Scholars honor Constitution with debate over Supreme Court interpretation



by Cynthia Price
Legal News

It was clear that, though the two professors who entered into last Thursday’s Constitution-Day-related debate espoused very different political and jurisprudence philosophies, they both cared deeply about the Constitution.

The Hauenstein Center for Presidential Studies, housed at Grand Valley State University, along with the Koeze Business Ethics Initiative, the Gerald R. Ford Presidential Foundation, hosted a debate at the Ford Museum in honor of Constitution Day.

Though the official federally-designated Constitution Day, which accords with the adoption and signing of the U.S. Constitution in 1787, is on Sept. 17, there is variation in when it is celebrated – especially when it falls on a Sunday as it did this year.

There was a full house for the debate, which featured John McGinnis, the George C. Dix Professor of Constitutional Law at Northwestern University Law School, versus Adrian College Associate Professor of Criminal Justice and Jurisprudence Nathan Goetting.

Professor Victoria Vuletich of Western Michigan University-Cooley Law School moderated the debate with a light hand.

The scholars narrowed down the broad topic of “the Constitution” to a discussion of what is the best way for the United States Supreme Court to make judgments about what the Constitution means.

McGinnis, a Harvard College and Harvard Law School graduate who also received an MA from Balliol College, Oxford, in philosophy and theology, supported the concept of orignalism.

“Originalism” encompasses more than one approach, and McGinnis seemed to subscribe to the sense of honing in on how reasonable members of society would have understood the Constitution – a philosophy closedly associated with the late Supreme Court Justice Antonin Scalia. – and not to that of trying to figure out the original intent of the enactors.

“The idea that the lodestar of justice consists of determining the meaning of the Constitution as it was understood by those who enacted it is a difficult one – but I think asking what a reasonable member of the public thought the Constitution meant, that binds us today,” said McGinnis, who co-authored the book Originalism and the Good Constitution.

Goetting, who also has an MA in philosophy, his from Western Michigan University, as well as a law degree from WMU-Cooley, was a proponent of the “Living Constitution” school of thought.

He countered McGinnis by saying, “Justice Scalia famously said the Constitution is ‘dead, dead, dead.’ The problem with that is, a dead Constitution doesn’t do anyone any good. In light of cultural shifts, every journey into originalism is a journey into an increasingly distant past.  The type of justice I admire is that of legal realists, who believe the Constitution should be used as a vehicle to actually help people.”

A past visiting professor at Grand Valley State University, Goetting is the editor of The National Lawyers Guild Review, which seeks “to publish lively, insightful articles that address and respond to the interests and needs of the progressive and activist communities.”

Very important to Goetting was the notion that the specifics of what was covered in the Constitution are less important than the overriding principles expressed. “The framers understood that the world changes. That’s why they wrote it based on principles instead of a code that needed always to be amended,” he stated.

That touched on one of the themes about which McGinnis seemed to feel very strongly – expressed at the debate and in his book:?if the Court had not interpreted the Constitution so “freely,” as the description of Originalism and the Good Constitution has it, the Article V amendment process would have been used more often to reflect contemporary concerns, which would indeed make it a living document.

Though McGinnis felt that the only rights granted were those specifically listed in the Bill of Rights, Goetting brought up Griswold v. Connecticut, with Justice William O. Douglas’s opinion inferring that the right to privacy (and freedom from government intrusion) was inherent in the “penumbra” of other specified rights. Goetting contended that this was one very good way to get around the problem posed by so many situtations arising that the writers of the Constitution could not be expected to foresee.

Next up in the Hauenstein Center event series is the Oct. 3 lecture on “Character and the Presidency” by David Brooks and Ronald C. White, but it is sold out, so it might be better to set one’s sights on the Oct. 13 Wheelhouse Talk by Dan Varner, “Committed Leadership in Detroit.” by Dan Vather.

The Hauenstein Center is proud to announce our second biennial Character and the Presidency event, in partnership with The Peter F. Secchia Family, the Meijer Foundation, the Gerald R. Ford Presidential Foundation, and the Gerald R. Ford Presidential Library & Museum.

The event will feature David Brooks, distinguished political commentator and New York Times columnist, alongside bestselling presidential historian Ronald C. White, for a conversation about the past, present, and future of the American presidency. No subject could be more timely and important for the promotion of ethical, effective leadership in the twenty-first century.Ambassador Peter Secchia will address why he felt the need to initiate a hard-hitting series on character in the presidency.