As we contemplate the appointment of a new Supreme Court justice, two new books, released on May 1 by the American Constitution Society, will be particularly enlightening. A fundamental question in the developing debate over President Obama's eventual nominee concerns judicial philosophy. What does it mean to be a "progressive" justice in the modern era?
Keeping Faith with the Constitution, by law professors Goodwin Liu, Pamela Karlan and Chris Schroeder, critiques the "conservative" approaches to constitutional interpretation -- originalism and so-called strict construction, and then traces out a more progressive approach to constitutional interpretation, which the authors describe as "constitutional fidelity," which is designed both to preserve the Constitution's meaning over time while at the same time recognizing that the Framers intended the Constitution to be a "visionary document." In the view of the authors, the Constitution "charts the centuries-long progress of our nation toward greater liberty and equality and more effective democratic government." They emphasize that, as each critical juncture in our constitutional history, the Framers "inscribed our fundamental values into the Constitution with broad language and expansive principles open to future interpretation." The challenge for the Supreme Court to remain both true to the past and responsive to the present.
The second volume, It is a Constitution We are Expounding, edited by Pamela Harris and Karl Thompson, is an anthology of some of the best writing on constitutional interpretation by judges, scholars, and others. The excerpts including in this work present a variety of resources for constitutional interpretation and explore a wide range of interpretative methodologies. The main thrust of this volume is to show that where the Constitution's text fails to provide a clear answer (what is "equal protection of the laws" or the "free exercise of religion"?), the proper response is neither to throw up our hands and toss the Constitution aside nor to make up the meaning out of whole cloth, but to look to the recognized tools of constitutional interpretation, which are rooted in the Constitution itself. It is a Constitution We are Expounding includes excerpts from works by such constitutional thinkers as Laurence Tribe, Robert Bork, Thurgood Marshall, and Richard Posner.
It is a happy coincidence that these two works come to us at precisely this moment in our history. Anyone interested in understanding the judicial philosophy that President Obama is likely to seek in his Supreme Court nominees can do no better than to read these works. For more information about these volumes, you can go to www.ACSLaw.org.