Interpreting the Constitution
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Interpreting the Constitution


How should progressives
interpret the Constitution? Well, I think no one, or at
least no one we we take seriously uses only a single method to
interpret the Constitution Isaiah Berlin was famous for
saying, “The Hedgehog knows one big
thing, and the Fox knows many things.” And I think, liberals, and I
think everybody who interprets the Constitution
honestly is kind of a fox… like me. So, what are the different
methods that people use? Well, obviously you start with
the text the words that are written on
the page. And, sometimes those words are
pretty definitive. So, for example we know that
Arnold Schwarzenegger or
Jennifer Granholm can’t be president, because
they’re naturalized citizens and the Constitution says only a
“natural born citizen”. But, even there, you have to
sometimes interpret the words in
context. So, Bill Clinton was born in
Hope, Arkansas so he was a citizen from birth. But, he was born by cesarean
section. Does that mean he’s not “natural
born”? No, of course not! So, you read the words in
context, and that’s where you start. And then, obviously, one of the
big questions is: “Well what did the Framers, what did the people who wrote
the words think?” And there, I think it’s really
important to understand, this Constitution didn’t just
have one framing, 1789 through 1791, it also had a huge framing right
after the Civil War, with the introduction of the
13th, 14th, and 15th Amendments, which are profound changes in how the Federal Government
and the state governments
interact and profound changes about the commitment of America
to racial equality But even if you’re asking “how should we interpret the
words, based on what the Framers of the
words think”, you have to answer the question “Why should we care about that?” Maybe the Framers wanted us to interpret the words in light of our experience and
our understanding. So when the Constitution says that the 8th Amendment forbids
“cruel and unusual punishment”, are we really asking what they
thought was cruel and unusual in 1789? Or in 1870? Or are we asking “what does our
understanding tell us about what the words
“cruel and unusual” mean today?” And, of course, many of the
things that are in the Constitution
they failed to anticipate. So, when we ask “is it an unreasonable search
for the police to stand across the street from
your house, and use a thermal imaging
device?” Even Antonin Scalia said yes. Why? Because there are
principles of privacy in the
Constitution, not because you ask “if James Madison had had a thermal imaging device, what would he done with it” or, “if James Madison had been
asked about violent video games, what would he have thought?” That’s an idiotic question to
ask! Or, it’s a question that has an
answer, only that “we think he would think what we
think today!” So, there too, you know, it’s very hard to say what they
understood. And of course, understandings
about society have changed. So the same people who proposed
the 14th amendment, segregated the galleries in
front of which they debated
these issues, and segregated the schools in
D.C. which they were responsible for. Because they didn’t understand,
as we do, that it’s not equal protection
of the law to treat people differently on
the basis of race, because race is a morally
irrelevant criterion. So, of course text and original
understanding play some role, but they don’t answer some of the hardest questions about what
the Constitution should be interpreted to mean. And then on top of that, even if
you’re thinking about the text, and the understanding, you also have to look at what
Charles Black, the great legal
Constitutionalist of the
mid-20th century said about the “structure and
relationship” between the different pieces of
the Constitution. So, you should look at the
pieces in context and you should ask about
some of the big principles that underlie the Constitution, and here I’ll just point to one
of them that I think is really
critical: it’s one that John Hart Ely, a great constitutional law
professor of the latter half of the 20th
Century pointed to. Which is that the Constitution
is profoundly a document about getting a
democracy up and going, and
surviving. And so, he said, “you should interpret the
Constitution not in a clause bound way so
much, but in light of the fact that
it’s a representation reinforcing
document.” So what does that tell you? It tells you two things that are
really important: one is, when you interpret the
Constitution, you should interpret it in a way
that keeps the channels of
political change open. So, you have to be much more
vigorous in policing the attempts to
prevent people from voting, or prevent people from speaking
freely, then you have to police things
about how banks should be regulated or the like. And, you also have to protect
groups that can’t protect themselves in the political
process, so that they can become
citizens, so that they can become
participants in the process. And that’s a really important
thing as well. Fourth, you need to think about
precedent, because even though we’re very confident (all of us, always) in
our own beliefs, it’s important to recognize
there were wise heads who thought about these things
before. And, it’s important to
understand, as the Supreme Court three judge
opinion said in Planned Parenthood v. Casey, that generations of Americans
organize their lives around an understanding of what
the Constitution protects. And there, for example, a
generation (indeed, I’m old
enough to say), two or three generations of
American women have now organized their lives
around the idea that they control their
reproductive capacity. And, precedent tells them that. And reliance tells them that. And finally, you have to
interpret the Constitution in a way that makes pragmatic
sense. The Constitution is not a
suicide pact. Even Justice Scalia, in his
ostensibly textualist and originalist opinion in
Heller, the DC guns case, said “well of course you can’t
take a gun into a courtroom , or into a courthouse.” Why not?! You can speak in a
courtroom or a courthouse! There’s a famous Supreme Court
case, Cohen v. California, that says you can wear a jacket
that says “F**k the Draft” into a courthouse. So why not let people take guns
into courthouses? Because it’s a really bad idea. And even people who claim to be
textualists and originalists don’t interpret the 2nd
Amendment in a way that creates those
kinds of dangers. So, all of those are ways of
thinking about the Constitution. And the other thing that’s
important to remember is: who interprets the Constitution. It’s not just the Supreme Court, it’s not just Judges. Every public official in the
United States takes an oath to support and
defend the Constitution. And when they do their jobs,
they need to think about what the Constitution forbids, even if no Court is going to
tell them it forbids that. And all of us as citizens, we
interpret the Constitution as
well. If you want to know who’s had
the biggest effect on what the 14th
Amendment and its enforcement
clause reads, don’t just look to judges on
the Supreme Court, look to students (like John
Lewis, as a 23 year old), who put their lives and their
bodies on the line, to change how Americans think
the 14th Amendment applies, or the like. So, I guess the key takeaway from all of this, is that Constitutional interpretation is not a
mechanical act. Sometimes, especially when
they’re in front of the cameras, judges
act as if it is. So, the first Justice Roberts, on the Supreme Court during the
New Deal wrote that “The Judicial branch has only
one duty: to lay the Articles of the
Constitution which have been
invoked beside the statute that’s being
challenged, and decide whether the latter
squares with the former.” It’s kinda like what you do when
you make a pie, and you put the crust on top, and then you cut away the edges. Or, the current Chief Justice
Roberts, the second Justice Roberts on
the Supreme Court, says “Being a judge is like
calling balls and strikes.” Well, that metaphor doesn’t even
make sense on its own terms, because of course if you look at
what umpires really do, they call balls and strikes, but let me read to you one of
Major League Baseballs rules: Rule 7.06. It says, that if a
runner claims there has been interference in
the base path, the umpire should award the
runner, and here I’m going to
quote, “the bases they would have
reached, in the umpire’s judgement, if there had been no obstruction
in the base path.” That calls for judgement, that
calls for equity, that calls for understanding
that people should have a fair opportunity to run
the race. And more fundamentally, as I suggested at the beginning, there’s never been only one
clear, legitimate, and timeless method
of interpreting the
Constitution. Throughout our history, since
the founding of the republic, arguments about the Constitution
have relied on text, they’ve relied on original
understandings, they’ve relied on structure and
relationship, they’ve relied on precedent, and they’ve relied on arguments
about what does our most important document
mean to us today, as citizens, and as residents of the Country. So we’ve always had a
Constitution that’s evolved to meet to felt needs of the
American people, and that’s not going to change.

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