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Constitutional Interpretation and Change

Ideological conservatives have been quite successful in promoting neutral-sounding theories of constitutional interpretation, such as originalism and strict construction, and in criticizing judges with whom they disagree as judicial activists who make up law instead of interpreting it. The Constitutional Interpretation and Change Issue Group works to debunk the neutrality of those theories and expose misleading criticisms. It also articulates effective and accessible methods of interpretation to give full meaning to the guarantees contained in the Constitution.

The Issue Group's Co-Chairs are:


To get involved in the work of the Constitutional Interpretation and Change Issue Group, please fill out the Issue Group Sign-Up Form.

Also, please note that ACS ResearchLink features a number of topics related to the Constitutional Interpretation and Change Issue Group’s work on which law students are encouraged to focus their academic scholarship.
Recent Stories

ACS Panel Discussion: 2009-2010 Supreme Court Review

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2009 - 2010 Supreme Court Review

On Thursday, July 1, ACS hosted a panel discussion at the National Press Club examining the current Supreme Court Term and looking forward to the next. In the immediate wake of the Term's conclusion, leading academics and practitioners analyzed the Court's most noteworthy decisions, identified emerging trends, and discussed the nomination of Solicitor General Elena Kagan to the Court.

The July 1, 2010 panel discussion featured: 

  • Moderator, Thomas C. Goldstein, Partner, Akin Gump Strauss Hauer & Feld, LLP
  • Paul Butler, Associate Dean for Faculty Development and Carville Dickinson Benson Research Professor of Law, George Washington University Law School
  • Paul D. Clement, Partner, King & Spalding, and former Solicitor General of the United States
  • Doug Kendall, President, Constitutional Accountability Center
  • Elisa Massimino, President and Chief Executive Officer, Human Rights First
  • Andrew J. Pincus, Partner, Mayer Brown LLP, and Visiting Lecturer in Law, Yale Law School
  • Virginia A. Seitz, Partner, Sidley Austin LLP
  • Monica Youn, Counsel, Brennan Center for Justice at New York University School of Law's Democracy Program

ACS Convention Plenary: Congress & The Courts

On June 19, at the 2010 ACS National Convention, a plenary panel discussed "Congress and the Courts." The plenary featured:

  • Linda Greenhouse, Senior Research Scholar in Law, Yale Law School;
  • Ronald A. Cass, Dean Emeritus, Boston University School of Law, Moderator;
  • Judge U.W. Clemon, Shareholder, White Arnold & Dowd P.C., Retired, U.S. District Court for the Northern District of Alabama;
  • Jonathan P. Hiatt, Executive Assistant to the President and Chief of Staff, AFL-CIO;
  • Pamela S. Karlan, Co-Director, Supreme Court Litigation Clinic and Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School;
  • Representative Jerrold Nadler, Chairman, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, U.S. House of Representatives;
  • John Payton, President and Director-Counsel, NAACP Legal Defense and Educational Fund.

The Right and Wrong Kinds of Judicial Activism


Alan B. Morrison

Fri, 05/07/2010

ACS is pleased to distribute The Right and Wrong Kinds of Judicial Activism, an Issue Brief by Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service at The George Washington University Law School. In this Issue Brief, Professor Morrison argues that judicial activism, which he defines as judicial decision-making that overturns legislative or executive judgments, is both inevitable and necessary. The operative question, he suggests, is not whether such activism is good or bad, generally, but whether it is legitimate in specifics cases.

 

Tracing historical allegations of judicial activism, Professor Morrison articulates a theory for when it is justified, contending that:

 

"[I]t is most appropriate for the Court to intervene and overturn legislative decisions when there is some reason to believe that our system of representative government has not worked and that the protections that the Constitution is supposed to afford are lacking. The most common circumstance of appropriate intervention is to safeguard rights of a racial or other minority that were not adequately represented in the political process."

 

He also argues that judicial intervention is legitimate when "the structural protections afforded by the Constitution's specific guarantees of separation of powers or federalism have broken down because of an imbalance in legislative powers."

 

Professor Morrison then proceeds to test his theory by applying it to various decisions and areas of the law, including the landmark Brown v. Board of Education decision of the Warren Court declaring segregated schools unconstitutional; the right to privacy cases concerning abortion, contraception and anti-sodomy laws; the death penalty; and campaign finance decisions.

 

Click Here to Download the Issue Brief

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ACS Issue Brief - Morrison Judicial Activism.pdf214.99 KB

ACS Issue Brief: Mandatory Health Insurance - Is It Constitutional?


Simon Lazarus

Tue, 12/22/2009

On the Eve of Historic Healthcare Vote, ACS Distributes Timely Issue Brief

 

In “Mandatory Health Insurance: Is It Constitutional?,” Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, addresses arguments regarding the constitutionality of the individual mandate that constitutes a core part of the healthcare legislation under consideration. Mr. Lazarus argues that the mandate is clearly lawful and in accord with the Constitution.

 

In this Issue Brief, Mr. Lazarus argues that multiple provisions of the Constitution permit Congress to enact an individual mandate as part of healthcare reform legislation. He claims that “the Supreme Court decades ago, in 1944, held that the business of insurance fell within Congress’ regulatory authority under the Commerce Clause,” and that modern cases which limit the reach of the Commerce Clause authority do not undercut the authority of Congress to legislate in this area. Mr. Lazarus also argues that the individual mandate is authorized by the Congressional authority to tax and spend for the general welfare. Mr. Lazarus concludes that no provision of the bill of rights, or text found elsewhere in the Constitution, acts to prohibit Congress from enacting healthcare reform legislation.

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Lazarus Issue Brief Final.pdf290.76 KB

ACS Panel Discussion: 2009-10 Supreme Court Preview



On Thursday, September 24, 2009 ACS hosted its annual preview of the Supreme Court’s new term, which opens October 5, 2009. A diverse panel of constitutional law experts and litigators highlighted some the Court’s most pressing cases and issues, including the scope of habeas corpus review, limits of police questioning after a right of counsel has been invoked, the ability to challenge the constitutionality of a religious display on public property, and whether the First Amendment limits government regulation of videos depicting animal cruelty. The panelists also discussed unfolding trends on the high court and Justice Sotomayor’s potential to shape those trends.

Birthright Citizenship: A Constitutional Guarantee


Elizabeth Wydra

Tue, 05/05/2009

ACS is pleased to distribute an issue brief by Elizabeth Wydra, Chief Counsel at the Constitutional Accountability Center, entitled Birthright Citizenship: A Constitutional Guarantee. Ms. Wydra explains that, “Since its ratification in 1868, the Fourteenth Amendment has guaranteed that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Notwithstanding this Amendment, Ms. Wydra observes “opponents of birthright citizenship continue to fight this constitutional guarantee” in myriad ways.

 

Ms. Wydra maintains that these efforts are directly contrary to the express text of the Fourteenth Amendment as well as its history and animating principles. Ms. Wydra explains that the “powerfully plain language” of the Citizenship Clause of the Fourteenth Amendment “embodies the jus soli rule of citizenship, under which citizenship is acquired” though place of birth. Moreover, Ms. Wydra notes, the legislative debates surrounding the Citizenship Clause show “that both its proponents and opponents agreed that it recognizes and protects birthright citizenship for the children of aliens born on U.S. soil. . . . Whether the members of the Reconstruction Congress understood the Citizenship Clause to be a welcomed turn toward equality—and voted for it—or a worrisome invitation to foreign migrants—and voted against it—both sides agreed on the enacted Clause’s meaning.” The proponents of the Amendment choose to constitutionalize the issue of birthright citizenship to overrule the Dred Scott decision and “to place the question of who should be a citizen beyond the mere consent of politicians and the sentiments of the day,” argues Ms. Wydra. She then addresses modern arguments that the Fourteenth Amendment does not provide for birthright citizenship but instead citizenship based on the “allegiance” of one’s parents or “consent.” According to Ms. Wydra, while the Reconstruction Framers could have inserted language that would have conditioned citizenship in those ways, they “were not poor wordsmiths and they chose to do none of those things. Instead, they devised a rule that is elegantly simple and intentionally fixed.”

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Wydra Issue Brief.pdf251 KB

Day 1, Panel 1: Originalism and the Second Founding

Featuring:

  • Kermit Roosevelt (moderator)
  • Jack Balkin
  • Barry Friedman
  • Judge Michael McConnell
  • Reva Siegel
  • Roger Wilkins

Click here to see the panel prompt.

Click here to see full coverage of this event.

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