Do the Democrats Have a Constitutional Vision?

Mark Tushnet

David Strauss has an interesting article in the current issue of Legal Affairs, arguing that the Republicans have an agenda for constitutional law while the Democrats do not. ("Not that there's anything wrong with that.") He's right in one sense, but wrong in another, I think.

Strauss ends his article by discussing the Court's recent "federalism" decisions, calling that part of the Republican agenda the "sleeper" issue. For Strauss, those decisions threaten to "eviscerate Congress's power over important areas of national life." The interesting question, I think, is why Democrats should -- because of their constitutional commitments -- care about ensuring that Congress have ample power. That is, it's hardly attractive to favor national power just for the heck of it.

And Democrats don't. They care about national power because of how that power has been exercised. Democrats take pride in having created the Social Security system and Medicare. Add to those the range of national antidiscrimination laws -- including most recently the Americans With Disabilities Act, the potentiality of which the conservative Court (joined fairly often by some of the Court's "liberals") has substantially scaled back -- and you can indeed get a sense of the Democrats' constitutional vision.

No one has really given that vision a good label, but something like "equal dignity and respect" will do provisionally. The statutes that are at the heart of the Democratic constitutional vision are all designed to promote the equal dignity of and respect given all Americans (a class that, at least for some purposes, probably includes some permanent resident aliens). Note that I've been speaking of statutes that embody the Democrats' constitutional vision. My idea here is related to, but somewhat different from, Bruce Ackerman's thought that sometimes political developments really amend the Constitution even though the text remains unchanged, and Cass Sunstein's description of constitutive commitments, relatively stable normative commitments -- embodied in statutes or executive policies -- that come to be understood by Americans as capturing fundamental aspects of national identity. Ackerman and Sunstein are concerned more than I am, I think, about how courts deal with non-textual amendments or constitutive commitments (although I wouldn't want to place too much weight on that assertion).

The difference between my approach and Ackerman's and Sunstein's indicates one problem with the Democrats' constitutional vision, which also emerges in Strauss's article. Strauss acknowledges that Democrats do have an agenda, the preservation of choice with respect to abortion. Plainly that commitment is consistent with one understanding of "equal dignity and respect" (although not with every such understanding). So too the likelihood, which Strauss also acknowledges, that Democratic appointees to the courts will be somewhat more receptive to claims by gays and lesbians than has been the case in the past. As Strauss puts it, Democratic judges would probably "slightly accelerate the trend" visible in Romer v. Evans and Lawrence v. Texas. So -- not that it should come as a surprise -- courts as well as legislatures can promote equal dignity and respect.

And here's where the problem arises for the Democrats' constitutional vision. As I have described it, that vision has no significant institutional component. By "institutional component," I mean some aspect of the constitutional vision that says, "These aspects of the promotion of equal dignity and respect are best done by the legislature, while these other aspects are best -- or at least appropriately -- done by the courts." For Democrats, I believe, statutes can promote equal dignity and respect. So can court decisions.

The absence of an institutional component leaves Democrats committed this vision open to the charge of opportunism: They will take "equal dignity and respect" wherever they can get it. If Congress provides a favorable venue, fine; if not, try the courts; if the courts are unfavorable too, defend the prerogatives of state legislatures and city councils to act as laboratories of experimentation (as has happened with domestic partnership legislation, for example, or "living wage" ordinances). (David Barron's aticles on local government bring this out quite dramatically.) Strauss writes, "the issues that the Democratic Party most cares about these days?jobs, health care, helping the middle and working classes overcome economic dislocations, protecting Social Security and Medicare?are not ones about which the courts can do very much." But, guided by a commitment to equal dignity and respect, courts could actually do something about those matters. (Sunstein argues that doing so was on the agenda of the Warren Court when it ended with Richard Nixon's appointments to the Supreme Court.)

Now, from a couple of points of view, there's nothing discreditable about opportunism. Political activists take their victories however they can get them, as is clear from even a brief conversation with activists who work on issues associated with equal dignity and respect. And, of course, no political scientist would be surprised to discover that a political party was opportunistic with respect to getting its principles embodied in public policy.

So, the question I have about the Democrats' constitutional vision is this (or, are these): Is there already some institutional component to that vision, one that I haven't been able to discern? If not, what might the institutional component be? Or, is there anything wrong with a constitutional vision that lacks an institutional component (and is thereby left open to the charge of opportunism)?

(I ask the question in this final form to raise the possibility -- which I believe to be true -- that Republicans don't even have a constitutional vision, but are (merely) opportunistic. What Republicans have done, though, is capture the rhetorical high ground by asserting that opportunism is bad and that they are principled while Democrats are opportunistic.)

Posted 9:23 PM by Mark Tushnet [link]