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Constitution Alive And Well Amid Political Firestorms

Publication Date: 
September 20, 2009
Oakland Tribune
Josh Richman

Professor Pamela Karlan, co-author of "Keeping Faith with the Constitution," discusses the evolution of the U.S. Constitution with Josh Richman of the Oakland Tribune:

As the U.S. Constitution marks its 222nd birthday, two stalwart admirers, Cynthia Papermaster and Mimi Steel, praise the document and vigorously defend it against perceived attacks.

Though they differ greatly on who's staging the attacks.

Papermaster directs the National Accountability Action Network, a progressive coalition urging the prosecution of former Vice President Dick Cheney and other Bush administration officials for what they call constitutional and statutory violations mainly undertaken in the name of fighting terrorism.


Stanford law professor Pamela Karlan, co-author of the recently published "Keeping Faith with the Constitution," doesn't see the past century as a departure from the Constitution, but rather as the evolution — both through amendments and through the judiciary's interpretation — intended by the Founding Fathers.

"There have always been debates over what the scope of constitutional protections are and how much protection the Constitution does and doesn't give," she said. "We've been through lots of periods in American history where there's been quite heated debate over what the Constitution means, and this is one of those times."

The Progressive Era, the Great Depression and Franklin D. Roosevelt's New Deal meant "times had shifted in important ways that required us to interpret the document to respond to events," she said, just as "the rise of the national security state" has forced us to reconcile the Constitution with threats posed by terrorism.

"Our Constitution was always meant to take into account that this was going to be a country of changes and growth. The broad principles of the Constitution are capable of being adapted to the situations in which we find ourselves."


Choper noted the Bush administration cited World War II-era Supreme Court case law among justifications for anti-terror programs; Karlan noted people now raising constitutional challenges to health care reform are at odds with Supreme Court case law dating to the 1930s.

"But this isn't a paleological evolution in which things go only in one direction," Karlan added, citing eras in which free-speech rights, notions of egalitarianism and other constitutional principles have waxed and waned. "It's not as if constitutional interpretations have always been moving in one direction, it's a little less unidimensional than that."