Bench Memos

Goodwin Liu’s Keeping Faith with the Constitution—Part 1

I’ve read through Keeping Faith with the Constitution, the American Constitution Society publication (downloadable here) that Ninth Circuit nominee Goodwin Liu co-authored with fellow lefty law professors Pamela S. Karlan and Christopher H. Schroeder.  (For the sake of economy, I will refer in the remainder of this post only to Liu.)

The stated purpose of Keeping Faith is to “describe and defend” a “dynamic process of [constitutional] interpretation” that Liu labels “constitutional fidelity.”  “Interpreting the Constitution,” he argues, “requires adaptation of its broad principles to the conditions and challenges faced by successive generations.”  His interpretive approach draws on a variety of considerations:  original understandings, “the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.”  Such an approach, he asserts, is “richer than originalism …, more consistent with the history of our constitutional practice, and more persuasive in explaining why the Constitution remains authoritative over two hundred years after the nation’s founding.  Indeed, he claims, his approach “is what enables the American people to keep faith with the Constitution from one generation to the next.”  (p. 2)

If all this sounds tiresomely familiar, that’s because the tendentious and undescriptive label “constitutional fidelity” is just a rebranding of the same old “living Constitution” rhetoric that left-wing proponents of judicial activism have used to camouflage their constitutional inventions.  (There would seem to be an important lesson in the fact that the Left—er, I mean “liberals,” oops, now it’s “progressives”—manages to stigmatize every label it adopts.  Will it soon even ruin the term “fidelity”?) 

Indeed, it’s comical to see how Liu, in back-to-back paragraphs (p. 25), purports to distinguish his approach from that of “living Constitution” advocates.  The “living Constitution” approach, you see, understands the Constitution as “grow[ing] and evolv[ing] over time as the conditions, needs, and values of our society change” and contends that “such evolution is inherent to the constitutional design because the Framers intended the document to serve as a general charter for a growing nation and a changing world.”  That approach maintains that “constitutional interpretation must be informed by contemporary norms and circumstances, not simply by its original meaning.”  In supposed sharp contrast, the “constitutional fidelity” approach maintains that the Constitution must be interpreted “in light of the conditions and challenges faced by succeeding generations.”  Its words and principles must be interpreted “in ways that sustain their vitality over time.”  Judges must ask “how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society.”

If you, unlike me, somehow discern a meaningful iota of a difference between Liu’s description of the “living Constitution” approach and his description of “constitutional fidelity,” the rest of Keeping Faith—in which Liu defends the soundness of judicial inventions from Miranda to Roe v. Wade to Lawrence v. Texas—should demonstrate that any difference is meaningless in practice. 

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