Keeping Faith with the Constitution

reviewed by Bo Links

Ever since the adoption of the United States Constitution, debate has raged over how to interpret it. The battle lines are well known. On one side of the aisle are strict constructionists and those committed to "original intent." On the other, we find judges who see the Constitution as a living document, expressing core concepts that can be adapted to new challenges.

In Keeping Faith with the Constitution, three law professors make an eloquent case for a mode of analysis they call "constitutional fidelity." Goodwin Liu (UC Berkeley), Pamela S. Karlan (Stanford University), and Christopher H. Schroeder (Duke University) have set their theory down in a compact tome--just 155 pages (not including notes, the index, or the Constitution itself, which appears at the end)--but they nevertheless make an important contribution to the ongoing dialogue about how to read and apply the words of our nation's charter.

The book's small size makes it a relatively easy read, all the better for informed readers to finish it and plunge into this timeless discussion. Equally important, the book cogently surveys key areas of the law in chapters such as "Freedom of Speech," "Liberty," "Separation of Powers," and "Criminal Justice," explaining along the way why the authors' theory makes the most sense.

What exactly is their theory? A blend of text, history, and vision. To be sure, they pay homage to constitutional text, for that is where constitutional controversies begin. But they proceed to make the case that a document laced with vague phrases such as "equal protection of the laws" and "due process" is, by its very nature, designed for adaptation to new and changing circumstances. In short, the authors posit that the Constitution is indeed alive with noble principles that judges are called upon to apply to challenging conditions the founding fathers could never imagine. What, for example, would Alexander Hamilton think of wiretapping conducted by government? Is that an unreasonable search? Questions such as these demand that a wise jurist not only read the Constitution but interpret it as well.

The authors make a cogent point that the simplicity of original intent is its very shortcoming. Constitutional analysis demands more, particularly when broad concepts like equal protection, due process, freedom of speech, and the values implicit in the Fourth Amendment are on the line.

One understated theme of Keeping Faith is that the truly great Supreme Court decisions have come when the justices have looked beyond mere words on parchment and given practical meaning to our Constitution's magnificent pronouncements. Examples are easy to cite; for openers, consider Marbury v. Madison (the text of the Constitution says nothing about the concept of judicial review) and Brown v. Board of Education. But when the Court retreats behind the wall of strict construction, it has fallen short of the Constitution's majestic promise. Examples here, too, are easy to cite, beginning with Dred Scott, Plessy v. Ferguson, and Lochner v. New York.

If Keeping Faith has a failing, it may be that the authors acknowledge, but do not emphasize a political reality: Ultimately, the party that wins at the polls controls who sits on the courts. And when it comes to appointing judges, their politics makes a difference--one that translates into decisions that profoundly affect the life of every American.

This book is hardly the last word on the subject. But Keeping Faith is a good companion for any inquisitive citizen--even a curious lawyer--who is looking to explore (or re-explore) the crucial framework within which great constitutional decisions are made

Bo Links is the legal editor of California Lawyer.

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