For decades, conservative judges, scholars, lawyers, and activists have trumpeted a cramped, frozen-in-time understanding of the Framers’ grand undertaking, suggesting that the Constitution should be interpreted like a code of rules to be applied to whatever controversies arise. That may work in easy cases, but not in the hard ones – the kind that make their way to the Supreme Court and impact the lives of everyday Americans. After all, as the first Chief Justice John Marshall wrote in McCulloch v. Maryland, a constitution’s nature “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. … [W]e must never forget that it is a Constitution we are expounding.”
While the question of how we interpret the Constitution is always of supreme importance, the election of President Trump has elevated new constitutional questions never before fully contemplated. It has forced us to explore the meanings of little known constitutional provisions like the Emoluments Clause, and reinvigorated discussion of the contours of the First Amendment when it comes to hate speech or how our First and Second Amendment rights interact when citizens’ wish to exercise their right to assemble while carrying weapons.
How Should We Interpret the Constitution?
What About Judicial “Activism”?
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