Top legal minds unite around the Constitution at Ath event

What brings together two prominent Constitutional scholars from opposite sides of the political spectrum?

For Akhil Amar and Steven Calabresi, it’s the jurisprudential theory, originalism. The two found common ground during their recent virtual Athenaeum discussion, sponsored by the Salvatori Center’s Lofgren Program in American Constitutionalism. Moderated by CMC Professor George Thomas, the discussion centered on answering the question, “Should We Interpret the Constitution Based on its Original Meaning?”

Ath fellow Chris Agard ’21, introduced the Zoom audience to Amar, who teaches constitutional law at Yale Law School, and to Calabresi, who is co-founder of the Federalist Society, a professor at Northwestern University’s Pritzker School of Law, and a visiting professor at Yale Law School.

Amar, who said he consistently votes Democrat, and Calabresi, a regular Republican voter, both advocated for originalism as the most sensible method for interpreting the 231-year-old Constitution, which forms the framework for our democratic government.

“While we might vote differently on election day, we end up converging on the original meaning, the text, and structure of the Constitution,” Amar said.

Amar is the author of The Constitution Today: Timeless Lessons for the Issues of our Era. In addition, Amar’s work has been cited by the U.S. Supreme Court in more than 40 cases. He clerked for U.S. Supreme Court Justice Stephen Breyer when Breyer was a judge on the First Circuit Court of Appeals.

“While we might vote differently on election day, we end up converging on the original meaning, the text, and structure of the Constitution,” Amar said.

Amar is the author of The Constitution Today: Timeless Lessons for the Issues of our Era. In addition, Amar’s work has been cited by the U.S. Supreme Court in more than 40 cases. He clerked for U.S. Supreme Court Justice Stephen Breyer when Breyer was a judge on the First Circuit Court of Appeals.

Calabresi served in the Reagan and first Bush Administrations from 1985 to 1990. He also clerked for U.S. Supreme Court Justice Antonin Scalia, who was a fierce proponent of originalism.

Amar and Calabresi are friends, and were classmates at Yale -- where they now teach a Yale Law School seminar on originalism -- and their Ath interaction reflected a warm collegiality, despite their acknowledged deep political differences.

At the start of the discussion, Thomas, director of the Salvatori Center, said he was inspired to bring the two together for a conversation while reading the latest edition of Scalia’s “A Matter of Interpretation,” to which Amar contributed the introduction and Calabresi the afterword.

Amar launched his argument that Americans can find a focal point in the Constitution because, he said, “In general, what the Constitution says and means is sensible and can provide a basis for all of us in a very divided nation to come together.”  He then made his way through the Bill of Rights, applying a brief originalist analysis of the text to each Amendment.

When it was Calabresi’s turn, he acknowledged that he agreed with Amar’s Bill of Rights analysis. “There’s a value to applying originalism and seeing how it works in practice. I’ve learned a lot from Akhil about the text of the Constitution.”

He added: “If Akhil and I were on the Supreme Court together, we’d agree about 98 percent of the time.”

Calabresi then extolled the Constitution as “the best in the world, in my opinion. It’s also the shortest. You can carry it in your pocket!” he said, whipping out his own pocket-sized version to show to the audience. “Both its excellence and brevity commend it to us.”

“The Constitution gets a lot of things right,” Calabresi continued, while noting that as a comparative Constitutional law scholar, who’s studied the constitutions of other countries, he views its longevity as also notable. “The average age of a constitution is 19 years. It’s remarkable that it has lasted this long. It’s been brilliantly revised…as amended it is a superb document,” he said.

But given its age and deliberate open-endedness, he asked, “How do we think about interpreting it and what method makes sense?”

Calabresi acknowledged that applying the originalist theory can be challenging especially in a world that’s so different now that it used to be even 30 years ago. “We need to interpret the Constitution as it applies in 2020, literally, holistically, and purposefully. History is foundational, as a starting point, but applying it to our world is more complicated,” he said.

As an example, Thomas asked about defending Obergefell v. Hodges, the 2015 Supreme Court ruling that legalized same-sex marriage, on originalist grounds.

To defend Obergefell, Amar cited the 14th Amendment, which he said is about “birth equality. “The first sentence says that everyone born in the U.S. is born equally. What does that mean? I think it means that we are born equal, male and female, black and white, Jew and gentile, in wedlock and out of wedlock. But I think today it means that we are born equal, gay or straight. Today, science and culture have an idea that people are born gay or straight. They may not have even had that idea back then. Lady Gaga had not yet written or sung, ‘Born This Way.’ We are applying the birth equality principle in different times of cultural understanding.”

Calabresi agreed. “When the framers created the 14th Amendment, they banned systems of caste. Today, it’s clear that a ban on systems of caste mandates constitutional protection of LGBTQ couples even though no one imagined in 1868—the year the 14th Amendment was passed – that discrimination on the basis of sexual orientation was a caste. I think the 14th Amendment bans sex discrimination and racial discrimination.”

After Thomas completed his questions, Ath fellows Agard and Nandeeni Patel ’21 shared questions from the audience.

A CMC student asked, “What is more important in interpreting the Constitution? The author’s intended meaning or the contemporary public’s understanding of the meaning?”

Amar answered, that, “Steven and I both think ultimately it’s not important what’s in one person’s head, even if that person wrote the words, it’s in what the people understood when they ratified the document. We start with the words they agreed to and the agreed-upon purposes. I think judges should give weight to them.”

— Anne Bergman