Bench Memos

Pamela Harris: Constitutional Interpretation for Me, but Not for Thee

As I mentioned before, President Obama nominated Pamela Harris, a former member of the Obama administration, for lifetime tenure as a judge on the Fourth Circuit. (Here are Parts 12, and 3 of this series.) For a judicial nominee, Harris is unusually clear about her willingness to impose her political preferences as her interpretation of the Constitution. She sets out this willingness with crystal clarity in remarks during a couple panels from 2008 and 2009.

Back in 2008, Harris spoke on a panel where she basically admitted that she reads her contemporary political preferences into her view of the Constitution. Speaking on the issue of a “living constitution” on June 14, 2008, Harris said:

I just don’t think that any account of the Constitution that even seems to—even seems to—privilege the Constitution as it was originally ratified, or even what people remember as it was amended particularly during the Reconstruction period, I don’t think it’s consistent with the way most people do—and the way we should—think about the Constitution. Yes, the values, the principles, on some level of generality, are there at the beginning, but they take their meaning—and they should take their meaning—from what comes after. And most particularly, and this is my source of legitimacy, most particularly, from what the People do at these critical junctures—the civil rights movement, the women’s movement, the gay rights movement, when they reconstitute what it is we’re talking about when we talk about American constitutional tradition, when we say words like equality and liberty, when we change what they mean because what the people themselves have done.

I hesitate to comment on this paragraph at all because of how much it speaks for itself, but a few things are worth noting. First, she says the Constitution’s meaning comes not from what the People agreed on when they ratified the Constitution, but “from what comes after.” Second, the primary sources of constitutional “meaning” and “legitimacy” for Harris are social movements for which the Left claims a monopoly, not the actual text or history of the Constitution. Harris’s view of the Constitution, it seems, is not really legal at all; it’s just left-wing political theory as expressed in the onward march of history. For Harris to carry out her responsibilities as a judge, it seems, she would need to filter all constitutional interpretation through what she sees as the dominant “social movements” and then pick a winner.

If constitutional law is just high-level theorizing, though, then what relevance does the text hold? It’s not entirely clear, but Harris gives us some hints. From this quote, it appears that the text of the Constitution includes “values” and “principles” that are present at “some level of generality.” As all lawyers know, manipulating a principle’s level of generality is the simplest way to get the result you are looking for. Harris’s terminology suggests that she thinks such manipulability would be an ordinary part of interpreting the Constitution.

If there were any question about that, look at the last sentence of the above quote. She uses words like “equality” and “liberty” not as if they refer to inalienable rights identified in (say) a Declaration of Independence, but because “we change what they mean.” But who is “we?” 

Based on the context, it seems that “we” is anyone who prevails in some left-wing historical narrative of social movements. That’s not exactly a precise criterion. She continues: “And I just don’t find it satisfying—or even productive—to try to strain for some interpretive methodology that seems to cut those people and their sacrifices out of the constitutional discourse.”

Contextually, Harris seems to be saying that originalists “strain” to cut people and their sacrifices out of the constitutional discourse. But that’s not what originalists do at all, and if she thinks it is, she is completely out of touch with reality. Originalists look for what the Constitution’s text meant at the time it was enacted and then try to apply that meaning faithfully. Harris’s view of the Constitution, by contrast, requires judges to be amateur social anthropologists. Perhaps Harris needs to read more dissents by Justices Scalia and Thomas to find out what originalists do.

Approximately one year later, Harris told another panel:

And I always feel unapologetically, you know, left to my own devices, my own best reading of the Constitution, it’s pretty close to where I am. Because I think the Constitution is a profoundly progressive document. I think it’s born of a progressive impulse. I think particularly, as amended in the Reconstruction era, it is committed to principles like equality and liberty and individual dignity, and I’m a profoundly liberal person so we [the Constitution and I] match up pretty well. I make no apologies for that. I think it’s a great document. And I think as amended, and as interpreted, and the method, with the people of good will, applying the methodology that’s talked about in this book [Keeping Faith With The Constitution], it is something we can all be really proud of.

Who could disagree that the Reconstruction Amendments are about liberty and the equal protection of the laws? Those words are in the text of the 14th Amendment. But it’s disturbing that Harris can, without a bit of embarrassment, project her own “progressive” and “profoundly liberal” views back into history and declare the Constitution a “profoundly progressive document.”

To be sure, the Constitution marked a bold step into the world of democratic self-governance. But it did so by enacting into law a series of structures, procedures, and constraints that were designed to restrain democracy, and that could only be changed through the amendment process, not through judicial interpretation. Harris’s Constitution, by contrast, could be changed by implication as social movements succeed politically without ever passing a constitutional amendment. Goodness, if that’s how we’re interpreting legal documents nowadays, I have some ideas about how to stop making payments on my mortgage.

Finally, look again at the last sentence of the last quote: “And I think as amended, and as interpreted, and the method, with the people of good will, applying the methodology that’s talked about in this book, [the Constitution] is something we can all be really proud of.”

There’s something profoundly sad about a potential federal judge who can only be proud of the Constitution if it’s interpreted how she wants it to be interpreted by people who share her politics. One would hope that as an American, she would be proud of the Constitution simply because it’s hers.


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