League of Women Voters Newton - Making Democracy Work

Topic Discussion Notes: Is our Constitution Holding up to the Test of Time?

November 30, 2019

On September 15, 2019, Jed Shugerman, a Newton resident, former Bowen PTO co-chair, and law professor and legal historian at Fordham University in New York, lead a discussion on “Is the Constitution Holding up to the Test of Time”.

We first discussed the methods of interpreting the constitution and whether it matters what was “intended” when the constitution was written. The two most common methods of interpreting the constitution are “originalism” and a ”living constitution”. Originalists are usually associated with a more conservative approach to the constitution and to politics, while the ”living constitution” approach is usually associated with more progressive values and politics. Jed presented his case for interpreting the constitution as a “progressive originalist”.

Originalism is built on the idea of the “rule of law”. The constitution is intended to put limits on partisanship and politicians. If we allow the rule of law to evolve all the time, then anyone can interpret it any way they want depending on who is in power. Rather, the constitution should be interpreted the way we interpret any statute or legislation – look at what Congress intended when they passed the legislation, look at the text and the context. That includes not only what was intended by the Founding Fathers and the words in the constitution, but all texts, ideas, thoughts and values, that went into the deliberation of those words, as well as history.

If we are going to embrace the originalist concept for interpreting the constitution, then should we have a longer constitution? No – a more detailed constitution is apt to become outdated and less useful. A shorter constitution sets up the framework of how decisions will be made, but does not get into the minutiae of details that will change over time. So, while the Founding Fathers could not have anticipated the constitutional questions regarding, for example, school desegregation, reproductive rights, gay rights, the essential values behind those questions can be discerned in the constitution.

We then discussed the Supreme Court and whether it is still acting in a non-partisan fashion as the constitutional framers envisioned, or should we try and “fix” the Supreme Court by increasing the number of justices or limiting the term each justice serves? Even though the Supreme Court is currently lined up more conservatively, the justices still make decisions based on their interpretation of the law, and sometimes that interpretation goes against how you would think they are politically aligned. (Chief Justice Roberts’ decisions on the ACA and on the census questions are examples – but there have been examples like that throughout our judicial history.) If we allowed presidents to increase the number of justices on the court, each president would want to appoint enough justices to overcome what they believe is a political minority on the court, but then where would it stop? Having life tenure insures the independence of the judiciary. If Supreme Court justices knew they would have to leave the court after a certain number of years, they might position themselves for their next “gig” while still on the court, which could sway their rulings and affect their independence.

Finally, we tackled the question: are we currently experiencing a “Constitutional Crisis”? It is not a constitutional crisis to have disputes over the meaning of the constitution. We are meant to always be debating the values of the constitution. It is when our political disputes are settled with violence, such as the Civil War, Reconstruction, the race riots in the 1920s, and bringing in the National Guard to enforce desegregation, that we experience a constitutional crisis.

There were many great questions raised by the audience, and stimulating discussions were engaged in, after Jed’s formal presentation.

Submitted by Frieda Dweck

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