Thus, as Republicans continue to obstruct judicial nominees they deem too activist, conservative judges, as E.J. Dionne has written, are overturning "decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation." The current Supreme Court, as the Times wrote back in 2007 uses judicial activism in service of conservative ideology. And, as Dionne put it,"[i]f anyone doubted that the Supreme Court's current conservative majority wants to impose its view no matter what Congress or state legislatures decide -- or what earlier precedents held -- its decision in the Citizens United case should end all qualms."
The American Constitution Society, via Professors Geoffrey Stone and William Marshall, has provided the intellectual heft to begin the dismantling of the conservative constitutional narrative, which they explain is "deeply unprincipled and patently wrong," while articulating "a principled approach to constitutional interpretation that is true to the vision of the Framers and their understanding of both the Constitution and the distinctive and essential role of courts in the interpretation and enforcement of the Constitution."
In a cogent, accessible and powerful brief, The Framer's Constitution, they ably demonstrate how the Framers of the Constitution were "visionaries" who designed the Constitution to endure by defining "our most fundamental freedoms" as well as "governmental powers" in general terms, "entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time." This understanding recognizes that while "the principles enshrined in the Constitution do not change over time . . . the application of those principles must evolve as society changes and as experience informs our understanding."
This constitutional theory presented by ACS acknowledges the overarching importance of deference to the preferences of the majority and insists that "the starting point must be a presumption of judicial restraint." But it also emphasizes what the Framers knew -- that majority rule was imperfect:
They understood that political majorities may be tempted to enact laws that entrench their own authority; that driven by fear, self-interest or short-sightedness, majorities may sometimes too quickly cast aside fundamental freedoms and critical structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.To address these concerns, the Framers clearly intended the courts to "play a central role." As James Madison maintained when he introduced the Bill of Rights, “independent tribunals of justice will consider themselves . . . the guardians of those rights [and] will be naturally led to resist every encroachment” upon them.
Accordingly, "the Supreme Court has "properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when majorities act in moments of high crisis."
This has led to a series of landmark decisions including ending racial segregation, recognizing "one person, one vote," forbidding government suppression of political dissenters, providing for the right to counsel for criminal defendants, and limiting governmental interference with women's reproductive rights.
Despite the well-grounded, principled basis for these decisions, conservatives have successfully attacked "liberal jurisprudence" as result oriented, while maintaining that they strictly adhere to the true meaning of the Constitution. Relying on the theory of "originalism" concocted by Robert Bork, Edwin Meese and Antonin Scalia, this approach "presumes that courts should exercise juridical restraint unless the 'original meaning' of the text clearly mandates an activist approach."
Stone and Marshall expose the fundamental flaws of originalism. As they explain, the Founders had no "precise and agreed-upon meaning" of the "broad foundational provisions" they enacted. And since it impossible to discern what they as a whole thought about "concrete constitutional issues," judges who purportedly engage in originalist analysis project "their own personal and political preferences," resulting in "unprincipled and often patently disingenuous jurisprudence." Moreover, for originalism to have any legitimacy one would have to believe that the Framers were narrow-minded, short-sighted men rather than visionaries "steeped in a common-law tradition," and that they "intended the meaning and effect of their handiwork to be limited to the specific understandings of their time." This is simply an erroneous view of history.
Despite the fact that the conservative doctrine of originalism has been largely discredited, a more aggressive conception of conservative constitutionalism has emerged that "insists that even such traditional legislative measures as civil rights laws and social welfare programs are unconstitutional."
Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down affirmative action programs, restrictions on corporate political expenditures, gun control laws, regulations of commercial advertising, federal civil rights laws prohibiting age discrimination and domestic violence, and the laws of the state of Florida in the 2000 presidential election, have hijacked the power of judicial review.This pattern of decisions makes clear that the conservative justices of the Supreme Court are not "in any way faithful to judicial restraint, originalism, or the analogy to 'calling balls and strikes,' but in fact are opportunistically and often hypocritically activist when that approach suits their ends."
This hypocrisy needs to gain far wider reach.
The American Justice Society's Framers' Constitution provides us with a principled, liberal understanding of constitutional interpretation that needs to reach not only the legal community but the American public more generally, so that we can begin reframing the national debate -- a debate we are losing badly to an increasingly radical and destructive right wing.