At the ACS National Convention: Keeping Faith With the Constitution

Our summary of the panel appears below. If you’d like to watch a video of the roundtable, click here.
The panel was built around Keeping Faith With the Constitution, a new book by law professors Goodwin Liu, Pamela Karlan, and Christopher Schroeder. You can download the book here.
Goodwin Liu kicked off the discussion by asking: How should the provisions of the Constitution be applied today? He made three points:
1. The Constitution is a layman’s document, belonging to ordinary citizens.
2. The Constitution contains broad principles that transcend specific applications. This is why it has evolved more through interpretation than formal amendment.
3. The Constitution is a practical framework, not an abstract document. Strict constructionism and textualism reduce the Constitution to a rigid document.
Pam Karlan echoed these themes, arguing that many of the most important and best decisions in constitutional law cannot be explained through textualism or strict constructionism. Constitutional interpretation isn’t just a matter of putting on a bracelet reading “WWJMD” – What Would James Madison Do? (Her snarky quip drew laughter from the audience.)
Karlan’s other funny comment: “We could have titled the book ‘We’re Liberals and Not Ashamed of it.’ But we decided to go instead with ‘Keeping Faith with the Constitution.'”
Moderator Tom Goldstein, turning to the judges on the panel, asked them to explain how they go about the process of constitutional interpretation — for example, in a case involving minority set-asides.
Judge Rosemary Barkett declined the invitation: “I don’t want to talk about minority set-asides. I’d like to talk about sex toys.” (Her court, the Eleventh Circuit, is a leader in sex toy jurisprudence.)
But Judge Barkett, despite bringing up the salacious topic, couldn’t quite follow through. A few sentences later, she found herself at a loss for words: “Intimacy is protected by the Constitution. If a married couple wants to use these… these….”
(Her squeamishness reminded us that Judge Barkett used to be a nun.)
Judge Sutton, picking up on the sex toys topic, started off by noting: “The ACS conventions are a lot more fun than the Federalist Society conventions!” He then turned his attention to Keeping Faith With the Constitution, observing that the book makes a number of good points, and saying he’s glad to see that scholars are willing to take on Justice Scalia (for whom Judge Sutton clerked).
(Justice Scalia comes up so much in the book, Judge Sutton noted, that he started to wonder if “ACS” stands for “Americans Concerned about Scalia.”)
Judge Sutton — an appealing representative for conservatives on the panel, as a soft-spoken and mild-mannered superhottie of the federal judiciary — then raised a concern about the ACS approach to constitutional interpretation. If you keep emphasizing the “evolution” of the Constitution — the whole living, breathing document business — you’ll end up with a more majoritarian court, as opposed to the a court that protects minorities and checks public opinion. Is that what liberals want? Judge Sutton pointed to the area of criminal law, where originalists like Justices Scalia and Thomas are doing a fine job of protecting the rights of criminals, a decidedly unpopular minority.
Furthermore, “modernization” of the Constitution won’t necessarily lead to results that progressives will like. For example, take the “knock and announce” cases in the Fourth Amendment context. It could be argued, given the on-the-ground realities of modern police work, that this rule is dangerous and should be discarded.
John Payton, of the NAACP Legal Defense Fund, agreed that progressives don’t want a strictly majoritarian Court. Look back at the Court in the 1940s — how popular would racial justice have been then? Or look at Brown v. Board of Education — a decision that was quite unpopular in its day, even though it is now something we are proud of. Payton offered this nice soundbite: “We the People has to mean ALL the people.”
On the other hand, we don’t want to go too far in the countermajoritian direction, Pam Karlan argued. A lot of the time progressives just want the courts to get out of the way of a democratic process that understands liberty and equality quite well.
The second Pam on the panel, Pam Harris, emphasized the importance of distinguishing between descriptive and prescriptive analysis when looking at the Court. She also stressed the importance of properly characterizing history. For example, what was the civil rights movement about? Chief Justice Roberts sees it as being about total colorblindness; Justice Stevens sees it as being about eradicating racial oppression. These competing visions are reflected in their decisions.
Summarizing some of the discussion up to that point, Tom Goldstein asked the panel: When is it legitimate to overrule the judgment of the rest of society, and when is it not?
Goodwin Liu, ever the clever law professor, wouldn’t take the bait: “I think everyone is looking for an answer to that question, and I think that’s the wrong question.” The question presumes that judges are in a position to act definitively, when in fact judges are part of a democratic interchange and interaction. (For more on this topic, see Jeff Rosen’s NYT magazine piece on democratic constitutionalism.)
The Supreme Court should not be viewed as the final word on every constitutional issue, according to Liu. Consider the area of gender equality. This is not an area where the courts took the lead. Rather, the courts took their cue from Congress.
Judge Barkett also warned against relying too heavily on the judiciary: “The courts are not very brave. They generally aren’t jumping ahead of the public.” Perhaps it’s more a matter of reaching a point where the courts represent what the public knows to be true, deep down in their hearts. Take Brown v. Board. By the time it was decided, people knew in their hearts that we were treating blacks unfairly — even if it may not have been publicly stated as much back then.
Playing the role of conservative on the panel, Judge Sutton jumped in to observe that the Constitution does tolerate mistakes. Sometimes it may take too long to correct a mistake. But not everything that’s bad or wrong is unconstitutional. He also added that, regardless of where you end up, the original meaning of a given constitutional provision is a good starting point for analysis. It’s important to know what a provision meant before considering if and how it should change.
Pam Harris responded by saying that she’s happy to stand by the Constitution. She argued that the Constitution is a profoundly progressive document, a document we can all be proud of.
But let’s not get too cheerleader-ish about the Constitution, cautioned Pam Karlan. You can be a fan of the Constitution and yet view some specific provisions as wrong. For example — and this was interesting coming from Pam Karlan, the SCOTUS short-lister viewed by many liberals as the jurisprudential genius who can reach any result she wants — there is simply no way to get around the text: Governors Jennifer Granholm or Arnold Schwarzenegger, because they weren’t born in the United States, cannot become president. There is “no honest way to get around that,” Karlan conceded; you’d need an amendment.
Judge Barkett jumped in: “I too am a huge fan of the Constitution.” We should hope so, Your Honor!
But, Judge Barkett continued, we are talking about achieving a more just society. Justice and constitutionality are separate questions. There are other rights that we could have in our Constitution. When you take a look at the European Convention on Human Rights, you realize how many things are missing from our Constitution.
The 2009 ACS National Convention [American Constitution Society]
Keeping Faith With the Constitution [PDF]