August 21, 2012
JURIST Special Guest Columnist Michael Serota of Georgetown Law School's Street Law Clinic says that engaging Americans on the topic of constitutional interpretation is central to the development of our country. His own experiences with students suggest that it is worth devoting resources to improving the public discourse over constitutional interpretation.
Here is a hard truth that many know, but few outside of the legal profession truly appreciate: personal preferences do not dictate constitutional meaning. Of course, there are substantial disagreements among judges over how best to interpret the Constitution, but these disagreements are primarily about process. Instead of arguing about which outcomes are more or less politically desirable, judges debate the analytical methods and types of evidence that should be used to derive meaning from the Constitution's provisions. And although some believe that the debate over methodology is merely a proxy for the debate over judicial outcomes, the decisions of our federal judiciary, viewed as a whole, suggest otherwise.
However, notwithstanding the legitimate methodological disagreements that exist in the judiciary, many of our politicians and talk show hosts often eschew analytical nuance for the "I believe it, so therefore it must be true" approach, treating constitutional interpretation as purely a matter of personal opinion. Trading discussion of interpretive methodology for platitudes such as "judicial activism" or "undemocratic," prominent commentators frequently seek justification for their own preferences rather than providing any substantive constitutional commentary. Not only is it dishonest, but it further entrenches the ideological divide in America and impedes an important discussion about how our Constitution should be interpreted.
This type of superficial approach is so deeply embedded in the media and in political rhetoric that the only way to overcome it is through the meaningful education of the American public on the topic of constitutional interpretation.
Now, some might argue that trumpeting a widespread constitutional theory revival movement sounds nice from the ivory tower, but lacks any realistic possibility of success. However, not only does this pessimism seem to guarantee the perpetuation of the status quo, but my own experience working with young people proves that it is perhaps misplaced.
Last spring, I worked with Berkeley Law's youth justice program, and had the opportunity to teach a one-hour seminar at a local public high school on the role of the judiciary. I delivered a short lecture to a diverse group of students ages 14-18 on the basic challenges and complexities of constitutional interpretation. Thirty minutes later, the students had taken over the discussion, and they began debating some of the foundational disagreements as to how judges should interpret our founding document.
The students intuitively picked up on issues such as the difficulties of discerning meaning from conflicting historical documents or from the actions of large groups, the costs and benefits of affording discretion to unelected judges in a democratic society, and the extent to which the Supreme Court should give effect to its own past interpretations of the Constitution. They struggled with developing a coherent approach to giving meaning to the Constitution's abstract phrases, such as "due process" and "equal protection."
Indeed, as the discussion gradually deepened, the students let go of their own preconceived notions of what they viewed as "totally unconstitutional," and began to wrestle with the legal concepts themselves. Not only was it exciting to watch, but it left me feeling that if this much could be accomplished in one hour with high school students, it is worth devoting resources to improving the public discourse over constitutional interpretation. With a little non-partisan educational outreach from our nation's lawyers, judges, and academics, there is substantial room for public engagement on this essential topic.
Similar experiences I have had recently working with young people through Georgetown Law School's Street Law Clinic have reaffirmed that one need not attend law school, or even college, to appreciate the challenges of constitutional interpretation in a diverse society filled with competing viewpoints and belief systems. But to do so, the public must be willing to set aside personal preferences and join the debate on its own terms; that is, we must be willing to engage in a discussion about the process of interpretation rather than solely focusing on the results themselves.
In order for this initiative to succeed, the focus must be on teaching the public how to think about these problems, rather than what to think about them. A seismic shift in our culture of constitutional debate will not happen overnight, but we must start somewhere, and with time, our public discussion will hopefully evolve into a thoughtful, informative, and useful dialogue that moves America forward.
JURIST - Forum, Nov. 18, 2010
(Reproduced with permission)
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