Taking Back the Framers’ Constitution

September 12, 2011
Guest Post

This post is part of an ACSblog Constitution Week Symposium. The author, Geoffrey R. Stone, is a constitutional law professor at the University of Chicago, and chair of the American Constitution Society’s Board of Directors. Stone is the coauthor with the University of North Carolina law professor Bill Marshall of a new ACS Issue Brief, The Framers’ Constitution: Toward a Theory of Principled Constitutionalism.

In a recent column looking forward to the 2012 presidential election, conservative legal blogger Ed Whelan argued that “the battle over the proper role of the Supreme Court is a political winner for conservatives.” Conservatives, he maintained, have “succeeded in defining the debate [over judges]: a judge is either a judicial activist or a conservative.’”

The sad truth is that Whelan’s analysis is largely correct. Conservatives have, indeed, persuaded the American people that (1) judicial activism is illegitimate, (2) judicial restraint and “originalism” are the proper approaches for American judges, and (3) conservative judges adhere to the principles of judicial restraint and originalism and are faithful to the “umpire analogy.”

Each of these propositions is false – and dangerous to the American constitutional system. It is the responsibility of the American Constitution Society to make the case for why this is so. This is, most fundamentally, why ACS was founded – to articulate, explain and defend a principled approach to constitutional interpretation that is true to the vision of the Framers and their understanding of both the Constitution and the distinctive and essential role of courts in the interpretation and enforcement of the Constitution.

To meet this challenge, ACS must demonstrate that (1) there are circumstances in which judicial activism in both necessary and appropriate, (2) the methodologies of judicial restraint and originalism are deeply flawed both in conception and execution, and (3) the conservative justices of the Supreme Court are not in any way faithful to judicial restraint, originalism, or the analogy to “calling balls and strikes,” but in fact are opportunistically and often hypocritically activist when that approach suits their ends.

In a new ACS Issue Brief, The Framers’ Constitution, fellow constitutional law professor Bill Marshall and I attempt in a brief and accessible format to lay the foundation for each of these three propositions. The essay is intended to stimulate debate, invite questions, and hopefully point us in the right direction. The ultimate goal is to take a principled liberal understanding of constitutional interpretation not only to law students, lawyers, law professors, and judges, but to the American public more generally.

As an essential part of our effort to generate informed and intelligent discussion and deliberation on these questions, ACS is inaugurating an exciting new web-based series for ACS members called What the Constitution Means & How to Interpret It.  Each week from mid-September through mid-November, ACS will feature a nationally-prominent guest lecturer who will present via webinar a lesson based on a chapter from the ACS publication, Keeping Faith with the Constitution, by Goodwin Liu, Pamela Karlan and Christopher Schroeder. Keeping Faith is an engaging and accessible overview of our nation’s founding document and in-depth exploration of how generations of Americans have kept faith with its text and principles. We hope you will read and discuss The Framers’ Constitution with your friends and colleagues and that you will participate in What the Constitution Means.