Keeping Faith with the Constitution (INALIENABLE RIGHTS)
Goodwin Liu
Language: English
Pages: 272
ISBN: 0199738777
Format: PDF / Kindle (mobi) / ePub
Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it.
In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances.
The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.
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States,12 a case examining whether the protections of the Fourth and Fifth Amendments apply to private telephone conversations intercepted by law enforcement through wiretapping. The Court held that, because wiretapping did not involve physical trespass upon the defendant’s person or property, it did not implicate a search or seizure as those terms were understood when the Fourth Amendment was adopted.13 “The amendment itself shows that the search is to be of material things—the person, the
for broad principles—here, the right to use technology, or “instruments,” for self-protection—whose practical meaning depends on interpretation that is responsive to evolving social conditions, including advances in technology. At the same time, the Court recognized that not all weapons available today fall within the Second Amendment’s scope. As a historical matter, the Court explained, the amendment accommodated the tradition of prohibiting the carrying of “dangerous and unusual weapons” and
and proportioned to offense” and held the punishment unconstitutional.7 A century later, Americans continue to face the task of applying our Constitution to new contexts. William Faulkner famously wrote: “The past is never dead. It’s not even past.”8 And so we still face some of the questions raised by Weems. How does the Constitution apply to United States–controlled territory overseas—for example, the naval station at Guantánamo Bay in Cuba or the Bagram Air Force Base in Afghanistan? Does the
Status of Slaves in States Engaged in Rebellion Against the United States (Jan. 1, 1863), available at www.presidency.ucsb.edu/ws/index.php?pid=69880. 20. ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–1877, at 8 (1988). 21. The Slaughter-House Cases, 83 U.S. 36, 69 (1873); see id. (“It was very well understood that in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by
States. I. Karlan, Pamela S. II. Schroeder, Christopher H. III. Title. KF4550.Z9L578 2010 342.7302—dc22 2009047949 1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper Contents … EDITOR’S NOTE INTRODUCTION CHAPTER ONE: THE CONSTITUTION’S VISION AND VALUES CHAPTER TWO: JUDICIAL INTERPRETATION OF THE CONSTITUTION CHAPTER THREE: EQUALITY CHAPTER FOUR: FREEDOM OF SPEECH CHAPTER FIVE: PROMOTING THE GENERAL WELFARE CHAPTER SIX: SEPARATION OF POWERS CHAPTER
