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Constitution Day 2014 

New York Times Supreme Court Correspondent Talks Interpretation, Relevance of U.S. Constitution

By Jenny Whalen
Sept. 18, 2014

When examining the U.S. Constitution, its endurance is accepted without question—227 years is no small feat—but its relevance remains a chief topic of debate, as New York Times Supreme Court correspondent Adam Liptak illustrated during his Constitution Day talk at Michigan Law.

Addressing members of the University of Michigan community Sept. 17, Liptak drew from his experiences as both lawyer and journalist to reflect on the Constitution and its interpretation before the current Supreme Court, headed by Chief Justice John G. Roberts, Jr.

"We have the oldest national constitution still in force, so we take it for granted that once you have a constitution, you keep your constitution, but that is not the case around the world," Liptak said. He noted how Thomas Jefferson, in congratulating James Madison on the Constitution's creation, also made the prediction that, "Every constitution naturally expires at the end of 19 years, because the earth belongs always to the living generation."

Liptak called this prediction a "taste of a classic conflict about how to think about the Constitution." Where some justices, he said, have equated the point of the Constitution to that of a contract, in which the chief priority is to honor the intentions of the people who drafted it, others have held the Constitution to be a different kind of legal document, one that requires each generation to look at it afresh.

In the present Roberts Court, these conflicting views have resulted in widely differing opinions among justices on issues ranging from voting rights to campaign finance, and perhaps most notably, First Amendment protections.

Citing these protections, the Court has struck down a law barring the sale of violent video games to minors, permitted hateful protests at military funerals, and allowed unlimited corporate and union spending in elections, Liptak said.

"You may not like these decisions, but they do suggest we have a strongly First Amendment Court," he added, qualifying this observation with statistics that show the Roberts Court has actually heard fewer free speech cases than the previous three courts combined.

But if free speech cases are not, in fact, a signature project of the Roberts Court, they are nonetheless of exceptional interest to Chief Justice Roberts, said Liptak, noting the Citizens United ruling in particular.

"The liberal objection is that the majority was wrong to grant First Amendment rights to corporations, but I think that objection is incomplete," he said. Beyond any constitutional or Supreme Court precedent for this ruling, there is the question of whether media, or more generally "the press," should also enjoy First Amendment rights.

"You have to confront the hard question," Liptak said. "If corporations have no First Amendment rights, what about newspapers, which are often organized as corporations?" Are they protected by freedom of the press? And how is press defined in the Internet era?

All are questions of interpretation that speak to the Constitution's relevance in the face of today's issues. But regardless of these criticisms, Liptak said the document remains "a miracle."

"What's distinctive and lasting about the American system is the way that the framers balanced the different pieces of government," Liptak said. "The genius of the Constitution was this separation and balance of power."

Constitution Day is celebrated each year on Sept. 17—a date that marks the 1787 signing of the U.S. Constitution—and recognizes all who, by way of birth or naturalization, have become American citizens. Michigan Law hosts the University's celebratory program each year.

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