Karlan Pamela S. - Keeping Faith with the Constitution

KEEPING FAITH WITH THE CONSTITUTION

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SERIES EDITOR
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Lee C. Bollinger
P RESIDENT
C OLUMBIA U NIVERSITY

Alan M. Dershowitz
F ELIX F RANKFURTER P ROFESSOR OF L AW H ARVARD L AW S CHOOL

Richard A. Epstein
J AMES P ARKER H ALL D ISTINGUISHED S ERVICE P ROFESSOR U NIVERSITY OF C HICAGO L AW S CHOOL

Pamela S. Karlan
K ENNETH AND H ARLE M ONTGOMERY P ROFESSOR OF P UBLIC I NTEREST L AW S TANFORD L AW S CHOOL

Alexander Keyssar
M ATTHEW W. S TIRLING , J R ., P ROFESSOR OF H ISTORY AND S OCIAL P OLICY JFK S CHOOL OF G OVERNMENT , H ARVARD U NIVERSITY

Michael J. Klarman
J AMES M ONROE D ISTINGUISHED P ROFESSOR OF L AW AND H ISTORY U NIVERSITY OF V IRGINIA

Larry D. Kramer
R ICHARD E. L ANG P ROFESSOR OF L AW AND D EAN S TANFORD L AW S CHOOL

Lawrence Lessig
P ROFESSOR OF L AW H ARVARD L AW S CHOOL

Michael W. McConnell
R ICHARD AND F RANCES M ALLERY P ROFESSOR OF L AW S TANFORD L AW S CHOOL

Martha C. Nussbaum
E RNST F REUND D ISTINGUISHED S ERVICE P ROFESSOR , P HILOSOPHY , L AW , D IVINITY , S OUTH A SIAN S TUDIES THE U NIVERSITY OF C HICAGO

Richard A. Posner
J UDGE U.S. COURT OF A PPEALS FOR THE S EVENTH C IRCUIT

Jack N. Rakove
W ILLIAM R OBERTSON C OE P ROFESSOR OF H ISTORY AND A MERICAN S TUDIES S TANFORD U NIVERSITY

Geoffrey R. Stone
H ARRY K LAVEN , J R ., D ISTINGUISHED S ERVICE P ROFESSOR U NIVERSITY OF C HICAGO L AW S CHOOL

Kathleen M. Sullivan
S TANLEY M ORRISON P ROFESSOR OF L AW AND F ORMER D EAN S TANFORD L AW S CHOOL

Laurence H. Tribe CARL M. L OEB
U NIVERSITY P ROFESSOR OF L AW H ARVARD L AW S CHOOL

Mark V. Tushnet
W ILLIAM N ELSON C ROMWELL P ROFESSOR OF L AW H ARVARD L AW S CHOOL

G EOFFREY S TONE AND O XFORD U NIVERSITY P RESS G RATEFULLY A CKNOWLEDGE THE I NTEREST AND S UPPORT OF THE F OLLOWING O RGANIZATIONS IN THE I NALIENABLE R IGHTS S ERIES : T HE ALA; T HE C HICAGO H UMANITIES F ESTIVAL ; T HE A MERICAN B AR A SSOCIATION ; T HE N ATIONAL C ONSTITUTION C ENTER ; T HE N ATIONAL A RCHIVES .

Goodwin Liu
Pamela S. Karlan
Christopher H. Schroeder

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Copyright 2010 by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder.

Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016
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All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press.

Library of Congress Cataloging-in-Publication Data
Liu, Goodwin.
Keeping faith with the Constitution / Goodwin Liu, Pamela S. Karlan,
Christopher H. Schroeder.
p. cm. (Inalienable rights series)
Includes bibliographical references and index.
ISBN 978-0-19-973877-9
1. Constitutional lawUnited States. I. Karlan, Pamela S.
II. Schroeder, Christopher H. III. Title.
KF4550.Z9L578 2010
342.7302dc22 2009047949

1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper

I N WRITING THIS book, we have benefited from the guidance and wisdom of many people. For insightful comments on earlier drafts, we thank Judy Appelbaum, Jack Balkin, Lisa Brown, Rebecca Brown, David Lyle, Robert Gordon, Pam Harris, Doug Kendall, Bill Marshall, Martha Minow, John Payton, Andy Pincus, Robert Post, Ted Shaw, Paul Smith, Geoffrey Stone, David Strauss, and Meera Trehan. We are also grateful for the help of Nicole Ries, who provided superb research assistance and editing, and Meredith Dearborn, who sharpened the text with careful editing. Moreover, we could not have completed this project without the encouragement of the American Constitution Society, which published an initial version of this book in April 2009.

More broadly, we are indebted to the many scholars, past and present, whose ideas have shaped the debate over constitutional interpretation for decades. Our work builds on intellectual foundations laid by many friends and colleagues whom we respect and admire. Finally, we are indebted to the many citizens, elected officials, and judges who have worked throughout our history to ensure that we keep faith with the Constitution. Without them, this book quite literally could not have been written.

The views expressed in this book and any errors are of course our own.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights .

The Declaration of Independence

H OW DO WE keep faith with the Constitution? This question has haunted constitutional lawyers since the earliest days of judicial review. As judges give meaning to the often vague generalities of the Constitution, how can they ensure that they protect our essential constitutional liberties in an ever-changing society, without usurping the legitimate authority of the states or of the democratically elected branches of the federal government?

This challenge has vexed judges and scholars for more than two hundred yearsperhaps most emphatically over the past four decades. By the end of the 1960s, conservatives were convinced that the justices of the Warren Court had run amuck and had flagrantly used the cover of constitutional law to impose their own liberal version of the good society on the nation. Where, they asked, did the Constitution require the exclusionary rule, Miranda warnings, one personone vote, the prohibition of school prayer, the protection of sexually explicit expression, or racial integration? The criticism became even more fervent in the 1970s, after the Burger Court announced a constitutional right to abortion. Conservative critics railed that the justices had manipulated the text and design of the Constitution in order to smuggle their own personal value judgments into constitutional law.