Originalism

by Doug Kendall, founder and president, Constitutional Accountability Center. This piece is crossposted at CAC’s Text & History Blog.

One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi?  None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate.  As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).

by Jeremy Leaming

Out shilling yet another book, the right-wing Supreme Court Justice Antonin Scalia took yet another opportunity to repeat a line that is beyond tiresome. The U.S. Constitution is dead, Scalia said. Actually he said it was “dead, dead, dead.”

Scalia has long taken umbrage with folks who refer to the nation’s governing document as a living one. In his talk at Southern Methodist University, Scalia expressed exasperation with schoolchildren who visit the high court and refer to a living Constitution. “It’s not a living document,” Scalia said. “It’s dead, dead, dead.”

The justice has repeated this refrain too many times to count. (In fall 2011, he told a Senate committee that he hoped the “living constitution would die.”) So we understand that Scalia does not believe the Constitution provides liberty for women to make certain health care decisions, such as whether to have an abortion, or for marriage equality.

Scalia argues that if you interpret the Constitution as an originalist you cannot come to the conclusion that liberty is that broad. Proponents of originalism argue that the Constitution’s text must be interpreted in a way the text was understood by the people who created the document’s language.

Many others, however, have noted,  with increasing frequency that Scalia is an originalist only when it suits his ideology. Last year, UCLA law school professor Adam Winkler said “Scalia’s orginalism is a charade.”

There are other ways to talk about the Constitution’s genius, however, that do not readily play into Scalia’s narrative. For instance in Keeping Faith with the Constitution, Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder explain why constitutional interpretation should be “faithful to what the Constitution is: not a legal code, not a lawyer’s contract, but a basic charter of government whose practical meaning arises from the continual adaptation of its enduring text and principles to the conditions and challenges facing each generation.”

The authors continue:

Preserving the document’s meaning and its democratic legitimacy requires us to interpret it in light of the conditions and challenges faced by succeeding generations. We use the term constitutional fidelity to describe this approach. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires judges to ask not how its general principles would have applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of concerns, conditions, and evolving norms of society. As Jack Balkin has put it, ‘if each generation is to be faithful to the Constitution and adopt the Constitution’s text and principles as its own, it must take responsibility for interpreting the implementing the Constitution in its own era.’

The entire book is available here. It’s an accessible and short read and offers a strong counter to a tired refrain about a “dead” Constitution that is somehow relevant today.