FLORIDA, January 16, 2013 — The Constitution can be interpreted in more ways than one. Strict constructionists and originalists vie with modernists to decide how the Constitution will be used to shape our laws today. Is the Constitution absolute, or should interpretations shift to adapt to a changing culture and changing demands on our government?
On top of the debate on whether the Constitution is fixed or malleable, we have the issue of “judicial activism.” To some people this means judges interpreting the Constitution to arrive at ideologically predetermined answers; to others it means judges reaching conclusions they don’t like. Is judicial activism a real issue, or is it a rhetorical bogeyman?
In this second part of our discussion, Louis Michael Seidman, Georgetown law professor and author of the forthcoming book On Constitutional Disobedience, addresses these questions and explains what about the Constitution he finds most intriguing.
Joseph F. Cotto: What are your views regarding strict constructionism?
Louis Michael Seidman: “Strict construction” has a variety of different meanings. Sometimes people use this phrase to mean that the Supreme Court should be hesitant to invalidate laws passed by the political branches unless their is unambiguous constitutional language that supports this outcome. Conservatives often endorse “strict construction,” but if this is what the term means, it condemns many Supreme Court decisions that they endorse. For example, there is no unambiguous constitutional language that limits affirmative action, that creates a right independent of a well regulated militia to own guns, or that condemns Obama care.
Sometimes, people use the phrase to mean that we ought to follow the original public meaning of constitutional language or the original intent of the framers. But many provisions of the constitution are vague or ambiguous, and it is often impossible to figure out either the original intent or public meaning. For example, AK-47’s did not exist at the time of the framing. Did the original public meaning of the phrase “arms” in the Second Amendment include them? If it did, what about nuclear weapons?
Similarly, the framers guaranteed equal protection of the laws, but they had no thoughts at all about whether this included gay marriage and, as I have said, the thoughts that they had about whether it included a ban on racial segregation are views that virtually no American would endorse today.
Cotto: People often speak about “judicial activism” after a judge interprets Constitutional law in a controversial fashion. In your opinion, is judicial activism a legitimate concern, or a construct of populist rhetoric?
Seidman: Again, the term “judicial activism” is ambiguous. In my book, I take no position on whether the Supreme Court should continue to invalidate statutes. What I do think is that the Court ought to be honest about what it does. Many modern judicial decisions on questions like affirmative action, gay marriage, gun control, and abortion, have nothing to do with constitutional interpretation in any straightforward sense. Instead, they are decisions based upon some mix of interpretation of prior precedent and tradition, political ideology, and moral and political theory.
Perhaps it is a good thing to have an elite body somewhat insulated from the political process rendering these decisions, but that’s a question for the American people to decide once the myth of constitutional obligation is dispelled.
Cotto: The term “freedom” means different things to as many people. What sort of freedom would you say that the Constitution provides for?
Seidman: Read on the broadest level of generality, the Constitution provides for a government that, in the great words of the preamble, provides for the common defense and general welfare and creates a more perfect union. Again, read on the most general level, the Constitution protects liberty, property, and equality. The problem is that we are in sharp disagreement about what all of these sweeping phrases mean. The Constitution might serve a useful purpose if it framed a good faith dialogue whereby people alive today tried to work out the meaning of these terms in our own time. It serves a deeply pernicious purpose if it cuts short this discussion by attempting to substitute eighteenth century commands for what Americans think today.
Cotto: Which aspect of the Constitution do you find to be most intriguing?
Seidman: The most intriguing part of the Constitution is its first three words: “We the People.” If we the (living) people are to be truly in control of our own destiny, we need to throw off the yoke of constitutional obligation.
Cotto: Many readers are probably wondering how it was that you came to be such a noted legal scholar. Tell us a bit about your life and career.
Seidman: I’m not sure how “noted” I am, but, I have been an academic for a long time; no doubt, critics would say too long. Before assuming my current job at the Georgetown University Law Center, I spent some time doing criminal defense work for the District of Columbia Public Defender Service and clerking for two wonderful judges: Judge J. Skelly Wright, who served on the United States Court of Appeals for the District of Columbia Circuit and United States Supreme Court Justice Thurgood Marshall.
While serving in these positions, I could not help but notice the huge gap between the story that law, especially constitutional law, tells about itself and the way that it actually functions when you watch up close how it is made. Most of the rest of my career has consisted of trying to think hard about that gap.
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