Bench Memos

Pamela Harris: Oh, The Constitution It Is A-Changing

This is Part 5 in the series about Pamela Harris, President Obama’s latest appointee to the Fourth Circuit. (Here are Parts 1, 2, 3 and 4.) As I mentioned in post four, Harris is outspoken about her willingness to import a modern political agenda into her interpretation of the law and the Constitution.

Harris’s belief in an ever-changing Constitution goes deep. As part of a 2009 panel, Harris said the following:

So I think we do start at a point of some agreement with originalists, in the importance of text and history. But that said, I also think there very badly needs to be a fuller discussion about where you go after that, or in addition to that. About other valid sources of constitutional meaning, things discussed in the excerpts of the volume like constitutional structure, constitutional precedent, the consequences of constitutional rulings, both on the ground and for continuity of legal discourse, and things like values and norms that are rooted in the Constitution or part of constitutional heritage, but whose meaning may change over time, whose application may change over time in response to changed understandings about what a word like equality really means. That’s the kind of discussion that we’re hoping to promote with this volume.

Harris isn’t content to interpret within the bounds of the Constitution’s text and history and traditional legal methods, which would tell her most of what she needs to know about constitutional structure; she wants judges to look beyond the text—far beyond—to these other “valid sources of constitutional meaning.” That creates a truck-sized hole for Harris to bring her own views into constitutional interpretation.

Not only does Harris identify the Constitution with her own political views, she also thinks that other judges should change their constitutional views based on popular sentiment. Of Justice Kennedy, for instance, she has said that his views on same-sex marriage “should be changing the same way the whole country is changing.” She said elsewhere that “I think the tide of history is going one way” on same-sex marriage, and “I don’t think the justices want to be on the wrong side of that.”

But if Harris’s constitution is just a sword to aid the enactment of popular sentiment, and indeed, at the leading edge of that sentiment, that constitution cannot simultaneously channel that energy into counterbalancing political structures. Harris’s interpretation of the Constitution is so alien, so completely detached from its actual text and history (much less the understanding reflected in the Federalist Papers) that it would set up serious obstacles to Harris’s impartial consideration of constitutional cases.

On the other hand, nobody should be surprised that a nominee who believes the Warren Court was too conservative is not within the mainstream.

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