Wednesday, May 6, 2009

Infidelity to the Constitution

Professors Goodwin Liu (Boalt Hall), Pamela Karlan (Stanford), and Christopher Schroeder (Duke) just published Keeping Faith with the Constitution, which they claim is a bold challenge to originalism (in all its stripes), on the one hand, and to "living constitutionalism," on the other, and a clear argument for a richer approach they call "constitutional fidelity." The book is one of a pair just released by the American Constitution Society. (The other is a collection of works on constitutional interpretation titled It is a Constitution We are Expounding.) You can download a full copy on the ACS site, here.

An announcement and commentary has been posted to the Constitutional Law Profs Blog.

My comments are as follows:

While the two books, especially Keeping Faith with the Constitution, seem sound at a certain level of abstraction, and claim to reject the "living Constitution" approach to constitutional construction, when they get to the details they largely embrace that approach, and accept what some historians would regard as departures from constitutional fidelity as better "understandings" of it. That is especially brought out in their treatment and acceptance of broad interpretation of the Commerce and Necessary and Proper clauses.

I bring out some of this in my article, Principles of Constitutional Construction, in which I point out that "strict" construction properly means narrow interpretation of government powers and broad interpretation of individual rights (or more precisely, immunities). As I also discuss in my article, Presumption of Nonauthority and Unenumerated Rights, there is a fundamental right to a presumption of nonauthority that invalidates such doctrines as deference to a legislature or to administrative agents.

The book seems to be a concession to the growing movement toward accepting some kind of originalism, but is actually a somewhat disingenuous recasting of the progressive agenda of the American Constitution Society into pseudo-originalist terms.