Balkinization  

Monday, July 26, 2004

A Progressive Constitution

JB

As the Democratic Convention opens today in Boston, only four months before the most important Presidential election in decades, I thought it would be appropriate to spend some time talking about the fate of our Constitution in this most crucial time, and, in particular, about the possibility of realizing a truly progressive constitutionalism in the next generation. By progressive constitutionalism, I do not mean the present situation in which liberals sit on the edge of their seats each June and hope that Sandra Day O'Connor or Anthony Kennedy will throw them a bone, or that the Supreme Court will make halting advances toward justice in a deeply compromised opinion. No, by a progressive constitutionalism I mean what a full scale consideration of what the Constitution means regardless of what the Supreme Court and the political common sense of the moment tells us it has to mean. I mean a deep reassessment of the underlying principles of our Constitution in a moment of urgency for the nation. This task is altogether distinct from the quotidian task of court watching and parsing the precedents of each succeeding Supreme Court Term, gobbling them up as if they were the table scraps of our wise masters and we were their obedient dogs. The task of a progressive constitutionalism is the task of understanding that the Constitution can be better-- no, *is* better-- than those in power want it to be. It is the work of aspiration, imagination, and, above all, remembrance.

Many view the question of what the Constitution means in terms of a choice between fidelity to original understanding and embrace of a Living Constitution, a Constitution that changes with changing times. This is a false dichotomy. The Constitution, both as a text, and as a set of institutions and institutional meanings embedded in political practice changes whether we like it or not. Attempts to be faithful to the Constitution inevitably are influenced by the problems of our own time, and carry the weight and accretion of previous interpretations. The question is not whether to be faithful to the Constitution and its original understandings, but how to be faithful. It is the question of what fidelity means.

Even the opponents of what they believe to be the principles of a "Living Constitution" are attempting to change the Constitution, both its meaning as a text and its embodiment in a set of institutional practices. They wish to discard previous precedents and practices and return to the old ways. They want the Constitution to live too, just live differently, authentically. But in so doing, are they truly returning to the understandings and institutional structures of the past, or are they not adapting the text, history and structure of the Constitution to our own times according to their understanding of the best reading of the document?

It is ironic but true that most movements for return to purity, to the original meanings and understandings of sacred or canonical texts are revolutionary movements that seek to change the world. The quest for purity, for return, for recovery, is almost always a gesture of revolution. The same is true of the acolytes of conservative constitutionalism in the 1980's and 1990's. They sought first to blunt the advance of liberal constitutional principles, and then, when they had gained some degree of control over the federal judiciary, to push their vision of the original understanding, a vision that meshed, not surprisingly, with the political program of the modern conservative movement.

One could regard this meshing cynically, but I prefer not to. The Constitution is a repository of the deepest ideals of Americans. It is altogether natural for any social movement, of whatever ideological stripe, to frame its goals in terms of what it believes to be the best interpretation of the Constitution. The attempt by movement conservatives to take back the Constitution was not a cynical ploy but a sincere attempt to reground American politics through a conservative political vision which included and was nourished by a conservative constitutional vision.

There was nothing particularly unique about this. In the United States, virtually all important and successful social movements, both of the left and the right, seek to promote the ideals of the country and its Constitution as best they see them. And when they see those ideals betrayed or abandoned, they feel it their duty to rise up and restate the principles of the Constitution as best they understand them. The institution we call "the Constitution" is the product of these successive waves of energized attempts to take back the Constitution and be faithful to it, even though the meaning of fidelity is often different for different sides, and especially for different generations.

To state the principles of a progressive Constitution, to take back the Constitution in these times and these days, therefore, is not an abandonment or renunciation of the old Constitution or the true Constitution, but an attempt to rediscover and reaffirm its principles for our time, and, equally important, to convince others of this meaning, to produce the constitutional common sense of a generation in conformity with the best understandings of our founding document. That is what constitutional fidelity means.

The attack on the so-called "Living Constitution" that was a centerpiece of constitutional conservativism in the 1980's and 1990's was itself an attempt to make the Constitution live again in the eyes of constitutional conservatives. It was necessary precisely in order to dethrone liberal assumptions and establish a new constitutional common sense, which, like every such constitutional order in the United States, understands itself not as rebelling against the text, history and structure of the Constitution, or its deepest principles, but embracing and restoring them. The work of restoration and recovery is how American constitutionalism changes. It is, to borrow a phrase, how our Constitution is truly and always a Living Constitution.

This work is not finished. It is never finished. It is left to the members of each generation to renew and restore the Constitution, to make it live for them. Our Constitution needs such restoration now. It has been sorely tested in the past fifteen years. Its promises have been abandoned and twisted by the rich, the influential, and the powerful. Its principles need to be rediscovered and reasserted, with energy, with devotion, and without apology.


Comments:

Amen, brother.
 

It seems the constitutional view you outline is best described as a species of living constitutionalism rather than as an alternative to it, since under it the constitution indeed does "change with the times" (albeit for a deeper set of reasons than shifting public attitudes).

Mike
 

I agree wholeheartedly with Professor Balkin, but I will take him an additional step: it is time for a new constitution. It has been time for a new constitution for decades, but it is not in most people's interests to suggest such lunacy. Even a superficial analysis suggests that this constitution is bankrupt. The question isn't to be faithful to a document that is the product of a lost America, but to be faithful to the spirit of the America that founded the document. We define the constitution, and we need new definitions. Article 1, as construed by today's powers, would be an executive branch. Article 2 would be the judicial branch. Article three might be the legislative branch, although I am guessing that the rights listed in the Bill of Rights have more power in the eyes of the American people than Congress.

We are generations overdue for a new constitution, and it is necessary for this nation of 300 million to begin the process of a new constitution. It will be excruciating, perhaps even bloody, and it will be painful. But it is ridiculous to suggest that a law adopted to govern a few states is adequate even in its framework to govern a continental power. We have changed, and as we continue to strain to interpret a dead constitution, why don't we focus our energies on a new government, on a more democratic and representative government, with compromises modeled on the politics of the 1980s and 1990s versus the 1760s and 1770s.

Symbolically I would like a new constitution to be adopted on July 4, 2026, to link the creation of the constitution with the 250th anniversary of the Declaration of Independence. I suggest Professor Balkin, Judge Posner, and dozens of other of the finest minds on "both sides" whatever that means of the political spectrum work in laying the foundations in their documents and their teachings so that this generation can realize the Jeffersonian dream of its own constitution. Continuing to pretend this one is adequate is simply folly, and it is shameful as Americans that we would delegate so much power to lawyers and judges and not reserve enough to realize that we need a new law governing our nation.
 

Anonymous: Mis-characterizing the Constitution as a document suitable for a handful of colonies manifests base ignorance of its rich history. Calling for a new constitution is sheer lunacy.

The divide among our citizens is dangerous enough as it is. If Bush were to be reelected and continue the same domestic and international policies, it will only become worse. As it is, we are facing a growing risk of civil upheaval at home and terrible isolation internationally. I would not be surprised to see an appreciable exodus of citizens from the U.S. as well, as many seek to avoid the self-fulfilling prophecy of 'Rapture' which Mr. Bush and his adherents seem to long for.

-- Anti-Anonymous
 

Anti-Anonymous,

You make a more eloquent argument for a new constitution than I ever could. The people fleeing America should stand and be counted through a new constitutional convention. They should not run with their gains from the fruits of the stability of this nation, papered over by generations of legislation and held up by military and civil force. They owe it to this nation, to all of us, that if they have the means and the wits to flee, that they stand and fight.

I agree that in this environment there is a risk. The religious right, the corporate soft right, the environmental hard left would certainly have their voices and their resources to shape the constitutional process. I am willing to take that risk. Maybe it is because I have looked at what America is becoming, and I am willing to consider exile or death as a consequence. This constitution is dead---it served many of us well for two hundred years, but it is time for a new constitution, a new government, establishing for the first time power directly in the hands of the citizens through a direct election process, consideration of a referendum process, recalibrating (if possible) the severely anti-democratic strains present in the U.S. Senate and the Supreme Court.

Anti-Anonymous, we are closing in on a breaking point. We are discussing postponing elections, we hold American citizens without a trial, we attack nations in a preemptive manner. It is not enough to elect a Democrat---it is time to establish a democracy. Let the people whose children die vote to put them to death---do not let one man decide to invade a nation FOR ANY REASON, good or ill.

My own feeling is that we should CONSIDER becoming a democracy, and that this should be a serious discussion. Yes, I am well acquainted with the failures of democracy, the limits, but our republic is sputtering, our representation is laughable (what, twenty some percent of Americans decides who is president, which, contra the constitution, now resembles a monarch much more than a democratically elected leader). Regardless of what I want, we need, as a nation, the discussion, the frisson, the ability to consider the changes. Perhaps we decide, as a nation, that the current system, with its flaws and its warts and its uniquely anti-democratic elements, is the best we can do. Let it be the choice of the living to be governed in this manner, and not the choices of the dead and dying.
 

The Constitution was not perfect when it was adopted. As it has been amended and construed by SCOTUS, it is not perfect today. What makes any of us think that we can make it perfect by adopting a new Constitition? Based upon the difficulties with the Articles of Confederation and the Constitution itself in its enactment, with so many years' experience and so many constitutional experts presently, just imagine the discussions and arguments. I can just picture an American version of the Tower of Babel. I am not against change or improvement in the Constitution, but it still works fairly well. Who can predict that a new Constitution will be so clear to all Americans that there can never arise a serious dispute as to its meaning? Let's keep talking but not rush to judgment. Sometimes a little bit of doubt keeps us more alert, hermeneutically speaking.
 

Shaq,
Your concerns are thoughtful. I am cognizant of the fact that it is possible we create chaos rather than progress. I think it is our duty, as a self-governing people, to try. I don't think we can delegate our power to another generation of lawyers and judges who try and interpret the popular will through a two hundred year old document. We have shirked our responsibility as the executive and judicial branches have morphed beyond anything the founders (except for Hamilton?) imagined.

But your point about the articles and the Constitution are good ones. There was difficulty, and strife, and struggle. We (as a nation) survived. Do we have greater or less resources to pursue self-government today? Do we really believe that our best constitutional experts aren't as skilled as the Founders? Do THEY believe that? That 200 years of experience is essentially fruitless?

I admit, we RISK something. Of course we do. But the alternative to action, and dramatic action, is the continued erosion not only of the constitution but of our abilities to govern ourselves. We are getting dreadfully close to the point where people would rather walk away than stand and fight, converting their dollars to euros or yen and moving to a "modern" nation (with a newer constitution) and watching America implode. See Anti-A above---I am sure a brilliant, affluent individual who already is thinking about leaving the field.

I do not know what the endgame is. But we are doing ourselves and our heritage a disservice without a DISCUSSION of a new constitution. It is something that does not get enough attention, and with Sunstein's new book, and Dahl's recent popular writings, one can see gifted academics walking up to the line without crossing it. I will plunge across the Rubicon as I am not a gifted academic and say that it is time to consider a new constitution, and deal with the risks and uncertainities that process will surely bring.
 

Balkie has WAY too much time on his hands. Tenure is a freaking invitation to this sort of gold-bricking.

And he's wrong: "The Constitution, both as a text, and as a set of institutions and institutional meanings embedded in political practice changes whether we like it or not." No, dude, the text doesn't change unless we change it. It's almost cliche to use the term liberal anymore to describe Balkie's bubble-headed views (especially with libs like Balkie in full retreat from that term, instead using "progressive," even though there's no substantive difference), but this is just pap. -- Cubbie
 

What is a "text"? Isn't the exact meaning of a "text" in the mind of the reader? Isn't it possible, then, that a "text" could mean different things to different readers, so that the "text" of the Constitution could change over time to reflect changes in the populace?
 

The last post by Anonymous asks a valid question. Hermeneutics is the art of interpretation, primarily of text. This has been applied to the Old Testament for many centuries. The words in Genesis and other books of the Old Testament have been examined, explained, reexplained, changed, etc, such that the original words have acquired different meanings today, except for a few literalists. Hermeneutics applies to the Constitution as well. Space does not permit even a small demonstration of this. As for originalists and other believers in original intent, as well as textualists, it is amazing how a couple of hundred years later they can find the meanings and intent of the Founders that were not evident in the early decisions of SCOTUS. Why some are discovering the Lost Constitution. Yes, bring back the good old days. But wait a minute, some of them might not have been so good. People of good faith and intent want to do things right. But all cannot agree on what is right. So we do the best we can with what we got, hopefully with a view to leaving our country and the world better than when we came into it. Times change. We all change. But the Constitution lives on, sometimes requiring mouth to mouth resuscitation. There is still plenty of life left in it.
 

The text will always change, whether or not we want it to. Any document like the constitution, purposefully subject to constant interpretation, will change form to meet the mind of the interpreter. And if text was text and as such universal, I can think of a certain strict constructionist on the SCOTUS who'd be taking a lot less flack at every turn. I think its dangerous to refer to the written word as if it were a dead thing, its very much alive. Just imagine how the text of the second amendment changes depending on the mind of the reader and the general feelings of security of the American people, as one example.
 

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