Con law seminar makes you appreciate the Constitution

For many people, sitting in a room with a professor of constitutional law — even a noted one, a Harvard graduate — to listen to a lecture about recent cases is a definition of torture prohibited by the Geneva Conventions.

For me, however, it’s a rare treat.

So I was excited when the State Bar of Nevada kindly granted my request to attend a continuing legal education seminar at UNLV’s Boyd Law School this week with professor Erwin Chemerinsky.

For those people with more of a life than me, Chemerinsky is the law-school equivalent of a rock star (think Bono), a Hall of Fame baseball pitcher (think Nolan Ryan) or an elite golf pro (think Tiger Woods, minus the scandals).

An author of textbooks and popular books about the Constitution, criminal procedure and other topics, Chemerinsky is an oft-quoted authority on our nation’s founding document. He’s currently the founding dean of the law school at UC Irvine, having also taught at Duke University and the University of Southern California.

Chemerinsky led the room full of (mostly) lawyers through a series of criminal and civil cases, outlining rulings that ranged from the absurd to the sublime. Along the way, he offered some insights gleaned from years of studying the nation’s highest court and its members.

Conservatives, Chemerinsky observed, have become increasingly formalistic in their approach to the Constitution during the past 100 years. Advocates of “original intent,” conservatives tend to believe constitutional ideas mean the same thing today as when they were originally written in 1787 (the Constitution itself) or 1789 (the Bill of Rights). They usually approach decisions as a strict matter of law, without allowing concerns about the consequences of their rulings affect their opinions.

On the other hand, you have liberals, who are much more pragmatic in their interpretation of the Constitution, Chemerinsky said. They do consider the consequences of their rulings, and historic, social and technological developments in the 212 years since the Constitution and Bill of Rights were written. When you hear politicians talking about a “living Constitution,” they’re typically speaking of liberals.

And that dichotomy got me to thinking: Isn’t the history of the Supreme Court a hybrid of both?

For example, why can’t we try keep the original principles that undergird the Constitution — limits on government power, separation of powers, and promotion of the common defense and general welfare — and marry them to an evolving understanding of society and how law should govern it?

As the court’s battles between liberals and conservatives show, we can respect precedent, but also recognize that society evolves. (The original Constitution, for example, conscienced slavery and counted blacks as three-fifths of a person for the purposes of census-taking, ideas that are repugnant today.)

We can respect the fact that the authors of the Constitution grasped timeless principles that should never be trampled — individual rights, for example. But we can also recognize that they necessarily lacked insights into the modern world — the concept of the atom, the airplane, the jet engine, nuclear power, DNA, the Internet or space travel. And we must admit that those limitations necessarily inhibited how they wrote the Constitution.

Chemerinsky summarized the limitations of an “original intent” approach with a comment about a case that concerned a ban on violent video games: What would a founder know about that kind of technology, and what would a founder say about such a ban? We can only guess, and try to marry the principles of 1789 with the reason we’ve acquired in 2011, and do the best we can.

It’s far from a perfect system, but it’s sure better than all the others.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at (702) 387-5276 or ssebelius@ reviewjournal.com.