ROBERT SIEGEL, host:
You have to reach way back into the days of the Clinton administration for an instance in which a Supreme Court nominee did not believe in originalism. That's the conservative legal philosophy which calls for interpreting the Constitution the way it was originally written. In recent years that philosophy has been dominant, but now as liberal legal experts await Judge Sonia Sotomayor's confirmation hearings, they are considering their own identity. If conservatives believe in originalism, what do liberals believe in?
As NPR's Ari Shapiro reports, liberals are trying to come up with a clear alternative.
ARI SHAPIRO: A few years ago, Slate magazine hosted a contest. Dahlia Lithwick asked her readers, if you don't believe in interpreting the Constitution the way it was written more than 200 years ago, what do you believe in?
Ms. DAHLIA LITHWICK (Senior Editor, Slate): The left was in this funny, defensive crouch where it was saying, whatever we're for - we know we're not for Scalia and originalism - we're for blah, blah, blah, blah, blah.
SHAPIRO: By Scalia, she means Justice Antonin Scalia, the bête noir of the liberal legal establishment and the prime spokesman for the view that the meaning of the Constitution does not change over time. Here he was on this program last year.
Justice ANTONIN SCALIA (U.S. Supreme Court): If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say, which is probably whatever the people would want it to say, you eliminate the whole purpose of a Constitution. And that's essentially what the so-called living Constitution leaves you with.
SHAPIRO: On slate.com, Lithwick asked her readers to come up with a counter-argument - and the mail poured in.
Ms. LITHWICK: I think the conclusion was originalism has just got a better agent. They have better PR and that living constitutionalism just has really lost the PR war and needs, probably, better representation.
SHAPIRO: That was 2005. Now, liberals are back in the fray. There are lots of phrases fighting to be the progressive constitutional standard bearer. There is democratic constitutionalism, redemptive constitutionalism, constitutional fidelity, even progressive originalism. Oh yeah, and there's one more, here's UC Berkeley law professor Goodwin Liu.
Professor GOODWIN LIU (Law, University of California, Berkeley): We have felled many trees coming up with the term, and then President Obama mentions a single word - empathy - and the entire debate swirls around that word.
President BARACK OBAMA: I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.
SHAPIRO: This is one reason liberals believe they finally have a chance to win this debate. The president is a Democrat who used to teach constitutional law. Reading here from his own book, he said, interpretations of the constitution have always changed over time.
Pres. OBAMA: Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions, but about first principles. Not just between peripheral figures, but within the revolution's very core.
SHAPIRO: For the first time in 15 years, the country is evaluating a Supreme Court nominee who does not believe in originalism. Progressive legal scholars have published a pile of books trying to take advantage of this moment. Yale law professor Reva Siegel edited "The Constitution in 2020."
Professor REVA SIEGEL (Yale Law School): The Constitution is neither an agreement that was made by persons long dead, nor is it something that simply reflects the understandings of living Americans. But, in fact, it's a living tradition that links the struggles, commitments and beliefs of Americans past, present and future.
SHAPIRO: Siegel said judges can't ignore the past but they can't give it unquestioning loyalty either. Her co-editor on the book is Yale law professor Jack Balkin. He argues the founding fathers intentionally made some passages of the Constitution very specific, such as the president must be at least 35 years old. And other passages are intentionally vague.
Professor JACK BALKIN (Yale Law School): They spoke in general terms because they expected that people who came along later would have to do their part. They would have an obligation to continue the project.
SHAPIRO: And Balkin believes that is true constitutional fidelity.
Professor ERIC POSNER (Law, University of Chicago): I think that's gobbledygook, it's just kind of a pun on what fidelity means.
SHAPIRO: This is University of Chicago law professor Eric Posner. He does not believe in originalism or in the academic philosophies that liberals are coming up with.
Prof. POSNER: They have to come up with a better idea, and instead of coming up with a better idea, I think they're trying to figure out what the PR angle of originalism is and how to duplicate it.
SHAPIRO: Posner believes everyone is just trying to obfuscate the fact that judges are basically political actors, on the left and right. Even if the PR campaign works, the courts will not shift anytime soon. The Supreme Court has five solid conservative votes, and one new nominee won't change that. But Professor Jack Balkin is not worried.
Prof. BALKIN: My view of the Supreme Court is sort of like the husband in the French farce. He's always the last to know. Essentially, stop bothering about the Supreme Court, start thinking about what the Constitution means in the general public.
SHAPIRO: And Balkin says the courts will catch up in good time.
Ari Shapiro, NPR News, Washington.
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