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News Posted on March 2, 2010

Judge Reinhardt Delivers Barrett Lecture on Constitutional Law

Judge ReinhardtJudge Stephen R. Reinhardt of the U.S. Court of Appeals for the Ninth Circuit, one of the most influential - and most liberal - judges in the country, delivered the Edward L. Barrett, Jr. Lecture on Constitutional Law on February 25.  Speaking in the Wilkins Moot Courtroom to an audience of King Hall faculty, students, and staff, he described the conflicting modes of interpreting the U.S. Constitution that prevail on the federal bench today, and argued for a "living constitutionalist" interpretation of the nation's founding document.

Judge Reinhardt, who, as Dean Kevin R. Johnson noted in his introduction, has been described by the National Law Journal as "the warhorse of the left," outlined the starkly contrasting views of "originalists" who profess to adhere to a strictly literal interpretation of the Constitution and its historical underpinnings, and "living constitutionalists" such as himself.

"For originalists who cleave to the notion that the only permissible interpretation of the text of the Constitution is that which existed at the time it was drafted, the Constitution is in many ways a historical artifact, designed to enshrine permanently the status quo of that time," he said.  "For others, among whom I count myself, the Constitution is a living document that primarily guarantees rights and privileges to the inhabitants of contemporary America, rights and privileges that may expand as our nation continues to develop.  For those of us who believe in a living Constitution, the Constitution itself is much more than a historical text to be parsed for its literal original meaning.  Rather it is a collective covenant, designed to effectuate the broad purposes outlined in its preamble."

Judge Reinhardt noted that conservatives have criticized living constitutionalism as judicial "activism" that places the personal philosophy of the judge above precedent, and responded by listing examples of decisions such as District of Columbia v. Heller, which overturned a Washington, D.C. handgun law, and Bush v. Gore, which effectively decided the 2008 presidential election by halting the ballot recount in Florida, as decisions he said betrayed the influence of conservative political values at the expense of legal precedent. 

Judge Reinhardt offered statistics to show that the supposedly activist Supreme Court led by Chief Justice Earl Warren during the 1950s and 1960s overturned far fewer federal statutes than did the conservative Court of Chief Justice William Rehnquist of the Reagan, Clinton, and Bush years.  He pointed to the Warren Court's protections against coerced confessions, provision of counsel for indigent defendants, and expansion of the guarantee of equality in access to education, welfare benefits, and voting rights as a model to be emulated.

"It is hardly activism to consider minority rights as a fundamental part of our nation's ideals and a core element of our American democracy," said Reinhardt.

Established in 1986 to mark the retirement of Edward L. Barrett, Jr., founding Dean of UC Davis School of Law and a nationally renowned Constitutional Law and Criminal Procedure scholar, the Barrett lecture each year brings a distinguished constitutional authority to King Hall for one of the Law School's most-anticipated lectures.  Reinhardt, a member of the Ninth Circuit since being appointed by President Jimmy Carter in 1980, was the 18th Edward L. Barrett lecturer to visit King Hall.