Progressive Constitutionalism, Originalism, and the Significance of Landmark Decisions in Evaluating Constitutional Theory
William P. Marshall
University of North Carolina (UNC) at Chapel Hill - School of Law
November 1, 2011
Ohio State Law Journal, Vol. 72, No. 4, 2011
UNC Legal Studies Research Paper No. 1952594
West Virginia State Board of Education v. Barnette, Brown v. Board of Education, Gideon v. Wainwright, and Reynolds v. Sims are among the most renowned cases in American history. Although controversial when decided, these cases are now considered part of the essential fabric of American constitutional law. Like the Constitution itself, these decisions have iconic stature in our political culture. And like the Constitution itself, they are celebrated as hallmarks of American liberty by both the left and the right.
Barnette, Brown, Gideon, and Reynolds, however, share another trait. They are products of progressive constitutionalism. They could not have been decided the way they were had the Court in those cases adhered to conservative theories of constitutional interpretation such as originalism or judicial restraint. Barnette, Brown, Gideon, and Reynolds therefore raise potential challenges to the viability of conservative constitutional theory. Generally, the validity of an interpretive theory should rest on its internal merits, not its external results. But if a particular theory cannot explain decisions that are universally considered to be both correct and integral to the American system of justice, the question necessarily arises as to whether there is something lacking in that theoretical account.
This Article explores the significance of Barnette, Brown, Gideon, and Reynolds as a basis for evaluating theories of progressive and conservative constitutionalism as methods of constitutional interpretation, focusing most specifically on the relationship between these decisions and originalism. Does the universal acceptance of these cases as hallmarks of American liberty suggest that a method of constitutional interpretation, such as originalism, that rejects these decisions is thereby inherently flawed?
Number of Pages in PDF File: 26Accepted Paper Series
Date posted: November 2, 2011
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