The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the new nation into an uncertain future.
The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: “freedom of speech,” “due process of law,” “free exercise” of religion, “equal protection of the laws,” “cruel and unusual punishment.” The Constitution sets forth governmental powers in similarly general terms: Congress may regulate “commerce… among the several states,” the president will “take care that the laws be faithfully executed,” the courts are authorized to decide “cases” and “controversies.”
These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, “we must never forget it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”
Marshall’s interpretative understanding reflects an approach that is true to what we might call “The Framers’ Constitution.” It recognizes that the Constitution sets forth broad principles and that the central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.
American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of “search” in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass. The provision granting Congress the power to maintain the nation’s “land and naval Forces” was eventually seen as authorizing an air force. The guarantee of “equal protection of the laws” in the Fourteenth Amendment was understood in later decades as prohibiting discrimination against not only African Americans but women and gays and lesbians as well. “Commerce…among the several states” came to be seen differently as the nation’s economy became more complex and integrated across state lines. The concept of “liberty” was recognized as encompassing not only freedom from physical restraint, but also freedom from undue government intrusion into such fundamental personal decisions as whether to bear or beget a child or how to raise and educate one’s children.
But how should we give concrete meaning to the open-textured provisions of the Constitution? The best answer, grounded in the vision of the Framers and in the wisdom of John Marshall, has a long and honorable tradition in American constitutional law. This answer has two elements. First, at the very core of the Framers’ Constitution is the recognition that, in a self-governing society, courts must generally defer to the preferences of the majority. Although courts may always review governmental action to guard against the arbitrary or unreasonable, the starting point must be a presumption of judicial modesty. This is an essential tenet of any theory of principled constitutionalism.
Second, respect for the Framers’ Constitution requires us to recognize that although the Framers thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that in times of crisis people may panic and too readily sacrifice both fundamental freedoms and structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.
The Framers intended courts to play a central role in addressing these concerns. When proponents of the original Constitution argued in 1789 that a bill of rights would be pointless because political majorities would run roughshod over its guarantees, Thomas Jefferson responded that this argument ignored “the legal check” that could be exercised by the judiciary. When James Madison faced similar concerns when he introduced the Bill of Rights in the first Congress, he maintained that “independent tribunals of justice will consider themselves…the guardians of those rights [and]…will be naturally led to resist every encroachment” upon them. And in Federalist 78, Alexander Hamilton stated that constitutional protections and limitations could “be preserved in practice no other way than through the medium of courts of justice,” which must “guard the Constitution and the rights of individuals from the effects of those ill humours which…sometimes disseminate among the people themselves.”
This understanding of the Framers’ Constitution found expression in the modern era in a series of Supreme Court opinions in the 1930s and ’40s. In the Court’s famous footnote four in Carolene Products (1938), for example, the Court suggested that there are some circumstances in which there may be “narrower scope” for the usual “presumption of constitutionality.” Specifically, the Court noted that “more exacting judicial scrutiny” may be appropriate when legislation “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and when laws disadvantage groups like “religious” or “racial minorities,” because “prejudice” against such groups “tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect” them. Put simply, the majority recognized in Carolene Products that courts should not be so quick to defer to the outcome of the political process when there is good reason to believe that that process itself may have been tainted. The Court added another element to this understanding in Skinner v. Oklahoma (1942), in which the Court invalidated a law authorizing compelled sterilization. Noting that the right to procreate is one of “the basic civil rights of man,” the Court held that government action that substantially restricts the exercise of such a right must be subjected to heightened scrutiny to ensure that the limitation on the right is truly necessary.
Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when they substantially restrict the exercise of constitutionally protected rights. In such circumstances it is necessary and proper for courts—Madison’s “independent tribunals of justice”—to exercise a “more exacting judicial scrutiny” in order to protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers. This, too, is an essential tenet of principled constitutionalism.
Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of landmark decisions that faithfully interpret and apply the Framers’ Constitution. These decisions ended de jure racial segregation, recognized the principle of “one person, one vote,” forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women, limited the authority of government to interfere with women’s reproductive choices, and upheld the right of “enemy combatants” to due process of law, to cite just a few examples. These decisions animate the most fundamental aspirations of our Constitution in circumstances in which judicial intervention is both necessary and proper.
For the past half-century, however, conservatives have argued that the Supreme Court has gone too far in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. In the 1960s, they condemned what they derided as “judicial activism” and demanded the appointment of judges committed to a more capacious form of judicial restraint. But although judicial restraint in appropriate circumstances is essential to principled constitutionalism, its sweeping, reflexive invocation by conservatives would abdicate a fundamental responsibility that the Framers entrusted to the judiciary and would therefore undermine a critical element of the American constitutional system. It is no more appropriate for judges to refuse to enforce the Constitution against intolerant or overreaching majorities than it is for the president to refuse to defend the nation against enemy invasion.
Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, political conservatives next came up with the theory of “originalism.” First popularized by Robert Bork, Edwin Meese, and Antonin Scalia in the 1980s, originalism presumes that courts should exercise judicial restraint unless the “original meaning” of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the “original meaning” of the clause.
Originalism, however, is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of the specific meaning of “freedom of speech” or “due process of law” or “regulate Commerce…among the several States” or “privileges or immunities” or “equal protection of the laws,” it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations (which were both strongly regulated and highly distrusted at the time) had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today’s conservative legal agenda.
The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But this view erroneously attributes to the Framers a narrow-mindedness and shortsightedness that belies their true spirit. As Justice Louis Brandeis observed more than 80 years ago, the Framers believed “courage to be the secret of liberty.” They were not timid men. Moreover, originalism ignores that those who framed our Constitution were steeped in a common-law tradition that presumed that just as reason, observation, and experience permit us to gain greater insight over time into questions of biology, physics, economics, and human nature, so too would they enable us to learn more over time about the content and meaning of the principles they enshrined in our Constitution. Indeed, the notion that any particular moment’s understanding of the Constitution’s provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrong-headed to the Framers, who held a much bolder and more confident conception of their own achievements and aspirations.
For these reasons, the conservative doctrine of “originalism” has been largely discredited as a serious method of constitutional interpretation. This is not to say, however, that the views of the Framers are irrelevant. To the contrary, their values, concerns, and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. They must be considered as the Framers themselves understood them—as a set of general principles and aspirations, rather than as a collection of specific and shortsighted “rules.” To be true to the Framers’ Constitution, we must strive to implement faithfully the Framers’ often farsighted goals in an ever-changing society. That is central to any theory of principled constitutionalism.
We have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as “conservative activism.” Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down affirmative action programs, restrictions on corporate political expenditures, regulations of commercial advertising, federal civil rights laws prohibiting age discrimination and domestic violence, and the laws of the state of Florida in the 2000 presidential election, are unmistakably using the power of judicial review in a highly selective and politicized manner that cannot credibly be justified by any principled theory of constitutional interpretation. Despite all of the conservative rhetoric about originalism, “strict construction,” “judicial restraint,” “applying rather than making the law,” and “calling balls and strikes,” this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
Constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, changing social, economic, technological, and cultural conditions, and the practical realities of the times. It requires restraint, wisdom, empathy, intelligence, and courage. Above all, it requires recognition of the judiciary’s unique strengths and weaknesses, a proper appreciation of the reasons for judicial review, and a respectful understanding of our nation’s most fundamental constitutional aspirations and how we hope to achieve them.
It is time for a new era of principled constitutionalism. It is time to return to the Framers’ Constitution.