Constitutional Interpretation


Constitutional interpretation could have a great affect on the implementation and survival of The Rule. Issues like Separation of Powers and Presidential War Powers are just the tip.

The Originalism vs Living Constitution debate will probably never be settled.  Should we look solely to the original text and what the concepts meant when they were adopted by the framers of the Constitution?  Or should we ask what the concepts mean today?  Since the framers obviously had no way of imagining what our society would be like is it the obligation of current courts to provide for growth of the doctrines?  Some would hold that  the two philosophies are not exclusive and can be reconciled.

In my opinion former Supreme Court Justice William Brennan said it best when he stated: "“It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions.”



PDF Transcript

Constitutional Fidelity Over Time - Panel 1

On October 6 & 7, 2006, American Constitution Society and Vanderbilt Law School co-sponsored this presentation, "Constitutional Fidelity Over Time," as part of the "Keeping Faith with the Constitution in Changing Times" Conference.

The panel featured:

* Moderator, Ed Rubin, Dean, Vanderbilt Law School
* Erwin Chemerinsky Alston & Bird Professor of Law and Professor of Political Science, Duke University School of Law
* Marty Lederman, Visiting Professor of Law, Georgetown University Law Center
* John McGinnis, Professor of Law, Northwestern University School of Law


Constitutional Fidelity Over Time - Panel 2

On October 6 & 7, 2006, American Constitution Society and Vanderbilt Law School co-sponsored this presentation, "Constitutional Fidelity Over Time and Democratic Legitimacy," as part of the "Keeping Faith with the Constitution in Changing Times" Conference.

The panel featured:

* Moderator, Lisa Schultz Bressman, Co-Director of the Regulatory Program and Professor of Law, Vanderbilt University Law School
* Rebecca L. Brown, Allen Professor of Law at Vanderbilt Law School
* Frank I. Michelman, Robert Walmsley University Professor, Harvard Law School
* Robin West, Professor of Law, Georgetown University Law Center


PDF Transcript

An Interview with Justice Stephen Breyer

A 2005 interview of Justice Stephen Breyer by Nina Totenberg of NPR.
Discusses his philosophical differences with Originalism and how he believes judges should interpret the Constitution.

The transcript includes commentary and annotations of 3 lectures given a few months earlier at Harvard University Tanner Lectures on Human Values on Our Democratic Constitution and form the basis of the justice's book "Active Liberty: Interpreting Our Democratic Constitution"



Justices Breyer and Scalia Debate Constitutional Interpretation

On December 5, 2006, the American Constitution Society and the Federalist Society co-sponsored "A Conversation on the Constitution: Perspectives from Active Liberty and A Matter of Interpretation" with U.S. Supreme Court Associate Justices Stephen Breyer and Antonin Scalia.

In this conversation, which was moderated by ABC News Legal Correspondent Jan Crawford Greenburg the Justices discussed the interpretive methodologies described in their books, and conversed on the Constitution itself.


Our Enduring Constitution: Applications and Interpretations

Presented June 14, 2008 at the American Constitution Society National Convention

This fantastic panel explores various approaches to constitutional interpretation. What does it mean to be faithful to the Constitution’s language, history and structure? What are the Constitution’s underlying values and how are they relevant to today’s society? How are social context and practical consequences relevant to the task of interpretation? In short, how do we apply this centuries-old document to the present day?

Panelists included:

Judge William Fletcher, U.S. Court of Appeals for the Ninth Circuit
Jack M. Balkin, Professor of Law, Yale Law School
Randy E. Barnett, Professor of Legal Theory, Georgetown University Law Center
Pamela Harris, O’Melveny & Myers LLP
Goodwin Liu, Professor of Law, Boalt Law School, University of California, Berkeley
Kathleen M. Sullivan, Professor of Law, Stanford Law School
Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School

This video is an hour and 45 minutes but definitely worth watching. Be sure to play it in full screen


An Interview With Justice Antonin Scalia

A very enlightening interview with the Justice by Charlie Rose. He discusses his Originalism views, how the court works, and how to persuade a court. He explains in more detail the reason for his opinion in the Boumediene case. 

PBS - June 20, 2008 - 56 min.


Interpreting Our Written Constitution
From the Federalist Society Great Debate:

Speeches by:

* Atty. Gen. Edwin Meese III
* Justice William J. Brennan
* Justice John Paul Stevens
* Judge Robert Bork
* President Ronald Reagan


Importance of Constitutional Text

"Text, History and Boumediene"
Elizabeth Wydra, Chief Counsel to the Constitutional Accountability Center

From the ACS blog


Constitutional Requirement Determined by Current Norms

In June, 2008, a majority of the Supreme Court holds that:

The Eighth Amendment's requirements,  are "determined not by the standards that prevailed" when the Amendment was adopted but "by the norms that 'currently prevail.' "

In making its determination, the Court is guided by "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions.". Consensus is not dispositive, however. Whether the death penalty is disproportionate to the crime also depends on the standards elaborated by controlling precedents and on the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose.


Originalism and Living Constitutionalism Meld

Using "Abortion" as his platform, Yale Professor Jack Balkin argues that the debate between originalism and living constitutionalism rests on a false dichotomy.

"That is why we do not face a choice between living constitutionalism and fidelity to the original meaning of the text. The two are opposite sides of the same coin."

The Framers’ Constitution: Toward a Theory of Principled Constitutionalism
An ACS Issue Brief by Geoffrey R. Stone and William P. Marshall
September 2011