Constitutional Infidelity: Progressive Judicial Philosophy

Although words and the meaning they convey mean everything in the law; words mean very little to people with agendas. This is bad news. Worse yet, the U.S. Constitution is filled with old words and phrases that, when read out of context, lose meaning over time. Most frightening, legal commentators who prefer to sidestep our Constitution to accomplish the progressive-statist agenda continue to bash the virtue of seeking our Constitution’s original meaning.

In lockstep with progressive reforms, a recent book, “Keeping Faith with the Constitution,” adopted the term “constitutional fidelity.” Goodwin Liu was one of the authors, and the focus of another contributor on this topic. It is asserted that this term “respects the endurance of our written Constitution” and also “explains how its text and principles retain their authority and legitimacy.” Filled with anti-Justice Scalia propaganda and criticism, it intends – but fails – to strike the middle ground between those who think original meaning controls and those who think meaning should account for the needs of our “progressing” society. It does nothing of the sort.

At its core, constitutional fidelity asserts that original meaning (which the authors correctly concede is not strict constructionalism, but rather, an exercise of reading words in the context in which the words were enacted) should be sought when interpreting “concrete provisions,” but not the “broad and general principles.” It is these broad principles, they assert, that should adapt “in light of the conditions and challenges faced by future generations.” But constitutional fidelity ignores that there is no principled manner to determine which provisions of the constitution are broad, as opposed to concrete. One might suppose that any provision best suited to confront society’s next “challenge” would be interpreted in such a way. This is not law.

Equally untenable are constitutional fidelity’s assertions that settling today’s constitutional disputes by seeking, exclusively, our constitution’s original meaning is radical because of the following reasons: (1) our constitution does not explicitly state the manner in which judge’s are supposed to interpret it; (2) all of the framers did not have a mutual understanding of every constitutional provision; and (3) originalism cannot account for “constitutional understandings that Americans take for granted today.”

The absurdity of the first reason is that the authors assert that constitutional fidelity is acceptable, despite the fact that the constitution also does not provide for it. It is also of no surprise that the authors of constitutional fidelity provide no examples of any laws that provide for the manner in which they are to be interpreted. Lawmakers write laws; they certainly do not interpret laws or tell judges how to do so. Constitutional fidelity cites to Marbury v. Madison for its own interpretive principal, asserting that “it is emphatically the province and duty of the judicial department to say what the law is,” and then ignores the same when it is critical of originalism.

And why is it relevant that all of the framers did not have a uniform understanding of our constitution? It would be laughable to even suggest that all lawmakers today have a mutual understanding of any law that was passed. The mountains of legislative history used in litigation today prove that point. Quite hypocritically, constitutional fidelity sees the lack of uniform original understanding as an impediment to originalism but makes no comment on the extraordinary breadth of its own standard that includes “not only social conditions and facts about the world, but also public values and social understandings as reflected in statutes, the common law, and other parts of the legal landscape.” It is irrelevant to constitutional fidelity that there are no uniform standards here. At least originalist judges know what they are looking for.

It defies logic to state, as constitutional fidelity does, that originalism is flawed because it cannot explain “settled features of constitutional law” such as Brown v. Board of Education or Roe v. Wade. The fact that the Courts have historically rendered opinions that produced socially acceptable results does not legitimize the process by which the results were obtained. Moreover, the favorable public opinion of the Court’s decisions means only that people agree with the results. This fact is irrelevant when determining how our constitution should be interpreted.

The authors’ misunderstanding of baseball and its criticism of Judge John Roberts – then nominee for Chief Justice of the United States Supreme Court – is most indicative of its own infidelity. While now Chief Justice Roberts stated correctly that judges are like umpires whose job is simply to call balls and strikes, constitutional fidelity asserts that baseball fans know that umpires over time have “interpreted the strike zone differently in response to changing aspects and contemporary understandings of the game.” This is absurd. Analogous to amending the constitution, Major League Baseball can change the rules of the strike zone at its leisure. I would pay a high price, however, to see one of the authors of constitutional fidelity serve as an umpire in a baseball game and explain to New York Yankee fans, after losing to the Boston Red Sox, that the last called strike was based not upon MLB’s rules, but the umpire’s evolving understanding of the game. While the fact that it might happen is inevitable, this is not argument, as constitutional fidelity analogously asserts, that it is acceptable.

Today, this debate is particularly important. President Barack Obama routinely criticizes the Court. He inserts his beliefs about the impact of its decisions (ignoring the merits of legal debate), and is now going to appoint his second Supreme Court Justice. More than likely, the new Justice will share the views of the authors of constitutional fidelity. President Obama stated recently that Justice Stevens believes – as he does – that “powerful interests must not be allowed to drown out the voices of ordinary citizens.” With due respect to separation of powers, who cares what President Obama believes the constitution means? And as far as our constitution goes, constitutional fidelity argues for nothing more than leeway for powerful interests, like President Obama’s, to drown out the voices of the ordinary citizens who created it.