Advertisement William Pierce, of Georgia, spoke very little at the Constitutional Convention, but his contributions to what we know of the other delegates to the Convention are invaluable. He wrote short character sketches of each of the delegates; he himself had to leave the Convention early for business reasons.
Tap here to turn on desktop notifications to get the news sent straight to you. It was also published online today by the American Constitution Society. For the past 40 years, political conservatives have effectively framed the national debate over constitutional interpretation. The gains that conservatives have achieved by characterizing the debate in this manner cannot be overstated.
Because the public has generally accepted the conservative account, Republican presidents have been much more aggressive than their Democratic counterparts in appointing judges with strongly ideological inclinations, and constitutional doctrine has veered sharply to the right as Framers of the constitution essay jurists have become ever bolder in their pursuit of politically conservative results.
Meanwhile, at the grassroots level, a new strain of conservative constitutionalism has recently emerged that insists that even such traditional legislative measures as civil rights laws and social welfare programs are unconstitutional, reflecting an even more aggressive conception of conservative judicial ideology.
The conservative constitutional narrative is deeply unprincipled and patently wrong, both in its defense of conservative judicial ideology and in its attack on what conservatives deride as a result-oriented "liberal" jurisprudence. But although progressives actually hold the high ground in this debate, we have generally failed in public discourse either to unmask the realities of conservative judicial methodology or to explain the logic, legitimacy and coherence of our understanding of constitutional interpretation.
Unless we take up this challenge, we will continue to lose in the courts, in nomination battles, in the legislatures, and at the polls. It is time for ACS and its members to take up this challenge.
In this essay, we set the record straight about conservative constitutional jurisprudence and set forth a principled approach to constitutional interpretation that reflects the fundamental values and aspirations of those who framed the American Constitution over the course of more than two centuries and strikes the proper balance between judicial restraint and judicial activism by focusing on the circumstances in which judicial review is necessary to preserve our constitutional liberties and limitations.
The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the nation into an always uncertain future.
The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: Congress may regulate "commerce among the several states" and may enforce the Fourteenth Amendment "by appropriate legislation," the president will "take care that the laws be faithfully executed," the courts are authorized to decide "cases" and "controversies.
The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time.
As Chief Justice John Marshall observed almost two centuries ago, "we must never forget it is a Constitution we are expounding The principles enshrined in the Constitution do not change over time.
But the application of those principles must evolve as society changes and as experience informs our understanding. American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of "search" in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass.
The guarantee of "equal protection of the laws" in the Fourteenth Amendment was understood in later decades as prohibiting discrimination not only against African-Americans but against women and gays and lesbians as well.
But how should we give concrete meaning to the open-textured provisions of the Constitution? On the one hand, judges must have sufficient interpretative authority to ensure that constitutional rights and limitation endure over time.
On the other hand, judges must not have such broad interpretative discretion that they can freely substitute their own personal, political, religious, social, and economics values for those of the People. The best solution, which is grounded in the vision of the Framers across the centuries, has a long and honorable tradition in American constitutional law.
It has two essential elements.
Although courts may always review governmental action to guard against arbitrariness or unreasonableness, the starting point must be a presumption of judicial restraint. This is an essential tenet of any theory of principled constitutionalism.
They understood that political majorities may be tempted to enact laws that entrench their own authority; that driven by fear, self-interest or short-sightedness, majorities may sometimes too quickly cast aside fundamental freedoms and critical structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.
The Framers intended courts to play a central role in addressing these concerns. When proponents of the original Constitution argued in that a bill of rights would be pointless because political majorities would run roughshod over its guarantees, Thomas Jefferson responded that this argument ignored "the legal check" that could be exercised by the judiciary.
When James Madison faced similar concerns when he introduced the Bill of Rights in the first Congress, he maintained that "independent tribunals of justice will consider themselves. And in Federalist 78, Alexander Hamilton stated that constitutional protections and limitations could "be preserved in practice no other way than through the medium of courts of justice," which must "guard the constitution and the rights of individuals from the effects of those ill humours which Put simply, the Court recognized in Carolene Products that courts should not be so quick to defer to the outcomes of the political process when there is good reason to believe that that process itself may have been tainted.
Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups such as African-Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime ; when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when majorities act in moments of high crisis.
This, too, is an essential tenet of principled constitutionalism. These decisions animate the most fundamental aspirations of our Constitution in circumstances in which judicial intervention is both proper and necessary.
In the late s, for example, conservatives like Richard Nixon and Strom Thurmond condemned what they derided as "judicial activism" and demanded the appointment of judges and justices committed to judicial restraint. But although judicial restraint in appropriate circumstances is essential to principled constitutionalism, its sweeping, reflexive invocation would abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary and would therefore undermine a critical element of the American constitutional system.
It is no more appropriate for judges to refuse to enforce the Constitution against intolerant or overreaching majorities than it is for the president to refuse to defend the nation against enemy invasion.The Framers of the Constitution and the Republicanism The constitution is the supreme law of the land.
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