Georgia State Law professor Eric Segall marked Constitution Day by hosting a debate about the proper role of history in constitutional interpretation. They also discussed whether judges should be bound to, or persuaded by, the historical context during which the document was created.
Segall is the author of the books “Originalism as Faith” and “Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges.” He teaches Federal Courts and Constitutional Law I and II in the College of Law.
“If you look at our Constitution today, it would unrecognizable to people of 1787,” said Segall. “The Supreme Court applies vague principles to new facts.”
Christopher Green from the University of Mississippi and Rebecca Zietlow of the University of Toledo delivered arguments about constitutional interpretation and the Supreme Court.
Green kicked off the debate with a lecture on original meaning and the importance of language. He offered an example relating to the powers of the president that use the gender pronoun “he.” Green says that in the 1700s, “he” was gender neutral, so the use of “he” doesn’t necessarily mean that a woman couldn’t be in the oval office.
He said, “If you take the 18th century terms and apply 21st century language norms, it makes the Constitution more limiting.”
On the opposite end, Zietlow argued that much of the Constitution is vague and that it should be seen as an outline of basic principles. She believes that cultural shifts are much of what pushes constitutional interpretation in the courts, drawing on anti-slavery ideology as an example. Most abolitionists argued that enslavement was a violation of due process. Over the years, interpretation of due process has extended to the right to privacy and laws about excessive force.
“Constitutional meaning is developed not only within the courts, but also by constitutional advocacy,” said Zietlow. “We engage in constitutional interpretation by participation in movements. A political activist’s interpretation of the constitution, say in the context of abolishing slavery, can have a long-term impact.”
They concluded the debate with a conversation and Q&A session about whether the Supreme Court conflates constitutional meaning and constitutional law. They specifically cited the court's 1954 ruling in Brown v. Board, which found that segregated schools violated the 14th Amendment. Section 1 states that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." All three scholars agreed that the Court’s decision in Brown wasn’t enforced until political movements and federal legislation caught up with the Court’s opinion.
Georgia State University hosted events across all six campuses to commemorate Constitution Day. The national holiday celebrates the formation and signing of the U.S. Constitution on September 17, 1787. Thirty-nine men, including two Georgians, signed the Constitution. This was the first known Constitution Day event in the College of Law.