Constitution Day is a federally mandated holiday for law schools meant to ensure that those pursuing a legal education have the opportunity to reflect on what the Constitution truly means.
In honor of Constitution Day 2022, Professor Jamal Greene of Columbia Law School spoke to Drake students about interpreting the Constitution in modern times.
“Professor Greene is one of the nation’s experts on constitutional interpretation and has written a new book on the topic,” said Drake Director of Constitutional Law Mark Kende. “He has taken an interesting and novel approach.”
Greene’s lecture, titled “Saving the Constitution,” explored how to look at the Constitution in modern times. His message held that the Constitution is a guideline for self-government, though we often think of it as a reflection of the majority.
Professor Greene argued against this view by speaking on the lack of opinions represented in the creation of the Constitution. In 1787, only white male property owners had a say in government, so only white male property owners had a say in the creation of the Constitution. The Constitution is therefore adverse to the interest of those excluded from political participation.
Greene argues that majority support for the Constitution isn’t possible due to exclusionary provisions that limit the influence of minorities and women. Therefore, the perspectives of marginalized groups must be taken into account when analyzing the Constitution.
Greene also presented different ways to interpret the Constitution, such as originalism and minimalism. Originalism interprets the Constitution as it would have been understood when it was written, while minimalism is an interpretation that is case-specific and small.
“When you interpret from a certain lens, originalism or minimalism, no matter how hard you try they’re always going to be on the margins,” said Meghan Leto, Administrative Assistant for Drake’s Constitutional Law Center. “It is important to encapsulate everyone in their complexity. I like the idea of the nonbinary model to interpretation to make it a more complex model. It places the people that it affects into perspective and makes it a more humanized document.”
Professor Greene described amendments as ways that a constitution can respond to changes in the values, commitments and demands of the nation’s peoples. An ideal constitution would be both agreed upon by the majority and easily amenable. Many modern constitutions are designed this way, but the U.S. does not amend its Constitution very often due to it being a complex process.
According to Greene, politically empowered dissenters simply have too many opportunities to exercise vetoes in the US system for the current amendment process to work, which leads to a minimally-amended Constitution that does not reflect modern values.
“I think, in a lot of ways, as Professor Greene stated, the Constitution doesn’t always properly address how we should answer those questions and/or just is silent on the issue,” second-year law student Becca Coleman said. “I think being critical of how you analyze and interpret the Constitution is going to be very necessary in terms of moving forward as a country.”
Greene also addressed how Constitutional rights are often viewed as absolute in the United States, and once one is identified as having a right, they believe they should automatically win. In addition, Americans tend to prioritize the rights they value due to their individual experiences and not look beyond those rights.
Professor Greene went on to explain that rights are currently protected by the judicial system instead of the legislative system. Passing laws is a powerful way to pursue rights, but Americans tend to believe that their rights are protected by a judge. Rights therefore become questions regarding the letter of the law instead of a moral imperative.
“I liked what he thought about judicial strategies. What he was advocating for in terms of different judicial interpretations of written documents will be very relevant when any of us are practicing,” Coleman said. “A lot of arguments you see before courts today are how laws should be interpreted or how to advocate best for clients in terms of an interpretation that you think would be advantageous, and so you can take a lot of that in daily practice of law.”
Greene concluded his lecture with the point that reflecting on the Constitution often allows Americans to continue to self-govern in a way that reflects the majority and that the country must provide an avenue in which politics can influence constitutional law.