Symposium | First Principles: Debating the Constitution

Geoffrey R. Stone & William P. Marshall respond

By Geoffrey Stone William P. Marshall

Tagged Constitutionoriginalismprogressivism

We agree with Doug Kendall and Jim Ryan that conservatives have effectively framed the national debate over constitutional interpretation. For the past 40 years, conservatives have successfully pressed their narrative on the American people that their approach to constitutional interpretation adheres to the true meaning of the Constitution and to the rule of law, whereas “liberal” jurisprudence is concerned only with achieving specific desired outcomes, without regard to the text, history, or true meaning of the Constitution.

The gains that conservatives have achieved by characterizing the debate in this manner cannot be overstated. Because the public has generally accepted the conservative account, Republican presidents have been much more aggressive than their Democratic counterparts in appointing judges with strongly ideological inclinations, and constitutional doctrine has moved sharply to the right as conservative justices have become ever bolder in their pursuit of politically conservative results. Meanwhile, at the grassroots level, a new strain of conservative constitutionalism has recently emerged that insists that even such traditional legislative measures as civil rights laws and social welfare programs are unconstitutional, reflecting an even more aggressive conception of conservative judicial ideology.

As we argue in our opening entry, the conservative constitutional narrative is deeply unprincipled and patently wrong, both in its defense of conservative judicial ideology and its attack on what conservatives deride as a result-oriented “liberal” jurisprudence. In fact, most of the decisions conservatives disparage are premised on sound principles of constitutional interpretation and on the Framers’ own understanding of our Constitution and of the essential role of courts in our constitutional system. But although progressives actually hold the high ground in this debate, they have generally failed in public discourse either to unmask the realities of conservative judicial methodology or to explain the logic, legitimacy, and coherence of their own understanding of constitutional interpretation. Unless liberals effectively take up this challenge, they will continue to lose in the courts, in nomination battles, in the legislatures, and at the polls. Our piece, which puts the notion of “The Framers’ Constitution” front and center, is an effort to take on that challenge.

Where we apparently disagree with Kendall and Ryan is in how the progressive constitutional position should be framed. Kendall and Ryan argue that the best way for liberals to win the public debate about the judiciary is to claim that liberals adhere to a “textualist” understanding of constitutional interpretation that is akin to the conservatives’ “originalist” theory. Such an approach, they suggest, will appeal to the public because of its seeming clarity and neutrality. They add that the “new textualism,” properly applied, will lead to liberal results.

We believe, in contrast, that the better way for progressives to articulate a genuinely principled theory of constitutionalism and win an informed public debate is to embrace the jurisprudence of John Marshall rather than the methodology of Antonin Scalia. We believe that our understanding of the Framers’ Constitution presents a more honest account of how constitutional interpretation operates in the real world, and is truer to the Framers’ understanding than a mechanical invocation of either originalism or textualism.

Kendall and Ryan seem to argue that complex questions of constitutional law can reasonably be resolved by resort to text alone. The plain and simple truth, however, is that constitutional phrases like “make no law . . . abridging the freedom of speech,” “equal protection of the laws,” and “respecting an establishment of religion” (unlike “the first Monday in December” or “attained to the Age of thirty five Years”) cannot thoughtfully be defined and applied to concrete situations without considering constitutional “values,” changing circumstances, “practical realities,” and the “aspirations” of the Framers.

To be sure, Kendall and Ryan’s approach has a certain allure. Terms like originalism and textualism have political resonance. But in the debate over constitutional meaning, liberals should not pretend that honest answers to vexing constitutional questions can be gleaned simply by staring hard at an ambiguous text. And they should not endorse a method of constitutional interpretation merely because, like originalism, it might effectively mislead the public into believing that their approach to constitutional law is no more difficult than “calling balls and strikes.” What liberals should do instead is to explain candidly and clearly that although principled constitutionalism may at times be challenging, it is nonetheless an essential part of our constitutional system, insofar as it implements the Framers’ understanding that courts must serve as an “impenetrable bulwark” against otherwise unchecked majoritarian dysfunction. The process of constitutional interpretation, even in difficult cases, thus attains legitimacy as long as it is grounded in the very reasons for judicial review itself.

It is no doubt true that our approach may be a harder sell to the public than an appeal to “originalism” or “textualism.” But we have powerful weapons on our side. We can easily expose the originalist account as unsound and disingenuous. We can claim a pedigree for our approach that goes back to the founding generation. We can show that it has produced many of the most important constitutional decisions in American history, and that, even though many of those decisions were initially contested by conservatives, they are now considered hallmarks of American democracy. What progressives need to do now is to initiate a concerted public effort to ensure that these points are heard and understood by law students, lawyers, judges, public officials, and the American public.

Kendall and Ryan object that our approach may give too much latitude to today’s conservative Supreme Court justices. But progressives should advocate an approach to constitutional interpretation not because it might hamstring conservatives (it won’t), but because it is right, and because it reflects a principled understanding of the Constitution.

Kendall and Ryan end their account by insisting that “the Constitution…is on our side.” We emphatically agree. The Constitution is a fundamentally progressive document and history clearly supports a progressive understanding of the Constitution. Kendall and Ryan are therefore absolutely right when they call on liberals not to run away from “the Constitution’s Framers and the history of its enactment.” Where they are wrong, though, is in calling upon progressives to abandon the method of constitutional interpretation that the Framers, John Marshall, and the very best jurists in American history thought to be the right way for judges to bring constitutional principles to life in an ever-changing and ever more complex society.

From the Symposium

First Principles: Debating the Constitution

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...


Doug Kendall and Jim Ryan respond

By Doug Kendall Jim Ryan


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Geoffrey Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago.

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The Framers’ Constitution

William P. Marshall is the William Rand Kenan Jr. Distinguished Professor of Law at the University of North Carolina.

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The Framers’ Constitution

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