Constitutional Interpretation and Change

  • April 6, 2017
    Guest Post

    *This is the first piece in the ACSblog symposium: "The Future of the U.S. Constitution"

    by Dawn Johnsen, ACS Board of Advisors Member and Walter W. Foskett Professor of Law, Indiana University Maurer School of Law

    Over the next week, the ACSblog will feature posts from some of the nation’s leading constitutional law experts as they prepare to gather on Friday, April 14 at the Indiana University Maurer School of Law to examine “The Future of the U.S. Constitution.” ACS and the Indiana Law Journal (ILJ) join Maurer School of Law as co-sponsors for this symposium in Bloomington, Indiana, and a live stream will make the day available to all, at The symposium participants have been active in academia and public life, including in government, nonprofit advocacy and as members of the ACS Board of Academic Advisors. They will address the great constitutional challenges of our time: presidential power, judicial review, congressional dysfunction, political polarization and mobilization, economic inequality, plutocracy, immigration, race, religion, refugees, abortion, guns, voting, disenfranchisement, presidential conflicts of interest, anti-intellectualism, disdain for facts, discrimination, exclusion, nativism and justice. A special ILJ symposium issue is forthcoming in September 2017, with essays from participants and several others. In the meantime, we hope you will enjoy this special ACSblog series on “The Future of the U.S. Constitution.”

  • March 23, 2017
    Guest Post

    *This blog post was originally testimony before the Committee on the Judiciary of the United States Senate, Hearings on the Nomination of Judge Neil Gorsuch to the Supreme Court of the United States on March 23, 2017.

    by William P. Marshall, Kenan Professor of Law, the University of North Carolina, Chapel Hill

    The Air Force is unconstitutional. Brown v. Board of Education, 348 U.S. 886 (1954), was incorrectly decided. The Equal Protection Clause does not apply to women. The First Amendment does not protect speech on the internet or prevent persons from being forced to salute the flag when it conflicts with their conscientious or religious principles. The Constitution does not require one person/one vote. There is no freedom from government intrusion into such deeply personal decisions as to whether or not to have a child. There is no right to direct the raising and educating of one’s own children. The Fifth Amendment does not require the police to inform persons charged with crimes that they have a right to counsel. The federal government may discriminate on the basis of race and ethnicity without constitutional constraint.

    These are just some of the results to which a strict adherence to “originalism” would lead. The vacancy created by the death of Justice Antonin Scalia, the Court’s most prominent proponent of organism, and the subsequent nomination of Judge Neil Gorsuch to fill that position, has once again brought the theory of “originalism” into the spotlight. It is therefore appropriate to reexamine the validity and legitimacy of originalism as a governing mode of constitutional interpretation. I will address that issue in the remarks that follow.

  • March 22, 2017
    Guest Post

    by Neil Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law

    In the summer of 2011, Justice Scalia taught a separation of powers course in Duke Law School’s summer program in Geneva. I was honored to serve as his assistant, which meant that I answered his questions in class and—more importantly from his perspective—wrote and graded his exam.

    On the last day of class, Justice Scalia gave what Court watchers have come to regard as his originalism “stump speech,” in which he essentially argued that one is either an originalist on matters of constitutional interpretation or else one is making it up. When he was done, he asked for critical responses from anyone in the class, including law professors. (He was exemplary about hearing other points of view and generous in many other ways.) Because he was looking right at me when he asked for pushback, I raised my hand.

    I had a feeling that he was expecting me to criticize originalism as descriptively inaccurate and/or normatively unattractive. I declined the opportunity. Instead, I decided to (gently) criticize him in the form of a compliment. I told him and the class that he was way too sensible to be just an originalist. Rather, I suggested (using plentiful examples) that he was indeed an originalist some of the time, but that he was also a traditionalist, and a structuralist, and a doctrinalist, and—because he had to decide when to be what—a prudentialist. In short, I implied that he was a living constitutionalist.

    When I was done speaking, Justice Scalia paused, thought for a moment, and responded that maybe he needed a new word for what he was. I replied, “How about a judge?”  (I dared not say “living constitutionalist.”) He laughed, paused again, and returned to his stump speech.

  • March 21, 2017
    Guest Post

    *This piece originally appeared on Medium

    by Todd A. Cox, Director of Policy, NAACP Legal Defense Fund

    Today, as the Judiciary Committee begins in earnest its questioning of Judge Neil Gorsuch about his nomination to the Supreme Court of the United States, the senators are sure to raise a range of very important constitutional and philosophic questions. But with limited time available and so many issues to discuss, LDF has identified the three key questions senators should ask about Judge Gorsuch’s record on civil rights.

    1. Under your originalist approach to interpreting the Constitution, was Brown v. Board of Education rightly decidedand if so, how specifically?

    Potential follow-up questions:

    - Likewise, under an originalist interpretation of the Constitution, was Loving v. Virginia rightly decided — and if so how?

    - Is the history or original meaning of the 13th, 14th and 15th Amendments — or the Civil War Amendments — relevant to interpreting those provisions today? If so, which of the drafters or their statements would you consider in construing, for example, the 14th Amendment?

    - Brown was a unanimous decision in 1954, but just 68 years earlier, the Supreme Court upheld segregation in a 7–1 vote in Plessy v. Ferguson. What changed in terms of the original meaning (or intent) of the Constitution?

  • March 8, 2017
    Guest Post

    by Simon Lazarus, Senior Counsel to the Constitutional Accountability Center

    Wells Fargo’s bogus accounts mega-fraud enabled consumer champions to spotlight the permissive legal environment that led the bank’s top management to believe they could get away with it. In congressional hearings, Democrats in particular pressed Wells CEO John Stumpf on the bank’s use of mandatory arbitration clauses in their standard-form, non-negotiable contracts. Such clauses typically force consumers and employees to sign away their rights to challenge any form of company illegality in court, or to band together with other victims to seek class relief from small-bore, large-scale fraud like that perpetrated by Wells Fargo. After the Senate hearing, six Senate Democrats observed in a letter to Stumpf, that “There can be little doubt . . . that the ability to force customers into secret arbitration proceedings allowed Wells Fargo to continue its outrageous practices with impunity for far too long.”

    Now, with President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court, and Senate Judiciary Committee hearings set for March 20, a new opportunity looms to further bump up awareness of the real-world impact of the judiciary’s pro-industry tilt, and, especially, the role of the conservative bloc of high court justices in fostering that lax environment. In particular, senators can probe the pattern of Judge Gorsuch’s opinions favoring business litigants over individual consumers and workers that has led business legal advocates to read his record to “suggest that his confirmation would restore the pro-arbitration direction of the Court [before Justice Scalia’s death cost the conservatives their majority]).”