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1200 18th

Street, N.W., Suite 1002, Washington, D.C. 20036 www.theusconstitution.org

The Constitution at a Crossroads: The

Ideological Battle over the Meaning of the

Constitution

Introduction

Lyle Denniston recently described the tendency of the Roberts Court to take on the

broadest kind of controversy in cases brought to it.1

Decisions like the Courts 5-4 ruling in Citizens Unitedillustrate that the Roberts Court is

not only taking big cases and issuing sweeping rulings, it is also splitting sharply along

ideological lines on important questions about the meaning of our founding document. That is

the focus ofThe Constitution at a Crossroads: The Ideological Battle over the Meaning of theConstitution, an attempt to map and describe the ideological battlegrounds on the Roberts

Court. Constitutional Accountability Center (CAC) will be releasing Crossroads chapter-by-

chapter over the next several months, beginning today with a set of three chapters on the

powers of the federal government, which should help set the stage for the ACA argument later

this month. Our plan is to release a dozen or so more chapters over the course of the spring,

as the Court races toward the end of its October 2011 Term. After the Court completes its

work, we will spend the summer editing, revising and compiling Crossroads into a single

document for release in the early fall, timed to coincide with the celebration of the 225th

Anniversary of the ratification of the Constitution and the opening of the Courts October 2012Term.

From Citizens United v. FEC, in which the

Court expanded the case on its own motion, scheduled a second argument, and then issued a

sweeping ruling discarding prior case law, to the Affordable Care Act (ACA) cases about to be

argued, in which the Court decided to hear just about every claim presented to it including

claims unanimously rejected by the lower courts and scheduled six hours of argument time

over three days, the Court under Chief Justice John Roberts has put itself at the center of some

of the most important political controversies of our day.

1Lyle Denniston,Argument Recap: Downhill, from the start, Scotusblog, February 28th, 2012

(http://www.scotusblog.com/2012/02/argument-recap-downhill-from-the-start/#more-139919)

http://www.scotusblog.com/2012/02/argument-recap-downhill-from-the-start/#more-139919http://www.scotusblog.com/2012/02/argument-recap-downhill-from-the-start/#more-139919http://www.scotusblog.com/2012/02/argument-recap-downhill-from-the-start/#more-139919http://www.scotusblog.com/2012/02/argument-recap-downhill-from-the-start/#more-139919

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Crossroads is not the first attempt to map the ideological divisions on the Supreme

Court. In 1988, in the wake of the decisive defeat of the nomination of Robert Bork to the

Supreme Court and in the run-up to an election that seemed destined to determine the

direction of the Court for a generation to come, the Reagan Justice Department released a

series of reports that highlighted substantial differences of opinion over the judicial role incontemporary society. The most famous of these reports, entitled The Constitution in the Year

2000, highlighted fifteen areas of constitutional law likely to be decided by the Supreme Court

over the intervening years, and the alternative roads down which the Court might travel over

this time.

Twenty four years later, the Court remains precariously balanced between progressive

and conservative wings with radically different visions of the road ahead in constitutional law,

making 2012 just as important as 1988 in terms of the Supreme Courts future. But, looking

back at these Reagan Era reports, it is also startling how much has changed in the debate over

the Constitution. Part of this, of course, is simply a reflection of the fact that the Court has

decided many of the issues identified in The Constitution in the Year 2000, sometimes traveling

down the conservative road, other times taking a more progressive path.

But more important, the terms of the debate itself have changed dramatically. The

Constitution in the Year 2000 described the ideological division on the Court as mainly about

judicial method interpretivism vs. non-interpretivism or strict interpretation vs. liberal

interpretation or commitment to original meaning vs. commitment to an evolving constitution

-- and about the judicial role in contemporary society. Whether or not those terms accurately

described the ideological battleground on the Court in 1988, they certainly do not accuratelydescribe the major battlegrounds today. In cases ranging from Citizens Unitedto Heller v.

District of Columbia, the Courts landmark Second Amendment ruling, the Courts ideological

blocs are not fighting about whether the Constitution is living or dead: they are fighting about

what it means.

For this reason, the stakes in this fight are higher in 2012 than they were in 1988. Were

no longer fighting about judicial method. The Constitution itself is at a crossroads.

Several disclaimers and explanatory notes are appropriate at the outset of this

endeavor. The first is that we will not even attempt in Crossroads to cover every importanttopic of constitutional law or even every area in which the Supreme Court is ideologically

divided. We have tried to select the most important areas of the law in which the ideological

divide on the Court is most significant and pronounced, but that selection process is inherently

subjective and we will not cover some topics that justifiably could be included.

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Second, a few words about balance. One of the most striking, and least successful,

aspects ofThe Constitution in the Year 2000 was the assertion by the Reagan Justice

Department that it was setting forth the ideological debates on the Court in the most objective

possible manner. While that report did strain toward objectivity in certain places, no one who

read the full report was fooled into thinking that the Department had abandoned theconservative positions it had taken on many of those topics over the past eight years and was

suddenly agnostic about the outcomes. Similarly, CAC is an organization dedicated to the

progressive promise of the Constitutions text and history. We have strong and established

positions on many (though not all) of the debates discussed in Crosswords, and we do not deny

that fact or expect readers to be fooled into thinking otherwise.

That said, the very nature of this enterprise requires a degree of objectivity and

neutrality in terms of presenting the two sides of the ideological divide on the Court. These

ideological battles do not seem very interesting if one side is presented as a caricature, or not

presented at all. So we try in these chapters to present both sides of the story. Whether we

have struck this balance correctly is up to the readers to judge.

Finally, we note that because Crossroads will be released over time and then revised

and edited after the Court ends its Term in June, it is very much a work in progress. As a result,

we very much welcome comments and criticisms from our readers as we shape the final

product. It is our hope that Crossroads will, in a small way at least, enhance what should be a

grand celebration of the Constitutions 225th

anniversary in September 2012. After all, we fight

over the Constitution because it is the most important document in American life. We fight,

because it matters to all of us.