Keeping Faith with the Constitution (Inalienable Rights)

Two interrelated concepts are foundational to conservative legal thought in America: 'originalism' and 'strict construction.' Conservative jurists from the district level up to the Supreme Court believe that the founders' original intent at the time of ratification should guide decision making, and that only visible language in the Constitution is valid for interpretation. Liberal jurists have their own traditions, and in Keeping Faith with the Constitution, three prominent law professors explain what they are and why they are important. Goodwin Liu, Pam Karlan, and Chris Shroeder argue that constitutional interpretation requires adapting and re-adapting its broad principles to the conditions and challenges faced by successive generations. The question that properly guides interpretation is not 'How the Constitution would have been applied at the Founding?,' but rather how it should be applied today so that addresses America's changing social, cultural, intellectual, and economic conditions. They contend that their approach--which they call 'constitutional fidelity'--is more consistent with the history of America's constitutional practice, and more persuasive in explaining why the Constitution remains authoritative over two hundred years after the nation's founding. Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of American society.

After an opening section that covers the history of the Constitution and explains Constitutional interpretation, the authors focus on a number of key historical events: civil rights and gender rights, the New Deal, the War on Terror, privacy and sexuality, criminal law and procedure in the wake of the 1960s 'crime wave,' and voting rights and redistricting. They close by synthesizing the lessons from these episodes and looking toward the future.

Goodwin Liu is Associate Dean and Professor of Law at University of California, Berkeley.

Pamela S. Karlan is Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University.

Christopher H. Schroeder is Charles S. Murphy Professor of Law and Professor of Public Policy Studies at Duke University.