Conversation on Modes of Constitutional Interpretation

Buy your tickets for program at the Supreme Court on May 8th

|The Volokh Conspiracy |

The John Simon Guggenheim Memorial Foundation & the Supreme Court Historical Society are sponsoring a conversation between Michigan law professor Richard Primus and me on Modes of Constitutional Interpretation. The event will celebrate the 10th Anniversary of the Guggenheim Fellowship in Constitutional Studies. Professor Primus and I were the first two recipients of this Fellowshop. The program will held on Tuesday, May 8th at 6:00pm and moderated by The Honorable Patricia A. Millett. Tickets are on sale now here.


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  1. As a question to anyone with a particular theory of constitutional interpretation, I’d like to ask: Can you think of an interpretation your system leads you to make, even though you think the constitutional provision so interpreted is a bad idea and should probably be amended?

    1. To keep it interesting, keep the inquiry to actually disputed questions, not obvious stuff like 2 Senators, etc.

      1. That keeps it interesting but changes things — a range of provisions are disputed and that is part of the basic nature of the enterprise. There is room for changing opinions.

        I think D.C. cannot have a voting member in Congress akin to representative. That isn’t obvious to everyone from what I can tell, including a proposal by Sen. Orin Hatch. I don’t like how the filibuster is being used but think it is a political question and the courts couldn’t block its usage.

        I also think certain things took time to develop – so, e.g., I would doubt in 1971 that the death penalty should be declared unconstitutional across the board by the Supreme Court. Or, all recreational drugs should be non-criminal. I think that there is a reasonable constitutional argument to be made, but it would be unreasonable for the Supreme Court itself to do it now.

    2. As a question to anyone with a particular theory of constitutional interpretation, I’d like to ask: Can you think of an interpretation your system leads you to make, even though you think the constitutional provision so interpreted is a bad idea and should probably be amended?

      Yes, I believe that under the original meaning of the Fourteenth Amendment does not protect against discrimination on the basis of gender. This was partially rectified by the 19th Amendment. I wish there had been a way of coming up with some wording that would have resolved the remainder of the problem without at the same time creating a potential Pandora’s Box for the Supreme Court to use in unexpected (and unwanted) ways.

      The attempt to rectify the remainder of the problem with the ERA failed, I believe, as a result of a fundamental mistrust of the courts, after they began interpreting such phrases as “without due process of law” to mean that the court could strike down any legislation contrary to the court’s sense of what everybody’s fundamental rights should be in a just society. People saw the Supreme Court as a wild card, and they didn’t trust it to properly adjudicate the meaning of “equality of rights under the law.” Some opponents even went so far as to suggest that single-sex bathrooms would be eliminated and same-sex couples would be able to get married if the amendment were passed, far-fetched as that might sound.

      1. Good answer, swood.
        It’s still very rare for such a conflict to crop up.

        Used as a political football or no, the Constitution and it’s methods of interpretations is still awesome, as is our comparatively zealous reverence for it.

        Unlike some, I believe that despite inherent biases most people argue about the Constitution in good faith. Having a written Constitution sets the arena for debate.

      2. “does not protect against discrimination on the basis of gender”

        The 19th Amendment addresses voting, which the second section of the 14A was referenced of at the time to show that on that issue the original understanding did not protect women suffrage. In fact, even for blacks, a separate amendment was deemed necessary since many thought voting was not a civil right addressed.

        OTOH, whatever “due process” or the rights of citizenship entailed, the amendment spoke in general terms. Not racial or otherwise. So, it seems strange to me that no discrimination – by gender or otherwise — nonracial in that respect would not violate the Equal Protection Clause. If they wanted merely to protect on the basis of race or never protect sex, that was a fairly strange phraseology.

        I’m no originalist but I think the original understanding there protected sex too though only a limited number of laws or policies would be so irrational to be covered. The ERA, however, in effect would make it strict scrutiny, which is quite stronger. I think part of the failure of the ERA was that the people accepted the more limited — including by development in the courts — protection of sexual equality. The ERA would accelerate that bit by bit development & people weren’t ready. Same sex marriage, e.g., was protected over THIRTY YEARS after the time limit of the ERA expired.

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