It is a Constitution We Are Embracing

Keeping Faith with the Constitution
Goodwin Liu, Pamela S. Karlan & Christopher H. Schroeder
September 15, 2011

This post, first published September 15, 2010, is part of the ACSblog Constitution Week Symposium. The author, Pamela Karlan, a law professor at Stanford Law School and co-director of the law school’s Supreme Court Clinic. The book she coauthored with Goodwin Liu and Christopher H. Schroeder, Keeping Faith with the Constitution, provides the framework for a new ACS webinar series, “What the Constitution Means and How to Interpret It.”

Keeping Faith with the Constitution wades into a long-running debate about how we should interpret our Constitution. This debate is an important part of public policy discussions on everything from judicial nominations to health care reform. For a long time, conservatives have framed this debate by portraying themselves as strict adherents to the text and original understanding of the Constitution, while claiming that liberals and progressives ignore the text and decide cases based on their own values or policy preferences.

That characterization is, of course, a caricature. In our book, we approach the topic through a different set of questions: How have judges, elected officials and citizens actually gone about the process of constitutional interpretation? What explains the enduring character of our Constitution in light of the profound economic, social and political changes that our nation has gone through? And how does this 220-year-old document retain its legitimacy, authority and relevance over time? Simply put, our thesis is that the Constitution has endured because judges, elected officials and citizens throughout our history have engaged in an ongoing process of interpretation. That interpretation reflects fidelity to our written Constitution. 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 us to ask not how its text and principles would have been applied in 1789 or 1868, but rather how they should be applied today in light of the conditions and concerns of our society.

This view of constitutional interpretation is commonsensical and flows from several features of the Constitution itself. First, many parts of the Constitution are phrased in broad terms that encompass more than the specific applications the Framers had in mind. For example, the Fourteenth Amendment was written to secure the equal citizenship of African Americans, yet its words go beyond that specific objective and extend "equal protection of the laws" to all "person[s]."

Second, our Constitution is, as Franklin Roosevelt said, "a layman's document, not a lawyer's contract." It's a document that belongs to ordinary Americans and their representatives as much as it belongs to lawyers and judges. So it shouldn't be surprising or illegitimate that judicial interpretation of the Constitution has been informed not only by text, original understandings and precedent, but also by social understandings and popular movements throughout our history.

Third, the Constitution is a practical document. It is not simply a statement of aspirations or abstract principle. It is a document intended to govern our society and to operationalize our commitments to liberty, equality and democracy. So when we interpret the Constitution, our goal should be, as Justice Breyer has put it, to fulfill its promises "not as a matter of fine words on paper" but "in terms of how we actually live."

These features of the Constitution make clear why philosophies such as "originalism" and "strict construction" don't make sense. Strict construction seems to say that judges should stick to the text or read the text narrowly. But the text can only get you so far because so many of the vital phrases of the Constitution -"equal protection of the laws," "due process of law," "unreasonable search and seizure," "freedom of speech"- express broad commitments, rather than precise directives. The original meaning of such words in historical context is important. But if that were our ultimate guide, it would be impossible to explain why, for example, racial segregation or laws discriminating against women should be unconstitutional as we rightly understand them to be today. The fact is that the Framers deliberately chose broad language that would be adaptable to new challenges and new social understandings over time.

In a new chapter on the First Amendment, we trace the history of the freedom to express unpopular ideas, a principle that many today consider the essence of what it means to live in a free society. Yet this principle was anything but settled when the First Amendment was ratified. While some of the framers endorsed a sweeping scope for free expression rights, others defended punishment for seditious speech. As with many other critical portions of the Constitution, our current understanding of the First Amendment is a product of our national experience as well as the words first written two centuries ago.

Keeping Faith sets out in detail the meaning of the Constitution's text and principles, and how they have been applied faithfully over time. The book explains, in a way that originalism and strict construction can't, why Brown v. Board of Education is correct, why the minimum wage and workplace safety standards are constitutional, and why the right to privacy protects us not only against invasions of person or property but also against undue interference with our most intimate personal decisions. Those results can't be derived from looking at how the text was understood in 1791 or 1868, but they are vital to how we understand the Constitution today. For too long, liberals, progressives and moderates have been defensive about how the Constitution should be interpreted. But an examination of the document itself and the way its principles have been applied over time reveals that the progressive view is in fact the one that has prevailed. We wrote Keeping Faith with the Constitution for a wide audience: judges, lawyers, law students, journalists, people in the blogosphere and everyone who is concerned about the Constitution and what it means to our society. The book may be especially useful for elected officials, journalists and everyday citizens who are debating the qualities a judicial nominee should bring to the task of constitutional interpretation. For all people who believe in liberty, equality, democracy, access to justice and the rule of law, we hope this book will be a valuable resource.