• September 17, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    In some of the most famous words ever written by the Supreme Court, Chief Justice John Marshall declared in McCulloch v. Maryland in 1819, we must “never forget that it is a constitution we are expounding. . . .  [A] constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” This is a clear expression of the need for a living Constitution, one whose meaning evolves by interpretation as well as by the very difficult process of amendment.

    This should not be controversial. The only way that the nation can be governed by a document written in 1787 for an agrarian slave society is for its intentionally broad, open-textured language to be given contemporary meanings. There is no clear “original understanding” of any constitutional provision and even if it could be identified, it should not be controlling today. The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. But that does not mean that Brown v. Board of Education was wrongly decided.

    This would be unremarkable except that Justice Scalia and other conservatives have argued for decades that the meaning of the Constitution is limited to its original understanding. This philosophy, “originalism,” says that a constitutional provision means the same thing today as when it was adopted and that this meaning can be changed only by constitutional amendment.

    Never has a majority of the Court embraced this restrictive approach. One of the most important aspects of the Court’s decision in June recognizing a constitutional right to marriage equality for gays and lesbians was it again explicitly rejected originalism.

    In Obergefell v. Hodges, the Court declared unconstitutional laws in Kentucky, Michigan, Ohio and Tennessee that prohibited same-sex marriage. Obviously, no one contends that the drafters of the Fourteenth Amendment meant to include a right to marriage equality for gays and lesbians within its protections of due process and equal protection. The majority of the Court was clear that this does not matter because the understanding of constitutional provisions evolves over time.

    Justice Kennedy, writing for the majority, observed that “[t]he identification and protection of fundamental rights . . . has not been reduced to any formula.” He explained why constitutional interpretation cannot be limited to understandings of the past: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.  If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.”

  • April 27, 2012
    Guest Post

    By Amanda Frost, Professor of Law, American University, Washington College of Law

    Opponents of the health care reform law argue that it takes away their liberty to make choices about health care.  In their brief to the Supreme Court, the twenty-six states challenging the constitutionality of the so-called individual mandate – the provision requiring those who can afford it to purchase health insurance – claim that it undermines “the very liberty that the Constitution was designed to protect.”  But in fact the legal questions before the Court have almost nothing to do with liberty when it comes to health care or health insurance, as the challengers’ own concessions make clear. 

    The states challenging the law do not deny that almost everyone needs health care at some point in their lives, and they even agree that the government can make people pay for health care through health insurance.  They take issue only as to when the government can compel that purchase, arguing that no one can be forced to buy insurance before they need to pay for health care.  The challengers also admit that the federal government could force everyone to pay higher taxes to cover the health care costs of those without insurance.  Nor do they deny that the federal government can require doctors to provide emergency care to those without health insurance, and then to allow those doctors to pass along the costs of that care to the rest of us through higher insurance premiums and taxes – indeed, that is how our system currently operates.  Finally, the challengers acknowledge that the states themselves could pass laws mandating that all their citizens purchase health insurance, as Massachusetts has done. 

    All that is really at stake, then, is whether the federal government has the constitutional authority to require individuals to purchase health insurance before they need to pay for their health care.   That “freedom” seems far from the heady liberty interest that opponents of the law claim this case is all about.