Thoughts for Constitution Day

September 17, 2013
Guest Post

by William P. Marshall. Marshall is the William Rand Kenan, Jr. Distinguished Professor of Law at UNC School of Law. Marshall is also an ACS Board member. This post is part of our 2013 Constitution Day symposium.

For years, conservative thought has consistently claimed that its approach to constitutional interpretation meant following the Law, whatever the result. Conservatives, according to this mantra, were well, conservative, in the non-political sense of the term. Liberal constitutionalism, in contrast, was nothing more than “activist” decision making in which liberal judges simply “legislated from the bench” in order to reach favorable results. 

Conservative thought in this respect was something of a moving target in that its description of improper judicial activism kept changing. At first, the term meant judicially overturning the actions of elected officials. Later, however, when that account of activism proved inconsistent with the conservative political agenda (think affirmative action or limits on the commerce power), the definition changed. Now, of course, after a brief but unsuccessful foray into attempting to define activism as decision making that veers from the Framers’ “original intent,” conservative thought asserts that activism means deviating from the Constitution’s “original understanding.”  As before, conservatives assert that they do not deviate from their principles no matter what results may follow. As before, conservatives consistently follow their principles, results notwithstanding -- except, or of course, when they don’t.  See e.g. Shelby County v. Holder; Citizens United v. FEC; Bush v. Gore; Adarand Construction Inc. v. Pena.

Remarkably, however, despite both its erraticism and its disingenuousness, the conservative myth persists. In fact the notions that modern constitutionalism has taken us away from the true meaning of the Constitution and that the country requires a return to originalist principles has provided the narrative for not just legal thought but also for a major political movement – the tea party. And even though it can be readily shown that the method of constitutional interpretation that the tea party decries dates back to Chief Justice John Marshall and the early years of the Republic, their answer, apparently is that John Marshall is simply a part of the problem.

Against this background, it is enlightening to take a close look at two new ACS issue briefs. The first by Geoffrey Stone, entitled “The Behavior of Supreme Court Justices When Their Behavior Counts the Most” examines twenty of the most important Supreme Court decisions since 2000 in an effort to determine which justices were the most “activist” in relation to their purported approach to constitutional interpretation. It turns out, that although both liberal and conservative justices were activist in the sense of overturning the decisions of elected officials, the conservatives were far more activist in deviating from their own principles in order to reach desired results. Thus, as Stone shows, the myth that conservatives follow the Law while liberals seek only results has it exactly backwards.

The second issue brief, “Revisiting Judicial Activism: The Right and Wrong Kinds,” authored by Alan Morrison, provides an excellent insight into when old school judicial activism (courts overturning the actions of elected officials) is justified. As Morrison argues, appropriate judicial activism occurs “when there is some reason to believe that our system of representative government has not worked and that the protections that the Constitution is supposed to afford are lacking.” Updating from a previous work, Morrison applies this definition to the major decisions of the Roberts Court concluding, in agreement with Justice Ruth Bader Ginsburg, that the Roberts Court is one of the most [improperly] “activist courts  in history.” He does not mean this as a compliment. 

As we celebrate Constitution Day, therefore, it may be time to share Stone’s and Morrison’s account of actual judicial activism with those who aspire to be constitutional purists. There is much for all of us to learn.