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A Constitution for All Times

A Constitution for All Times

Pamela S. Karlan
Copyright Date: 2013
Published by: MIT Press
Pages: 208
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  • Book Info
    A Constitution for All Times
    Book Description:

    Pamela S. Karlan is a unique figure in American law. A professor at Stanford Law School and former counsel for the NAACP, she has argued seven cases at the Supreme Court and worked on dozens more as a clerk for Justice Harry Blackmun. In her first book written for a general audience, she examines what happens in American courtrooms -- especially the Supreme Court -- and what it means for our everyday lives and to our national commitments to democracy, justice, and fairness. Through an exploration of current hot-button legal issues -- from voting rights to the death penalty, health care, same-sex marriage, invasive high-tech searches, and gun control -- Karlan makes a sophisticated and resonant case for her vision of the Constitution. At the heart of that vision is the conviction that the Constitution is an evolving document that enables government to solve novel problems and expand the sphere of human freedom. As skeptics charge congressional overreach on such issues as the Affordable Care Act and even voting rights, Karlan pushes back. On individual rights in particular, she believes the Constitution allows Congress to enforce the substance of its amendments. And she calls out the Roberts Court for its disdain for the other branches of government and for its alignment with a conservative agenda.

    eISBN: 978-0-262-31835-8
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. I-VI)
  2. Table of Contents
    (pp. VII-VIII)
    (pp. IX-XVI)

    In his 1928 bookThe Paradoxes of Legal Science, then-judge, and later Supreme Court justice, Benjamin Cardozo wrote that rather than defining “due process of law”—a critical concept in constitutional law—courts “leave it to be ‘pricked out’ by a process of inclusion and exclusion in individual cases…. It is all very well to go on pricking the lines,” he observed, “but the time must come when we shall do prudently to look them over, and see whether they make a pattern or a medley of scraps and patches.”

    This book originated as a series of columns inBoston...

  4. Part I: Originalism, Activism, and Constitutional Values

    • 1. In the Beginning
      (pp. 3-10)

      Since 1789, constitutions worldwide have come and gone. According to University of Chicago Law professor Tom Ginsburg, the median lifespan of a national constitution is eight years—roughly the life expectancy of a Great Dane. Why has the U.S. Constitution endured?

      Not because it is unchanged. The Constitution has been reshaped by formal amendments, Supreme Court decisions‚ and shifting popular understandings of such broad terms as “commerce” and “equal protection.” Although the original text largely remains, fidelity to the Constitution requires reading its words in light of the principles they express: principles embracing liberty, equality, and opportunity, as well as...

    • 2. Founding Firearms
      (pp. 11-20)

      The idea that the meaning of a constitutional provision is frozen at the moment of its ratification—and that its meaning can be discerned and applied to contemporary controversies in an incontestable manner—lies at the heart of arguments for originalism, an interpretive method Justice Scalia has spent his career championing.

      But both judicial and popular conceptions of constitutional meaning undeniably change over time, and there is often disagreement over how to understand the historical evidence. Ironically nothing illustrates this more powerfully than the recent history of the Second Amendment—the subject of Justice Scalia’s most avowedly originalist opinion for...

    • 3. Why Interpretive Methods Matter
      (pp. 21-32)

      During the Supreme Court’s 2010 term, in the course of oral argument over the constitutionality under the First Amendment of a California law that restricted the sale of violent video games to minors, Justice Samuel Alito got a big laugh from the audience when he interjected, “What Justice Scalia wants to know is what James Madison thought about video games.”

      Of course Madison had no such thoughts, but the question perfectly captures the challenge that new technologies present to originalism—the theory that, when adjudicating constitutional questions, judges should rely essentially on how constitutional provisions were understood at the time...

    • 4. What Do We Mean By Judicial Activism?
      (pp. 33-40)

      A weak economic recovery. The airwaves filled with demagoguery about important constitutional issues. A president who chides the Supreme Court for striking down a major piece of federal reform legislation. And, in response to charges of a pro-corporate tilt on a Court with a narrow conservative majority, Justice Roberts defends the Court’s intervention with the claim that judges do nothing more than “lay the article of the Constitution which is invoked beside the statute which is challenged” in order “to decide whether the latter squares with the former.”

      2013? No, 1936. That mechanistic image of the judicial process was the...

    • 5. The Unhealthy Activism of the Roberts Court
      (pp. 41-52)

      The Patient Protection and Affordable Care Act—a.k.a. Obamacare—is one of the most momentous pieces of federal legislation of the last half-century. But ironically the opponents who launched the failed constitutional attack on the Act used its modesty as the basis for their challenge.

      If Congress had voted to provide every American with health care through a national health service, that law would have been almost immune from constitutional challenge. It has long been understood that the power to tax and spend—enumerated in Article I of the Constitution—lies largely with Congress: it decides what to tax and...

  5. Part II: The Supreme Court and the Democratic Process

    • 6. The Long Shadow of Bush v. Gore
      (pp. 55-64)

      It is one of the unforgettable moments in recent Supreme Court history, and a decision that will endure in the nation’s memory: inBush v. Gore(2000), the Court stepped in to decide the presidential election. The Court halted Florida’s recount and announced that the state’s method of reviewing ballots violated the equal protection clause of the Fourteenth Amendment.

      Although the justices had found a constitutional violation, they weren’t interested—as the Court’s unsigned opinion made clear—in vindicating equality more broadly. Their decision, the justices wrote, “is limited to the present circumstances, for the problem of equal protection in...

    • 7. The Wages of Watergate
      (pp. 65-74)

      It has now been more than 40 years since the Watergate break-in, which precipitated modern efforts to respond to the dangers of unfettered political spending. Yet our political system is now more awash than ever in secret money. Why? Much of the answer lies in the interaction between Supreme Court decisions and post-Watergate reforms.

      In the wake of the scandal, the 1974 amendments to the Federal Election Campaign Act (FECA) sought to limit both political contributions and expenditures. But in its foundational decision inBuckley v. Valeo(1976), a challenge to the FECA amendments, the Supreme Court drew a sharp...

    • 8. Me, Inc.
      (pp. 75-84)

      When the Supreme Court heardSanta Clara County v. Southern Pacific Railroad Co. in 1886, few would have pegged the case as a turning point in constitutional law. The matter at hand seemed highly technical: could California increase the property tax owed by a railroad if the railroad built fences on its property?

      As it turned out, the Court ruled unanimously in the railroad’s favor. And in so doing, the Court casually affirmed the railroad’s argument that corporations are “persons” within the meaning of the Fourteenth Amendment, which provides that no state shall “deprive any person of life, liberty, or...

    • 9. Votes Behind Bars
      (pp. 85-94)

      Nearly half a century ago, Isaiah Berlin delivered an extraordinarily influential lecture called “Two Concepts of Liberty.” The negative concept consists in freedomfrom—“warding off interference” from external forces. By contrast, the positive concept consists in freedomto—to be “a doer—deciding, not being decided for.” Democracy requires both forms, but current constitutional doctrine adopts an unduly negative approach.

      This is especially the case when it comes to political voice. The Supreme Court has resisted attempts to constrain the political impact of money, most notoriously inCitizens United v. Federal Election Commission(2010). But just as telling is...

  6. Part III: Reasoning Together About Our Rights

    • 10. Gideon’s Muted Trumpet
      (pp. 97-104)

      Last spring marked the 50th anniversary ofGideon v. Wainwright, in which the Supreme Court considered the Sixth Amendment’s guarantee that “in all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” The Court unanimously interpreted the Amendment as requiring that states provide attorneys for defendants who lack the resources to hire them privately. The “noble ideal” that “every defendant stands equal before the law,” Justice Hugo Black’s opinion declared, “cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”...

    • 11. The Cost of Death
      (pp. 105-114)

      Samuel Johnson famously remarked, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” But precisely because it so concentrates the public mind, capital punishment has distorted the criminal justice system. Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended.

      In 1972, by a vote of 5-4, the Supreme Court struck down all capital punishment statutes in the United States. While three justices were prepared to hold the death penalty...

    • 12. What’s a Right Without a Remedy?
      (pp. 115-122)

      In the momentous 1803 caseMarbury v. Madison, Chief Justice John Marshall observed that the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury” and warned that a government cannot be called a “government of laws, and not of men. … if the laws furnish no remedy for the violation of a vested legal right.”

      When the government itself violates individuals’ rights, it is especially important for courts to furnish a remedy. To be sure, providing remedies to the victims of unconstitutional conduct after...

    • 13. When the Umpire Throws the Pitches
      (pp. 123-134)

      During his confirmation hearings, Chief Justice Roberts famously compared judges to umpires. The analogy was designed to convey an image of judicial modesty: judges, like umpires, play a “limited role,” impartially applying rules made by others rather than serving as partisans for one team or another. And he assured the Senate that he would “remember that it’s my job to call balls and strikes and not to pitch or bat.”

      Umpires leave the tactical choices to the teams. As we saw in Chapter 4, that kind of reserve led Alexander Hamilton, inFederalistNo. 78, to describe the judiciary as...

    • 14. Empty Benches
      (pp. 135-144)

      There’s a story told about Joe McCarthy—not the right-wing senator from Wisconsin, but the manager of the great New York Yankees teams of the 1930s and ’40s. McCarthy dreamed that he had died and gone to heaven, where Saint Peter told him to assemble an all-star team. McCarthy was excited: he’d have Christy Mathewson and Walter Johnson, Honus Wagner, Lou Gehrig. Just then, the phone rang. It was Satan challenging McCarthy to a game. “You haven’t got a chance of winning,” McCarthy exclaimed. “I’ve got all the players.” “Oh, I know that,” Satan answered. “But I’ve got all the...

    • 15. Sometimes an Amendment Is Just an Amendment
      (pp. 145-152)

      The Fourteenth Amendment’s equal protection and due process clauses are never far from the news. Last term’s federal marriage equality litigation, for example, lay at their intersection. Many transformational events of post-Reconstruction America, from the dismantling of Jim Crow and the protection of reproductive autonomy to the Supreme Court’s decision in the 2000 presidential election, would have been impossible without them.

      But in recent years two less familiar elements of the amendment—its citizenship clause and its public-debt clause—have taken center stage. Efforts to twist these clauses in the service of policy preferences should remind us that there is...

    • 16. It Takes Two
      (pp. 153-160)

      The Supreme Court’s recent decisions inUnited States v. WindsorandHollingsworth v. Perrygave supporters of marriage equality and civil rights for gay Americans much to be thankful for. InWindsorthe Court struck down the federal Defense of Marriage Act (DOMA), which denied federal benefits to couples validly married under state law. (Disclosure: I represented Edie Windsor, the plaintiff in the DOMA challenge.) And inPerrythe Court held that proponents of a marriage-restricting initiative lacked standing to appeal a district court ruling striking down the results of the initiative, effectively reinstating marriage equality in California.

      These opinions...

    • 17. The Constitution Without the Court
      (pp. 161-170)

      The end of June is high season at the Supreme Court, with the term’s final decisions coming down in rapid succession. But then in July and August, the Court recesses. We rarely hear again from the justices until October.

      Yet it would be a mistake to think that nothing of constitutional significance happens when the Court is not in session. This past August marked the 50th anniversary of the March on Washington for Jobs and Freedom, an event that has had as great an impact on the development of American constitutional law as any but a handful of Supreme Court...

  7. Epilogue: A Movable Court
    (pp. 173-184)

    For liberals and progressives, the end of the 2012–2013 Supreme Court term was the best of times and the worst of times.

    Supporters of social equality for gay people experienced a spring of hope and a season of light. The Supreme Court struck down the federal Defense of Marriage Act inUnited States v. Windsorand inHollingsworth v. Perryleft in place a district court decision requiring that California restore marriage equality. Within days of the decisions, county clerks in California began issuing marriage licenses to gay and lesbian couples, and the chief administrative officer of the House...

    (pp. 185-185)
  9. Back Matter
    (pp. 186-187)