Issue #21, Summer 2011

First Principles: Debating the Constitution

To read the other essays in the “From the Ground Up: Fostering Entrepreneurship” symposium, click here.

Whenever there is a vacancy on the Supreme Court, the public gets a short refresher course on the judiciary and an introduction to the legal philosophies of the nominee and of the senators who must consent to the nomination. Then most Americans forget. What they forget particularly is that the Court and the Constitution are always vulnerable to the distorting power of ideology. And we have today a Court and a dominant political theory of the Constitution that treat the document as a tool for ideological action.

For a generation or more, the American right has controlled the terms of public debate over the Constitution. In concocting doctrines of “strict construction” and “original intent,” the legal-intellectual complex of contemporary conservatism has given the appearance of theoretical heft to potent political slogans like “don’t legislate from the bench” and “just call balls and strikes”—all in service of an ideological program to reverse the social and economic progress of the last 75 years and to protect the powerful from further infringements upon their power.

If the Constitution is the bible of America’s civic religion, then it is no exaggeration to brand today’s right constitutional creationists. These creationists take the word of the text literally and infallibly—though only when it suits them. They are not unaware that it’s impossible to be a creationist consistently and constantly. Even Justice Antonin Scalia, their patron saint, calls himself a “faint-hearted originalist,” and will at times join rulings at odds with his purported methodology (frequently, it seems, in cases where originalism produces answers he does not like). But the politicians among them are quite aware that it is the pose of certitude that makes their program appealing to so many lay Americans. It is perhaps what is most notable about the right’s approach to the Constitution: not the creationism per se but the fixity of the fundamentalist attitude that undergirds it.

But the Framers of our Constitution gave us something that they knew should not be set in amber—that could be amended over time. What were the original values that animated the document, and how can we remain faithful to them? That is the question Americans—progressives and conservatives alike—must learn to address like grown-ups.

For too long progressives have wrestled with the question only to come short of the answer. They have complained about the right’s step-by-step co-opting of the conversation about the Constitution, but they have not countered with their own narrative. One rebuttal to constitutional creationism is, of course, constitutional evolution: You have original DNA. Then life happens, and you must adapt and evolve. But some progressives have been reluctant to go in this direction, fearing, with justification, that talk of a living or evolving Constitution activates precisely those fears of relativism and judge-driven subjectivity that fuel the political success of “strict construction.”

In the following exchange, the third installment of our “First Principles” series, we explore that disagreement. How should progressives frame and develop their counterarguments against the conservative theories that have proven so persuasive? Geoffrey R. Stone of the University of Chicago Law School and William P. Marshall of the University of North Carolina School of Law find the answer in what they call “The Framers’ Constitution”: the idea that the principles set forth in the Constitution do not change, but that interpretation must evolve over time.

Doug Kendall of the Constitutional Accountability Center and Jim Ryan of the University of Virginia School of Law embrace the “new textualism” theory advanced by thinkers such as Yale’s Akhil Amar. They argue that progressive values are inherent in the Constitution and the amendments that have followed, and that liberals should always base their constitutional arguments on text.

It’s a debate that has been playing out lately and with intensity in progressive jurisprudential circles, and we are delighted to have the opportunity to bring it to the wider community. We have few tasks more important than rebutting the conservative line on the law. The provocative dialogue in these pages will help us do that more effectively.

First Principles: Debating the Constitution

The Framers’ Constitution by Geoffrey R. Stone & William P. Marshall

The Case for New Textualism by Doug Kendall & Jim Ryan

Stone & Marshall respond

Kendall & Ryan respond



Issue #21, Summer 2011
Post a Comment

john wright:

the best argument against originalism as well as the idea that the founders thought the constitution would endure forever can be found in Richard Beeman's book,PLAIN HONEST MEN(2009),a day by day account of how the constitution was constructed. At the heart of it is what we would call political horse trading that produced a political document for its time but which is now endowed by originalists with sacerdotal immutability. Even the utter failure of the document to prevent the tragedy of the Civil War does not seem to bother them so we continue to argue about the Constitution in the same way fundamentalists argue for the literal meaning of the Bible.

John Wright

Jun 14, 2011, 9:13 AM
Melvyn Dubofsky:

Whose Constitution are we are fighting about, Hamilton's, Madison's, Marhsall's? The original text was a joint creation of theirs and other participants at the Constitutional Convention. Yet, seldom, if ever, did the original drafters agree about what the text meant in practice. The original Constitution a "progressive" document--in what sense? The drafters were republicans (small r) who feared majorities and preferred government by the enlightened and respectable. The Constitution became progressive over time as a result of subsequent amendments, the steady widening of the franchise, and political struggle. Contemporaneously, conservatives have won the judicial wars not because their interpretation of Constitutional jurisprudence (originalism or whatever you want to call it) is superior and easier to sell to the "masses" but because their results are satisfying to large blocs of voters. The New Deal legal revolution happened not because "legal realism" conquered popular opinion and converted voters but because its instrumental impact delivered what the then dominant Democratic majority demanded. Neither progressive nor conservative jurists can render rulings that substantial majorities refuse to honor or obey. As Hamilton observed in response to critics of judicial review during the struggle over ratification of the new constitution, the judiciary remained the weakest branch of government because it lacked both the power of the purse and the sword. Instead of fighting to honor the original meaning of the Constitution (something about which its drafters could not agree after it was ratified) or to render a progessive reading/intepretation of the text, as Kendall and Ryan seem to prefer, we should explain why health reform legislation, equal rights for all citizens regardless of sexual preferences, or the abolition of capital punishment are just and needed and in no way conflict with a constitution drafted more than two centuries ago in an exceedingly different milieu and culture.

Jun 16, 2011, 4:46 PM
Charles Lemos:

Stanford historian Jack Rakove's Pulitzer Prize winning "Original Meanings: Politics and Ideas in the Making of the Constitution" is another volume worth reading on this topic. Indeed, his first chapter is titled "The Perils of Originalism."

Rakove has two main objections to originalism. First, it is anti-democratic to "subordinate the judgment of present generations to the wisdom of their distant (political) ancestors." Second, there are real problems in reconstructing the coherent intentions of the Founders, who in themselves were a diverse body of men, from the historical record. What Elbridge Gerry believed was a far cry from Alexander Hamilton believed. Moreover, neither's vision actually formed the bulwark Constitution. It was a document forged by compromise. It was also a document shaped by the turmoil of the 1780s and when the idea of American nationality was still being formed. It wasn't until after the Civil War that we began to say the United States IS. Before, Americans, north, south and west, said the United States ARE. This is a transformation that the Constitution does not yet fully reflect.

I also object to the view that somehow 1789 was the definitive point in our Constitutional arrangements and that we should be forever tied to those arrangements.

To take one example, the US Constitution served as a model for various Latin American constitutions in the 1820s and 1830s. Well, they copied for example the disenfranchisement of the citizens who happened to to reside in the Federal capital. But within a decade, they realized that was anti-democratic and began changing said provisions. We, on the other hand, still deny Washingtonians voting representation in the Congress.

Jul 3, 2011, 10:14 PM

It is always ironic to me that an attempt to fight originalism begins with an appeal to historical accounts of the creation of the document.

I think we can defend the foundational principles in the Constitution using no appeal to the historic meaning of words or by examining the opinions of the men who wrote them.

To wit:

Foundational Values: A More Perfect Union

Jul 21, 2011, 7:17 PM

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