How to Interpret the Constitution? See Keeping Faith …

October 27, 2009
In light of recent debate over constitutional interpretation, and in particular Justice Antonin Scalia's defense of "originalism," a quick look at some of Keeping Faith with the Constitution is likely helpful.

Earlier this year ACS published Keeping Faith by Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder, which articulates a vision of the Constitution and an approach to interpretation that is faithful to the words of the document and at the same time has enabled it to retain its relevance for each new generation. The authors explain "constitutional fidelity," a principle that "serves not only to preserve the Constitution's meaning over time, but also to maintain its authority and legitimacy. The words and principles of the Constitution endure as our fundamental law because they have been made relevant to the conditions and challenges of each generation through an ongoing process of interpretation."

In chapter 3 of the book, "Equality," the authors conclude that originalism is incompatible, for instance, with the landmark Supreme Court ruling, Brown v. Board of Education, which invalidated segregated public schools. The authors wrote:

Why, then, has the correctness of Brown been the subject of so much handwringing in some legal circles? The short answer is that Brown is a difficult case under interpretive theories that disavow the relevance of contemporary social understandings to the application of the Constitution's general principles. To justify Brown, originalism must posit that the federal and state legislators who ratified the Fourteenth Amendment understood it to abolish segregated schools. Given the widespread practice of school segregation in the states and the paucity of evidence that the enacting Congress believed the Amendment would radically transform public schooling, it is no wonder that the unanimous Court in Brown found the original intent "[a]t best . . . inconclusive." Indeed, for over half a century, a scholarly consensus across the ideological spectrum has recognized that Brown cannot be explained on originalist grounds. Even the most ambitious and labored effort to reconcile Brown with originalism comes up short for reasons lucidly elaborated by one of the nation's leading civil rights historians.

For more Keeping Faith, see here