Constitution Day 2017

How Should We Interpret the Constitution?

                                                                      

   

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?

 
Debates have been raging since the founding document’s inception about its meaning and scope, and different interpretive approaches have arisen in response to those debates. How should judges approach cases that don’t allow for straightforward application of technical provisions? What principles can they rely upon when interpreting the Constitution so that they remain faithful to the values it espouses and respectful of the judicial role in our constitutional order? How can we understand the Constitution’s commands in the face of challenges the Framers couldn’t have imagined? 
 
Reading:
 
 
 
 
Multimedia:
 
 
Interactive Constitution, National Constitution Center

What About Judicial "Activism"?

 
The term “judicial 'activism'” is often used inexactly to denigrate judicial opinions with which the speaker disagrees. Historically, it has been used to tar liberal judges as stepping outside the appropriate judicial role and second guessing decisions more properly left to the legislature, but a close examination reveals that in recent decades conservative judges have been more likely to fit the “activist” label. Indeed, in recent years conservative scholars have encouraged what they call “judicial engagement” – a more muscular review by the courts of legislative actions in the name of “limited government.”
 
Reading:
 
 
 
Multimedia:
 
 
The Roots of Judicial Activism by Kermit Roosevelt, National Public Radio 

 

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