Some notes on constitutional ideology
(readings for Thu. Sept 1)
Constitutional ideology: basic principles for linking Constitution to policy
goals
Elements of constitutional conservatism (CC)
• claim to have identified "God-given natural rights"--as in Declaration
• centrality of property rights
• purpose of govt: protect those rights
• these were the intent of framers
• wisdom & intent embodied in Declaration and Const.
• (implicitly) a jurisprudence of simple original intent
• judges as protectors of rights, enforcers of framer intent; "umpires"
• from other commentaries: American exceptionalism
Tea Party constitutionalism
• From Schmidt Sec. IV: “The most valued label for politicians hoping
to gain the support of Tea Party followers is ‘constitutional
conservative.’ solutions to U.S. problems are in the Const and in
Framers’ insights
• main purpose of Const: ensure limited role of govt. (esp. Fed govt)
• “Popular constitutionalism” (not their term):
o Const meaning is readily apparent to avg citizen upon reading –
“not obscure”. Armey: “If you don’t understand the
Constitution, I’ll buy you a dictionary”
o all citizens have responsibility to understand & follow it
o “protestant” vs. “catholic”
o affect on judges
• Emphasis on wisdom of Framers
• Tea Party “constitutional practice”
o educational and political efforts
o Contract from America: mutual effect between TP agenda and
responses from the sympathetic public
• Proper constitutional interpretation:
o originalism
o textualist (TP) vs. public-meaning orig’sm (more common
among conservative judges)
• Support for changes concerning 1st, 14th, 16th, 17th amendments
Mt. Vernon stmt
• Note its explicit attempt to define CC
• Perhaps a coalition-building effort among different kinds of
conservatives.
Const. conservatives’ characterizations of the opposing viewpoint
• liberals think purpose of government is redistribution
• liberals think judges should apply their own values to cases
• liberals think Constitution is obsolete and irrelevant
Some elements of liberal constitutional ideology
• framer intent stated very generally, requires interpretation
• inappropriate to tie modern govt to an outdated, narrow def. of
"original intent"
• (Lithwick:) framer intent was to create effective govt able to deal with
new problems
• Stone: govt interprets and applies rights, and the question is just:
whose rights? Consvs. protect the powerful, liberals the powerless.
• Marshall: centrality of civil rights & equality; framers' failure; Civil
War as collapse, a new revolution, new Constitution
• “Living constitution”: principles interpreted in light of modern
conditions and beliefs. Alternatively, broader forms of originalism,
esp. original intended principles (differs only in degree from “LC”)
• (more below)
Important points of Marshall
• basic merit of U.S. const. system is its emphasis on equality, which
cannot be credited to the framers
• discontinuity at Civil War—a new constitution, in effect
• central importance of 14th Amendment
• importance (and appropriateness) of “new constitutional principles,”
often via lawsuits/courts, elaborating notions of liberty, equality, and
justice from the 14th Amendment. He doesn’t give examples, but
o "strict scrutiny" applied to abridgements of fundamental rights
(1938 Carolene Products case)
o "separate educational facilities are inherently unequal" (1954
Brown)
o "one man, one vote" (1964 Reynolds) ]
Important points of Reynolds
• list of innovations (some not really new then) includes amendment
process as instrument for perfecting
• compromise with slavery was an unfortunate necessity “But even as
the Framers were acceding to this compromise, they were sowing the
seeds for the expansion of freedom to all individuals when
circumstances would permit” (1347).
• progress thereafter, particularly via Reconstruction amendments, just
as Framers planned.
• Framers’ key innovations survived the Civil War.
We are under a Constitution; it is the original Constitution
together with its [at that writing] twenty-six amendments…
(1351)
• progress might have been more rapid were it not for activist judges
e.g. in Dred Scott, Plessy.
• “It is revisionist history of the worst sort to suggest that the fourteenth
amendment created a blank constitutional slate on which judges could
write their own personalized definition of equality or fundamental
rights. The Civil War amendments were a logical extension of what
had come before: they represented evolutionary, not revolutionary
change” (1349)
Stone’s liberal view of judging and the Constitution
Constitution’s “terms are not self-defining; they did not have clear meanings
even to the people who drafted them. The framers fully understood that they
were leaving it to future generations to use their intelligence, judgment and
experience to give [them] concrete meaning…”
Rejects the “umpire” view of judging
• rather, judges inevitably make strong value judgments
• the right goal is to protect rights
• but it’s mainly liberals who concern themselves with rights
• conservatives instead protect the powerful
• another view: judges (sometimes) balance rights; some rights are
important to the rich (e.g. property), some to the poor (e.g., protecting
equality in political participation)
• difference between conservative and liberal judges: their tendency to
protect rights more important to the rich or to the poor.
Const. decisions that Stone thinks don’t look like “balls and strikes”
• corporate free speech: Citizens United, Virginia State Pharmacy
Board v. Virginia Citizens Consumer Council (a 1976 case in ruling
that a state couldn’t prohibit pharmacists from publicizing prescription
drug prices—“commercial free speech”)
• individual right to bear arms
• affirmative action unconstitutional
• equal protection clause in Bush v. Gore
• Boy Scouts’ 1st amendment right to exclude gay scoutmasters