11/05/2007 02:08 pm ET Updated May 25, 2011

Supreme Imbalance: Of "Constitutionalism"

In previous posts in this "Supreme Imbalance" series, I examined and rejected three "conservative" approaches to constitutional law - judicial passivism, originalism, and conservative activism.

This brings me to the fourth approach I have discussed, which has variously been called "liberalism," or "judicial activism," or "not strict constructionism." In my view, a better and more descriptive term would be "constitutionalism."

The central mission of this approach to constitutional interpretation is to embrace the responsibility the Framers imposed upon the judiciary to serve as a check against the inherent dangers of democratic majoritarianism and to maintain the vitality of fundamental individual liberties in a constantly changing world.

This is not an easy task. But nor is self-governance easy. Constitutionalism is not mechanical, it is not mindless, it is not value-free. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, and ever-changing social and cultural conditions. It requires restraint, humility, curiosity, wisdom, and intelligence. Perhaps above all, it requires intellectual honesty, courage, a recognition of the judiciary's unique strengths and weaknesses, and a deep understanding of our nation's most fundamental constitutional aspirations.

Let me use the Warren Court as an example. Is the United States a better or worse nation today because of the decisions in Brown v. Board of Education, prohibiting racial segregation in public schools, Engel v. Vitale, prohibiting school prayer, Goldberg v. Kelly, guaranteeing a hearing before the termination of welfare benefits, Reynolds v. Sims, guaranteeing "one person, one vote," Mapp v. Ohio, guaranteeing meaning protection of the constitutional prohibition of "unreasonable searches and seizures," Gideon v. Wainwright, guaranteeing all individuals the right to counsel in criminal cases, and New York Times v. Sullivan, protecting a robust freedom of the press?

That is a fair question. The proof, after all, is in the results. In my judgment, however controversial some or all of these decisions might have been, every one of them properly understood and implemented the values with which the Framers sought to imbue our Constitution. And however controversial those decisions might have been at the time, every one of them is today regarded as a beacon of what the United States stands for in the world. (I can say with absolute confidence that Justices Roberts, Alito, Scalia, and Thomas would have reached the opposite result in every one of these cases, had they been on the Court at the time.)

Speaking of counter-factuals, let me step off the cliff a bit further and tell you what issues I think a Court made up of justices committed to a theory of constitutionalism would today be deciding:

Not that affirmative action is unconstitutional, but that are there circumstances in which affirmative action is constitutionally required.

Not that cigarette companies have a constitutional right to shill their product to children, but that children have a constitutional right to an adequate education.

Not that the state can execute juveniles, but that individuals accused of crime have a constitutional right to DNA testing.

Not that the government can constitutionally ban partial birth abortions even when the ban endangers the lives of women, but that the government cannot constitutionally ban stem-cell research in order to enforce the faith-based beliefs of the religious right.

Not that billionaires have a constitutional right to spend millions of dollars to buy the elected representatives of their choice, but that public officials cannot use partisan gerrymandering to ensure their perpetuation in power.

Not that the Boy Scouts have a constitutional right to discrimination against gays and lesbians, but that gays and lesbians have a constitutional right to marry.

Constitutional law is about precedent, and text, and history, and law. But it is also about values and vision. I ask you, what is your vision for the constitutional future of our nation?

This is the sixth and final post in a series on the make-up and direction of the Supreme Court.