A Constitution for All of Us

Over the past year, court after court has recognized that state bans on same-sex marriage violate the Constitution’s fundamental guarantees of equal protection and liberty.  These decisions may feel very 21st Century to some, but they are firmly rooted in the 19th Century and the adoption of the Fourteenth Amendment.  The Fourteenth Amendment protects the principles of liberty, due process of law, and equal protection of the laws.  Indeed, as the Tenth Circuit Court of Appeals recently recognized, adoption of the Fourteenth Amendment was the culmination of “[h]istorical challenges to these principles . . . nearly one-and-a-half centuries ago.”  As that court also recognized, “[t]hose very principles are at issue yet again” in marriage equality cases. 

Looking to the text and history of the Constitution to understand its meaning is nothing new.  But ironically, it’s an approach that was popularized by conservatives, most notably Justice Scalia, who last year excoriated his colleagues for striking down the provision of federal law that defined marriage as solely between a man and a woman.  For years, lawyers and academics on the left pushed back against this approach, arguing instead for a “living Constitution” that changes and evolves over time.  But progressives have started to realize that the Constitution doesn’t need to evolve because the Constitution, particularly as amended during Reconstruction, is fundamentally a progressive document

What this means is that conservatives can’t claim exclusive ownership of the text and history of the Constitution anymore.  In fact, the Supreme Court’s relatively liberal justices have more and more begun joining their conservative colleagues in embracing the Constitution’s text and history.  At her Supreme Court confirmation hearing, then-Judge Sonia Sotomayor described the Constitution as “immutable” and explained that one must look to the “words” of the Constitution in interpreting it; as she stated, the document is “timeless[] by the expression of what it says.”  Then-Solicitor General Elena Kagan said something similar at her own Supreme Court confirmation hearing, calling the Constitution an “enduring document[],” one that should be interpreted by “look[ing] to text, to history, to traditions, to precedent, certainly, and to the principles embodied in that precedent.”

We see this commitment to the Constitution’s text and history in the Justices’ opinions, as well.  Most recently, in NLRB v. Canning, Justice Breyer laid claim to the Constitution’s text and history in adopting a broad interpretation of the power conferred by the Recess Appointments Clause.  This was a big deal.  Justice Breyer is so well known for not giving priority to constitutional text and history that numerous commentators could only see Canning through their preexisting frame—Breyer vs Scalia; pragmatism versus originalism—and thus they proclaimed the opinion a defeat for text and history.  Hardly.  Justice Breyer’s opinion for the Court started with the Framers, and it ended there, concluding with a quote from Alexander Hamilton.  And this wasn’t even the only time this past Term that Justice Breyer recognized the importance of Framing-era history.  In his dissent in McCutcheon v. FEC, explaining why the First Amendment poses no bar to aggregate contribution limits, Justice Breyer looked to the Framers and the reason they adopted the First Amendment in the first place.

Justice Ginsburg, too, has embraced the Constitution’s text and history, even proclaiming herself an “originalist.”  For example, in her concurrence in the Affordable Care Act case (NFIB v. Sebelius), Justice Ginsburg relied on an important, but previously overlooked, piece of Framing-era history that sheds light on the scope of federal power: Resolution VI, which instructed the Committee charged with crafting the federal government’s enumerated powers that Congress was to have the power to enact laws “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.”  More recently, in her dissent in Shelby County v. Holder, Justice Ginsburg explained how the Court’s invalidation of a key provision of the Voting Rights Act made no sense in light of the Constitution’s text and history.  As Justice Ginsburg explained, the Reconstruction Framers gave Congress the power and authority to protect the nation’s citizens from violations of their rights by the States by authorizing transformative new federal statutes to uproot “all vestiges of unfreedom and inequality.”

Progressives off the bench shouldn’t run from this development.  Rather, they should embrace it.  As constitutional law scholar Jack Balkin recently noted, conservatives’ claims that “they alone are faithful to the framers’ vision” are “hollow, based on a stunted and partisan view of America’s past.”  In fact, constitutional text and history often lead to progressive outcomes.  Consider the Supreme Court’s decision this year in Riley v. California, in which the Court unanimously held that warrantless cell phone searches following arrest violate the Fourth Amendment absent exigent circumstances.  Writing for the Court, Chief Justice Roberts explained that the Court’s decision was informed by the clear parallels between these searches and the abusive use of “general warrants” that helped give birth to our nation.  Consider also the Court’s decision this year in EPA v. EME Homer, in which the Court upheld the EPA’s attempt to address interstate air pollution because, in part, this is precisely the type of national problem the Framers designed our federal government to address.  Finally, consider too the Court’s decision last year in Arizona v. Inter Tribal Council of Arizona, Inc., in which the Court looked to the unique language of the Elections Clause and held that it gives Congress broad power to preempt state laws in order to protect the right to vote in federal elections. 

To be sure, people can disagree about where the Constitution’s text and history lead in any given case, so progressives may not win every battle.  But they shouldn’t shy away from this fight.  The Constitution’s text and history are on our side.

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