Balkinization: The Return of Liberal Constitutionalism-- And A Note on Democratic Constitutionalism

The Return of Liberal Constitutionalism-- And A Note on Democratic Constitutionalism

In today's New York Times Magazine, Jeffrey Rosen has an article about the new liberal constitutionalism. It features, among other things, Reva Siegel's and my new book, The Constitution in 2020. Rosen's article mentions the Constitution in 2020 conference held in April of 2005 at Yale Law School in which many important liberal constitutionalists debated the direction that constitutional theory should take. The flowering of liberal constitutionalism some four years later is due to many people working on these issues in the past decade. More work needs to be done and will be done in the future.

It is important to remember that the debate over the future of liberal constitutionalism began in the darkest days of the Bush Administration, when conservatives controlled all three branches of government and when it seemed that no one would ever pay attention to liberal views about the Constitution again. The Constitution in 2020, written against the backdrop of those times, has appeared in an era in which the Republicans and the conservative movement have been discredited by years of corruption and mismanagement. It is now up to liberals and Democrats to explain the direction they want the country to take. Stating a new constitutional vision is part of that obligation.

Earlier I mentioned that the new liberal constitutionalism has three major themes, which I called constitutional fidelity, democratic constitutionalism, and redemptive constitutionalism. In his article, Rosen focuses on the second, democratic constitutionalism. This term describes the idea that courts have neither the first nor the last word on the meaning of the Constitution, and that courts and political branches are engaged in a continuous process of mutual influence and interaction.

It is not surprising why Rosen focuses on this aspect of the new liberal constitutionalism. Rosen himself has argued for the idea that courts work best and are most legitimate when they defer to the constitutional views of the country as a whole.

Even so, focusing only on democratic constitutionalism by itself is incomplete. Constitutional interpretation must be faithful to the Constitution-- attempting to apply its text and enduring principles to new conditions-- and it must also be redemptive-- taking seriously the Constitution as an aspirational document as well as a framework of governance and attempting to realize the Constitution's values in our own time.

Moreover, Rosen's version of democratic constitutionalism understandably sees the world from the perspective of courts-- he argues that courts should follow the constitutional views of the country as a whole. This makes sense if one is worried about a judiciary that is likely to run amok and needs to be forced to behave. But a central point of democratic constitutionalism is that all branches of government and the American people are active constitutional interpreters. And whether or not judges are called active or passive in any era, they will, in the long run, conform to popular sentiments. If this is so, we should probably spend less time worrying about judicial activism or judicial restraint and more time arguing about the best interpretation of the Constitution. For in the long run, it is the views of Americans about their Constitution that matter more than the views of individual judges. Arguments about judicial activity or passivity-- which are issues of process-- are often disguised ways of arguing about what the best interpretation of the Constitution should be-- issues of substance. That is because Americans want judges to be alternatively active or passive when doing so protects the rights and interests they believe are important to protect. For this reason, it might be better to stop focusing on what judges should or should not do-- for as a group they will follow popular opinion in the long run-- and instead focus on what we as citizens understand our Constitution to mean today.

We can see this point in the current debates over Sonia Sotomayor's nomination to the U.S. Supreme Court. Sotomayor's conservative opponents are trying to attack her character, arguing that she will not judge fairly or impartially. But what is behind these attacks on character is a debate about constitutional issues that are not being directly addressed; indeed, in some cases, the attacks are deliberately obscuring them. These constitutional issues are fraught with difficulty; however, it is by no means clear that, when fully articulated, the American public now supports the Republican Party's views about the Constitution. It is more likely that the public's views are somewhere in the middle between the two parties, perhaps now a bit closer to those of the Democrats than the Republicans.

I do not think that our debates about judicial nominations will stop focusing on personal issues anytime soon. But Americans should understand that Supreme Court nominations are an important forum for Americans to debate the meaning of their Constitution, and send messages to their elected officials-- particularly the President and the Senate-- about what their Constitution means to them. Although Supreme Court nominations are about appointing judges who will interpret the Constitution, they should also be key opportunities for democratic constitutionalism.

Posted 9:50 AM by JB [link]