Tuesday, April 20, 2010

Forbath on Liberals, History and the Court

The legal historian William Forbath, University of Texas Law School, weighs in on the liberals, history and the Supreme Court in an op-ed, The Framers and Us: How Not to Use History to Argue about the Constitution and the Supreme Court, on the on-line Politico. He asks:
Why is it that conservatives are winning the national debate about the Supreme Court and the Constitution? And what can liberals do about it? Why can't liberal Supreme Court nominees, senators, and commentators make a stronger case for their vision of the Constitution and the role of judges in enforcing it? Part of the answer has to do with how each side uses history. Conservative judges use history to claim that when they strike down a law, they are merely applying the "original understanding" or "intentions" of the framers of the Constitution. This is bunk. But it is reassuring. It enables conservatives on and off the Court to claim that what liberal judges do is something different and illegitimate. Liberals are "judicial activists." When liberal judges strike down a law, they are "making up" new law. They are "betraying" the Founding Fathers. This is also bunk. Conservative and liberal judges alike bring their own present-day values and convictions to bear on interpreting and applying the Constitution. Conservatives are wrong to deny it. But they are right that appealing to history and "keeping faith with the past" is an indispensable part of our constitutional tradition - and one that helps mobilize popular support behind the constitutional commitments a judge, lawmaker, or citizen may prize. So, liberals need to get a better handle on the way to use history.