Needless to say, I found both EJ Dionne's column and Jack's posting about it very interesting. I think it would be absolutely wonderful if the Forbath-Fishkin book on "the opportunity Constitution" became a best seller and structured a lot of the debate. Indeed, perhaps President Clinton could adopt it as her manifesto as she sets out the vision for her presidency.
That being said, it is also no surprise that I think there is an element of whistling past the graveyard as liberals/leftists/progressives/the 99% once again end up putting their faith in clever arguments directed at judge plus--and it's a big plus--an aroused social movement that also pressures legislators to live up to their oath really and truly to enforce the Constitution by passing appropriate legislation. As I have written far too many times, we have a Constitution that is tilted irrevocably toward maintaining the status quo, which, of course, doesn't mean that every now and then, with war (1866-1868), a fluke election (Wilson in 1912, thanks to Teedy's splitting the GOP), and Depression (1933-37), and a magic electoral moment (1963-67), wonderful things can happen. But don't bet on it. Even if we have a President Clinton, unless "we" also have working control of the House, 60 votes in the Senate, and can replace Scalia with a Progressive, hers will simply be one more disappointing Democratic presidency.
There used to a time when "progressives" talked about constitutional reform, and we got Amendments 16-19 (including 18, which was the product of an alliance of Christian groups and progressives groups who altogether correctly recognized that alcohol was a scourge that was wrecking a lot of working class lives). There was, among many left progressives, though not technocratic progressives, a belief in rule by the people, thus the move toward "direct democracy" in the Western states. I fear, though, that that valuable aspect of "our" tradition is gone. The only people who really seem to have much faith in democratic politics are the Tea Party (though, of course, a lot of their leaders are busy trying to suppress the electorate, so I don't want to go overboard on their esteem for democracy_.
Our attitude toward the Constitution should be like our proper attitude toward the state: To be loved and, perhaps, even to be died for (and to kill for( when in the right, but to be subjected to loving criticism (and even resistance) when in the wrong. The Constitution is not the flag, a mere symbol to which we can ascribe our fondest notions of a republic with liberty and justice for all. Instead, it is framework of government that, more often than not, has prevented the achievement of such liberty and justice save for the rare moments noted above. It was one thing in the '60s to criticize the left for turning on the American flag and handing it over the right. There really was no good reason to do that, and it is important for the left to be able to wave the flag when appropriate. But the Constitution always ought to be subject to rational critique where the central question is "what has it done for us lately."