinely principled theory of constitutionalism and win an informed public debate is to embrace the jurisprudence of John Marshall rather than the methodology of Antonin Scalia. We believe that our understanding of the Framers’ Constitution presents a more honest account of how constitutional interpretation operates in the real world, and is truer to the Framers’ understanding than a mechanical invocation of either originalism or textualism.”

    The Brookings Institution debate will be moderated by Senior Fellows E.J. Dionne Jr. and Benjamin Wittes. Visit here for more information, including registration, about the debate.  

  • June 15, 2011

    More than at any time in recent memory a public debate on the meaning of the Constitution and how to interpret it has been engaged by many, attracting some significant attention from news media that are more readily drawn to far less weighty matters.

    Tea Party activists have played a fairly large, if not misguided, role in heightening this discussion, but progressives have heartily joined the debate with a largely unified voice. There is, however, a vigorous discussion among progressives on how best to explain their understanding of the Constitution and constitutional interpretation.

    These competing visions over messaging of progressives’ vision of the Constitution and constitutional interpretation can be found in Democracy: A Journal of Ideas. The Democracy editors describe the parameters of the discussion here.

    Distinguished law school professors Geoffrey Stone, chair of the ACS Board, and William Marshall, a former ACS Board member, write in their article “The Framers’ Constitution,” that it is a time for an era of “principled constitutionalism,” in which constitutional interpretation is not seen as a “mechanical enterprise,” instead calling for judges to “exercise judgment.” To enter this era, the professors note that the right-wing method of interpreting the constitution, known as “originalism,” must be exposed as a flawed method, one that advances right-wing political concerns and has effectively convinced lots of people that interpreting the Constitution is as simple as staring for long periods of time at the text of the document.

    Doug Kendall, of the Constitutional Accountability Center, and University of Virginia law professor Jim Ryan, offer “new textualism,” as the progressives’ answer.   

    Stone (pictured), a law professor at the University of Chicago, and Marshall, a law professor at the University of North Carolina, write that the Framers of the Constitution created a founding charter “to endure,” by establishing “foundational principles that would sustain and guide the new nation into an uncertain future.”

    Stone and Marshall write:

    The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: “freedom of speech,” “due process of law,” “free exercise” of religion, “equal protection of the laws,” “cruel and unusual punishment.” The Constitution sets forth governmental powers in similarly general terms: Congress may regulate “commerce…among the several states,” the president will “take care that the laws be faithfully executed,” the courts are authorized to decide “cases” and “controversies.”

    Stone and Marshall continue that the Framers “understood that they were entrusting to the future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, ‘we must never forget it is a Constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”

    The professors then elaborate on how a right-wing legal movement has tirelessly worked to  undermine the Framers’ vision of enduring foundational values by successfully pushing the theory of “originalism,” which “presumes that courts should exercise judicial restraint unless the ‘original meaning’ of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women the same right, because that not he ‘original meaning’ of the clause.”

    And Stone and Marshall detail how originalism is “fundamentally flawed.”   

    Kendall and Ryan argue in their article, “The Case for New Textualism,” that a theory akin to originalism should be promoted as the progressives’ answer. They also assert that right-wing activists have dominated the discourse on the Constitution and constitutional interpretation for far too long, causing progressives to run from the Constitution.

    But Stone and Marshall say it is not a matter of being pinned in, maneuvered or chased away from the debate over the Constitution.

    Instead, they say, progressives must bring reason to the debate, including providing a sharp rebuke of the right wing’s flawed understandings of the Constitution and how its foundational values should be applied. Interpreting the Constitution and applying its enduring values in today’s society is not as mechanical as the Right has declared. Judging, the professors write, is in no way similar to the work of baseball umpires.

    Stone and Marshall in this response write, “Kendall and Ryan argue that the best way for liberals to win the public debate about the judiciary is to claim that liberals adhere to a ‘textualist’ understanding of constitutional interpretation that is akin to the conservatives’ ‘originalist’ theory. Such an approach, they suggest, will appeal to the public because of its seeming clarity and neutrality. They add that the ‘new textualism,’ properly applied, will lead to liberal results.”

    They conclude that “the better way for progressives to articulate a genuinely principled theory of constitutionalism and win an informed public debate is to embrace the jurisprudence of John Marshall rather than the methodology of Antonin Scalia. We believe that our understanding of the Framers’ Constitution presents a more honest account of how constitutional interpretation operates in the real world, and is truer to the Framers’ understanding than a mechanical invocation of either originalism or textualism.”