IT IS A CONSTITUTION WE ARE EXPOUNDING Collected Writings on Interpreting Our Founding Document Foreword BY LAURENCE H. TRIBE IT IS A CONSTITUTION WE ARE EXPOUNDING Collected Writings on Interpreting Our Founding Document Foreword BY LAURENCE H. TRIBE Copyright © 2009 by American Constitution Society for Law and Policy All rights reserved. Permission to use individual selections should be obtained from the original publisher or copyright holder. See credits on pages 239–240. ACS is grateful for the assistance it received for this project from the law firm O’Melveny & Myers LLP, and in particular for the valuable time donated by O’Melveny & Myers attorneys Pamela Harris, Karl Thompson, and Brianne Gorod. The American Constitution Society for Law and Policy is a national nonprofit edu- cational organization with a rapidly growing membership of lawyers, law students, scholars, judges, policymakers and activists. 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ISBN 978-0-0923839-1-9 TABLE OF Contents Foreword ................................................................................................. 7 Introduction ......................................................................................... 10 Framework 1. from Laurence H. Tribe, American Constitutional Law, Chapter 1, “Approaches to Constitutional Analysis” ......................... 20 Text and Structure 2. from Lawrence Lessig, “Fidelity in Translation” ................................ 36 3. from McCulloch v. Maryland, 17 U.S. 316 (1819), opinion of Chief Justice Marshall ..................................................... 51 4. from Akhil Reed Amar, “Intratextualism” ......................................... 57 History 5. from Robert H. Bork, The Tempting of America: The Political Seduction of the Law, Chapter 7, “The Original Understanding” ......................................................... 74 6. from Richard A. Posner, “Bork and Beethoven” ................................ 85 7. from Jack M. Balkin, “Abortion and Original Meaning” ................. 100 8. from Mitchell N. Berman, “Originalism and its Discontents (Plus a Thought or Two About Abortion)” ......................................114 9. from Anthony G. Amsterdam, “Perspectives on the Fourth Amendment” ..................................... 122 10. from Suzanna Sherry, “The Founders’ Unwritten Constitution” .... 128 Values 11. Thurgood Marshall, “Reflections on the Bicentennial of the U.S. Constitution” .................................................................142 12. from William J. Brennan, Jr., “The Constitution of the United States: Contemporary Ratification” .....................................147 Precedent 13. from David Strauss, “Common Law Constitutional Interpretation” ......................................................... 158 14. from Lawrence v. Texas, 539 U.S. 558 (2003), opinion of Justice Kennedy ..............................................................172 Consequences 15. from Parents Involved in Community Schools v. Seattle School District No. 1, et al., 551 U.S. 701 (2007), dissenting opinion of Justice Breyer ..................................................178 Judging 16. from Alexander Hamilton, Federalist No. 78 .................................. 184 17. from Stephen Breyer, “Judicial Review: A Practicing Judge’s Perspective” .................................................... 187 18. from Ruth Bader Ginsburg, “Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication” .............. 195 Conclusion 19. from Geoffrey R. Stone, “The Roberts Court, Stare Decisis, and the Future of Constitutional Law” ............................................ 204 Appendix: The Constitution of the United States ........................... 215 Credits ............................................................................................... 239 Foreword Our Constitution is written in broad, even majestic language that was in- tended to endure through the ages. Although it of course includes a number of highly specific provisions dealing with the mechanics of government, for the most part it bears no resemblance to a detailed tax code or a zoning ordinance, or any other regulatory scheme meant to address, to the degree possible, every imaginable application, with the understanding that it is to be amended constantly as new circumstances arise. The framers conceived the Constitution of the United States as a basic charter, marking core prin- ciples and general outlines that would be elucidated over the years, enabling succeeding generations to meet the new and largely unforeseeable chal- lenges they would face. As Chief Justice Marshall famously wrote in 1819 in McCulloch v. Maryland, “we must never forget that it is a constitution we are expounding.” How, then, should we go about interpreting the Constitution’s great, undefined concepts like “freedom of speech,” “liberty,” “due process of law,” “equal protection,” “cruel and unusual punishment,” or “unreason- able searches and seizures”? Like most hard questions, this one has answers that are simple, superficially appealing—and wrong. One such answer is “strict constructionism,” an approach to constitutional interpretation that consists of narrowly parsing the text of the document and nothing more. Most judges and constitutional scholars—nearly everyone, in fact—would agree that the constitutional text is a necessary starting point for consti- tutional interpretation and that, on occasion, the text furnishes both the beginning and the end of the inquiry. But examination of the words alone frequently yields little guidance, because the meanings of the Constitu- tion’s most important phrases are anything but self-evident and are often endlessly contestable. Literal readings tied to a term’s original understand- ing also run the risk of freezing the Constitution in an earlier century and rendering it obsolete, as when the Supreme Court read the Fourth Amend- ment’s stricture against unreasonable “searches” and “seizures” as wholly inapplicable to wiretapping and electronic eavesdropping simply because 8 | IT IS A CONSTITUTION WE ARE EXPOUNDIng those techniques of information-gathering involved no trespass into a con- stitutionally protected physical space and thus did not precisely resemble the kinds of intrusions that the amendment’s authors and ratifiers had in mind when they crafted the provision. A related fallacy is the notion that ambiguous or open-ended language in the Constitution can always be explained by divining the original intent or purpose of the Constitution’s authors. Even such relatively sophisticated “originalism,” focusing on abstract intentions rather than on concrete ex- pectations, often is flawed in part because the Constitution’s framers, draft- ers, and ratifiers did not always share a single purpose or set of purposes for the language chosen, and in part because the historical record of such intentions and aims as they did share is often dramatically inconclusive and at times downright contradictory. More fundamentally, an originalist ar- gument that insists on applying the Constitution only in the ways that the framers consciously intended is—ironically—unfaithful to the most fun- damental intentions of the framers, most of whom seem to have envisioned a far less constricted approach. But since much has been written elsewhere about the limitations of these arguments (and the inconsistency with which they are applied even by their proponents), that is not the principal focus of this publication. What this volume demonstrates is that there are compelling alternatives to these facile theories. Numerous scholars, Supreme Court Justices past and present, and others who have thought deeply about the matter, have articulated methods and tools of constitutional interpretation that have in- tellectual integrity and that offer workable options worthy of serious con- sideration. The approaches they offer are faithful to the document’s lan- guage, structure, and history, while ensuring that it will retain its vitality over time. As Justice Brennan put it in a 1983 speech excerpted here, “The genius of our Constitution rests . in the adaptability of its great principles to cope with current problems and present needs.” Instead of stopping at a nearsighted examination of text or a cramped review of original intent, the authors represented here start with the Constitution’s text and history but go on to examine a number of additional sources to explicate the Constitu- tion’s substance, such as its structure and organization; major developments in American social and political history; values and ideals central to the nation’s culture and heritage; and deeply established lines of judicial prec- edent. And others, prominently including Justice