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Keeping Faith with the Constitution KEEPING FAITH WITH THE CONSTITUTION GOODWIN LIU PAMELA S. KARLAN CHRISTOPHER H. SCHROEDER KEEPING FAITH WITH THE CONSTITUTION GOODWIN LIU PAMELA S. KARLAN CHRISTOPHER H. SCHROEDER Copyright © 2009 by the American Constitution Society for Law and Policy Published by the American Constitution Society for Law and Policy 1333 H Street N.W., Washington, D.C. 20005 www.acslaw.org All rights reserved. Publisher’s Cataloging-in-Publication (Provided by Quality Books, Inc.) Liu, Goodwin. Keeping faith with the constitution / Goodwin Liu, Pamela S. Karlan, Christopher H. Schroeder. p. cm. Library of Congress Control Number 2009924831 ISBN-13: 978-0-9823839-0-2 ISBN-10: 0-9823839-0-8 1. Constitutional law—United States. 2. United States. Constitution. 3. Law—United States— Interpretation and construction. 4. Constitutional history—United States. I. Karlan, Pamela S. II. Schroeder, Christopher H. III. Title. KF4550.L58 2009 342.7302 QBI09-600044 Printed in the United States of America ACKNOWLEDGMENTS In writing this book, we have benefited from the guidance and wisdom of many people. For insightful comments on earlier drafts, we thank Jack Balkin, Rebecca Brown, Robert Gordon, Pam Harris, Doug Kendall, Bill Marshall, Martha Minow, John Payton, Andy Pincus, Robert Post, Ted Shaw, Paul Smith, Geoffrey Stone, and David Strauss. We are also grateful for the help of several law students: Nicole Ries, who provided superb research assistance and editing; Meredith Dearborn, who sharpened the text with careful edit- ing; and Kathleen Lu, who helped develop the book design. Moreover, we could not have completed this project without the steady encouragement of the American Constitution Society, especially Judy Appelbaum, David Lyle, Meera Trehan, and Alex Wohl. More broadly, we are indebted to the many scholars, past and present, whose ideas have shaped the debate over constitutional interpretation for de- cades. Our work builds on intellectual foundations laid by many friends and colleagues whom we respect and admire. Finally, we are all indebted to the many citizens, elected officials, and judges who have worked throughout our history to ensure that we keep faith with the Constitution. Without them, this book quite literally could not have been written. The views expressed in this book and any errors are of course our own. Goodwin Liu Pamela S. Karlan Christopher H. Schroeder April 2009 Contents Introduction ............................................................................................. 1 chapt E R on E The Constitution’s Vision and Values ....................................................... 7 chapt E R two Judicial Interpretation of the Constitution ............................................. 23 chapt E R thr EE Equality ................................................................................................ 47 chapt E R four Promoting the General Welfare ............................................................. 65 chapt E R fiv E Separation of Powers ............................................................................. 73 chapt E R si X Democracy ........................................................................................... 83 chapt E R S E V E N Criminal Justice .................................................................................... 91 chapt E R E ight Liberty ................................................................................................. 97 chapt E R nin E Progress and Possibilities ......................................................................109 The Constitution of the United States ....................................................113 Notes ...................................................................................................139 About the Authors ................................................................................163 INTRODUCTION Justice Oliver Wendell Holmes was right when he said that the words of the Con- stitution “have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a cen- tury and has cost their successors much sweat and blood to prove that they created a nation.”1 The reason the United States Constitution is the world’s most enduring writ- ten constitution is not simply the genius of fifty-five men who met in Philadel- phia in 1787. Rather, it is the way that generation after generation of Americans has made the Constitution ours. The Constitution endures because its meaning and application have been shaped by an ongoing process of interpretation. That process includes both judicial interpretation and transformations in constitutional understanding pressed by political leaders and ordinary citizens throughout our history. Our Constitution retains its vitality because it has proven adaptable to the changing conditions and evolving norms of our society. Its words and principles still resonate centuries after they were written because time and again, as Justice Holmes urged, we have interpreted the Constitution in light of “what this country has become.”2 Americans of all backgrounds can wholeheartedly take an oath to support and defend the Constitution when they are naturalized, join the armed forces, gain admission to the bar, or are sworn into elective office not because of how our founding text was understood in 1789, or even in 1870, but because of how we understand it today. In recent decades, this common-sense understanding of the Constitution has been eclipsed by alternative conceptions of our founding document and the proper way to interpret it. Originalism—an exclusive reliance on public understandings of the text at the time it was ratified—has been vigorously championed by judges such as Antonin Scalia, Clarence Thomas, and Robert Bork, and by prominent conservatives such as Edwin Meese, who as Attorney General issued litigation 2 Keeping Faith with the Constitution guidelines directing government attorneys to “advance constitutional argu- ments based only on [the document’s] ‘original meaning.’ ”3 In addition to (and allied with) calls for originalism, a familiar refrain among conservative politicians is their promise to appoint only “strict constructionists” to the bench. Although the meaning of strict construction is far from clear, popular invocations of the term, like appeals to originalism, have served as a powerful polemic in opposition to evolving understandings of individual liberty, equal protection, federalism, and other constitutional concepts. Whether applied with rigor or intoned as rhetoric, originalism and strict construction have also served to legitimize conservative dominance of the federal judiciary for more than three decades. In this book, we describe and defend an approach to constitutional inter- pretation that is richer than originalism or strict construction, more consistent with the history of our constitutional practice, and more persuasive in ex- plaining why the Constitution remains authoritative over two hundred years after the nation’s founding. Interpreting the Constitution, we argue, requires adaptation of its broad principles to the conditions and challenges faced by successive generations. The question that properly guides interpretation is not how the Constitution would have been applied at the Founding, but rather how it should be applied today in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society. We use the term constitutional fidelity to describe this approach. To be faith- ful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution’s meaning and democratic legitimacy over time. Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitu- tion, the lessons of precedent and historical experience, the practical conse- quences of legal rules, and the evolving norms and traditions of our society. A dynamic process of interpretation informed by these considerations is what enables the American people to keep faith with the Constitution from one generation to the next. In elaborating this approach, we start from the premise that constitutional interpretation must be faithful to the character of the document itself. Three features are particularly important. First, the Constitution is “the basic char- ter of our society, setting out in spare but meaningful terms the principles Introduction 3 of government.”4 Although some of its provisions establish clear and precise rules—for example, the age of eligibility to serve as a member of Congress or as President5—the Constitution, for the most part, does not “partake of the prolixity of a legal code.”6 As Chief Justice Marshall observed, the nature of a constitution “requires that only its great outlines should be marked [and] its important objects designated,” and the language of the U.S. Constitution makes clear that “this idea was entertained by [its] framers.”7 Our Constitu- tion was not intended to supply a ready answer for every problem or every question that might arise. The Framers memorialized our basic principles of government with broad language whose application to future cases and con- troversies would be determined not by a mechanical formula but by an on- going process
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