Keeping Faith with the Constitution (INALIENABLE RIGHTS)

Keeping Faith with the Constitution (INALIENABLE RIGHTS)

Goodwin Liu

Language: English

Pages: 272

ISBN: 0199738777

Format: PDF / Kindle (mobi) / ePub


Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it.

In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances.

The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.

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under interpretive theories that disavow the relevance of contemporary social understandings to the application of the Constitution’s general principles. To justify Brown, originalism must posit that the federal and state legislators who ratified the Fourteenth Amendment understood it to abolish segregated schools. Given the widespread practice of school segregation in the states and the paucity of evidence that the enacting Congress believed the Amendment would radically transform public

the contemporary understandings of those protections and the challenges that demand continued vigilance. EARLY UNDERSTANDINGS AND THE SEDITION ACT OF 1798 At the core of early controversies over freedom of speech was whether the First Amendment abolished the crime of seditious libel. At common law, seditious libel “consisted of defaming or contemning or ridiculing the government: its form, constitution, officers, laws, conduct, or policies, to the jeopardy of the public peace.”9 The vagueness

Amendment.20 Other scholars have argued that the original understanding of the First Amendment incorporated significant reforms to the law of seditious libel, including truth as a defense, and a growing recognition of free speech as a check on abusive government.21 But even if the Framers did not fully embrace the old common law, they did not fully repudiate it either. The fact that Congress passed the Sedition Act of 1798 less than seven years after ratification of the First Amendment

governed; and that the powers of government should be organized to enable it to affirmatively “secure” and “effect” the rights and liberties of the people. At the same time, in its allegations against the King, the Declaration also identified some of the key principles limiting governmental authority. Among the acts justifying America’s secession from the British Empire were the King’s interference with judicial independence and trial by jury, his elevation of military authority over civilian

v. Ogden, 22 U.S. 1, 187–89 (1824); McCulloch v. Maryland, 17 U.S. 316, 413–15 (1819). 82. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); McCleskey v. Kemp, 481 U.S. 279 (1987). 83. Missouri v. Holland, 252 U.S. 416, 433 (1920). 84. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 884–90 (1996). 85. McCulloch v. Maryland, 17 U.S. 316, 407 (1819). 86. See infra chapter 3. 87. 22 U.S. 1, 188 (1824) (Marshall, C.J.). 88. Antonin

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