Prof. Kinkopf: The Challenges in Discourse on Constitutional Interpretation

In an article for the Washington University Law Review, Neil Kinkopf explores the ongoing challenge progressives face in articulating a method of constitutional interpretation in an era where the right-wing has successfully bandied “judicial activism” about in promotion of so-called “originalism.”

In a mock memorandum to President Obama, Kinkopf, a law professor at Georgia State University, and former counselor to the Assistant Attorney General for the Office of Legal Policy, argues why the administration would likely not expend political capital on a nominee to the Supreme Court who openly espouses a method of constitutional interpretation contrary to the prevailing method pushed by conservative jurists, academics and legal advocacy groups.

Kinkopf argues that “the conservative legal movement that has convinced the public that its method of interpretation is legitimate and that other methods are activist did not succeed overnight,” and that currently there is no “significant constituency that demands we seek to promote a progressive legal agenda.”

He continues that until such a constituency forms “demanding a progressive approach to constitutional issues,” it would be foolhardy for the administration to drift from its current strategy of not spending much political capital on particular nominees to the federal bench.

So at the moment, Kinkopf explains, the conservative legal movement has successfully “convinced the public that its method of interpretation is legitimate and that other methods are activist ….”

His mock memo to the president provides a strong argument on why progressives, including policymakers, should support and help advance progressive legal thinkers who have begun to formulate an answer to the proponents of “originalism.”

Kinkopf cites in his law review article the work of scholars such as Stanford law school professor Pamela Karlan, who co-authored the book Keeping Faith with the Constitution, which articulates troubling shortcomings with originalism and advances a progressive method of constitutional interpretation.