Can Liberal Legal Warriors Embrace the Constitution to Defend It?

Guest Blogger

Simon Lazarus

As few question, the Supreme Court majority’s end-of-term presidential immunity head-scratcher, Trump v. United States, constitutes a warp-speed shift to a new constitutional universe. It casts aside not just 20th century Progressive-New Deal-Great Society liberal governance, not just the “Second Founding” Reconstruction Amendments, but the core grand design for a democratic republic written unambiguously into the original,1789 Constitution. As echoed across the ideological spectrum, Chief Justice John Roberts’ opinion shed all pretense of maintaining the legal Right’s long professed “originalist” fidelity to text and the framers’ design. Liberal originalist Akhil Amar wrote that the decision turns the Constitution “inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit.”? On the right, conservatives have echoed Professor Michael Rappaport’s acknowledgement that “presidential immunity does not accord with [the Constitution’s] original meaning.”      

After decades of inattention to their right-wing adversaries’ making capture of the Court a political priority, liberals have begun to correct that default. Liberal poll respondents and focus group participants now rate it a top tier ballot box issue. Political leaders, including President Biden, spotlight the right-wing justices’ ethical misadventures.

But many liberals, especially advocates and policians, still fight this existential war missing two strategic imperatives. As I have written, and as our host Jack Balkin has detailed, their predecessors recognized these necessities, and deployed them, at earlier historical moments when the liberal enlightenment values enshrined by the Constitution were similarly up for grabs – FDR, Lincoln, Frederick Douglass, and the original framers themselves. The first of these two essentials is that liberal leaders must take their constitutional case – their understanding of the Constitution – directly to the people, to galvanize decisive political affirmation of that understanding. Instead, with less than a handful of exceptions, current liberal politicians have shied away from arguing about what the Constitution means, leaving that job up to lawyers and judges in litigation.   

The second imperative is a corollary of the first: effective political constitutional messaging requires centering originalist and textualist rationales, adroitly tailored for political audiences.  Maryland Representative Jamie Raskin, lead counsel for the then-Democrat-controlled House of Representatives in Donald Trump’s Senate impeachment trial, has recently come out as the first liberal politician to grasp this necessity. Unnoticed amidst the furor over Trump v. U.S. and the Court’s other end-of-term blockbusters, Raskin expounded a detailed – self-styled “originalist” -- roadmap for liberals to regain traction in the 21st century war over the Constitution. On May 29, in the last of an anti-originalist Slate series entitled “How Originalism Ate The Law,” Raskin countered “I might be the closest you’ll come to somebody who’s a real originalist.” He then elaborated a vision emphasizing that, as a matter of black-letter law, the Constitution means the whole Constitution, not just the 1789 version, including two centuries of amendments. Further, he stressed, “The whole trajectory of our constitutional growth has been toward more democracy and greater inclusion.”

Trump v. U.S. is the most brazen example yet of the Supreme Court majority’s a-textual, a-historical, now patently anti-constitutional political and ideological agenda. But it is hardly the only one. To cite a few examples well-known to readers of this blog: Citizens United v. Federal Election Commission (2010) and its progeny, mocking all previous understanding of the first amendment; Shelby County v. Holder (2013) and Brnovich v. Democratic National Committee (2021), gutting the 1965 Voting Rights Act, and in effect erasing the Amendment’s mandatory grant of broad authority that “Congress [not the Supreme Court] shall have power to enforce this article by appropriate legislation;” Dobbs v. Jackson Women’s Health (2022), inventing a law-free rule that contemporaneous 1868 societal practices trump judicial recognition of “unenumerated” rights, that ignores the Ninth Amendment’s explicit direction that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”   

Liberals need to train public attention on their adversaries’ disregard for these and other express constitutional commands. That means, as Raskin’s exposition illustrates, not undercutting such straightforward messaging with distracting polemics against the label, “originalism.” Popular audiences no doubt hear bickering for or against such arcana as befuddling squabbles over cultish esoterica they want nothing to do with.

However, spotlighting originalist arguments, as distinguished from the label, is another matter.  And marshalling such appeals is not simply a tactical plus. On the merits, as shown by academics Amar, Balkin, and Jim Ryan, liberal justices Elena Kagan and Ketanji Brown-Jackson, and now Representative Raskin, conscientious embrace of text and framers’ design usually (not always, of course) favors liberal outcomes. This is especially apparent on current existential issues about preserving the democratic republic that was the core goal of the original eighteenth century constitutional project. That’s exactly why, increasingly, ideological, political, and now, judicial leaders of the Right have felt obliged to throw their longstanding signature “originalism” credo under the bus.   

But even now, some of the most accomplished liberal legal leaders can’t seem to set aside this anti-originalist fixation. Berkeley Law dean, and eminent Supreme Court litigator, Erwin Chemerinsky published a book in 2022, entitled Worse Than Nothing: The Dangerous Fallacy of Originalism. Unwittingly, that label reinforces the Right’s snark that liberals have “nothing”—no strategy, no theory to counter conservatives’ originalism.  The Brennan Center for Justice, justly renowned for indispensable victories on electoral democracy and many other fronts, continues to churn out tracts with titles like “Originalism Run Amok at the Supreme Court,” (2022), “What Originalism Means for Women,” (June 12, 2024), and “Opposing Originalism,” (May 12, 2024). The Washington Post’s Deputy Editorial Page Editor and Pulitzer Prize finalist Ruth Marcus devoted more than 5,000 words to a 2022 opinion essay entitled “Originalism is Bunk.”

Ironically, the most fervid recent expression of anti-originalist zeal has come from the very luminary pundits who provided Jamie Raskin with his platform for laying out his originalist-centered strategy, Slate’s Senior Editors Dahlia Lithwick and Mark Stern. On May 8 Lithwick depicted the “How Originalism Ate The Law” series in which Raskin’s May 29 interview appeared, as “about the legal theory that ruined everything.” Her introduction promised to unmask this “drunken ideology” as “the invisible force that allows a handful of unaccountable jurists to unravel both progress and understanding along with the wants of the majority.”

Ironically, Lithwick herself explained why Raskin’s punchy brand of originalism is essential for marketing liberals’ constitutional case to American audiences. “The Constitution,” she headlined, “is America’s bible.” She cited a May 4 interview with Balkin, who explained that, Americans’ uniquely “worshipful attitude” to the Constitution, the reason why “People carry copies of the Constitution, the declaration in their pockets [and] pull them out and read them,” is that, uniquely, America’s was “a revolution in which the country, the imagined people, the American people, and the national creation are supposed to have occurred at roughly the same time.  And the people who make the Constitution . . . constitute the people as a people.”  No other country, Balkin explained, has this “magical combination.”

But, unlike Raskin, and Balkin (whose “living” and “framework” originalism closely matches that of Raskin), Lithwick, and her co-host and colleague Mark Stern, do not connect these dots, to anchor their policy agenda in the public’s secular religion. On the contrary, they deride popular reverence for the Constitution as, in Lithwick’s terms, “strange” and “fraught.” Stern, in his May 8 contribution to the series, went so far as to attack the left’s star rookie justice, Ketanji Brown-Jackson, for “pitch[ing] this theory [on] her second day on the bench – as if to warn her conservative colleagues that their bogus originalism would no longer go unchallenged.”  Likewise, the Post’s Marcus berates the liberal justices for falling into a “trap,” with their media-friendly originalist arguments and messaging, as have other prominent liberal advocates. The sub-title of Stern’s May 8 Slate essay asserts that Brown-Jackson’s “attempt to reclaim originalism from conservatives isn’t working.” But, contradictorily, he acknowledges in the article, that “[P]erhaps her shaming strategy worked, since the court ultimately [in the decision following the oral argument in which she spoke] delivered an unlikely victory for the Voting Rights Act.” Indeed, Stern acknowledges that, “on select topics, [the liberal originalism] tactic can work marvels.”  Examples, he specified, are “race” and “Federal power . . . since the Framers clearly gave Congress sweeping powers to regulate commerce.”  To his credit, he also took due note of Justice Jackson’s opinion for a 7-2 majority that upheld, with “an originalist defense,” Congress’ power to create private rights through its spending power.”  Even if those were the only areas where originalist arguments might work, that’s hardly a narrow sliver of “select topics;” it covers much of the spectrum of liberals’ national policy priorities. And bear in mind that the principal value of originalist argumentation is its potency with political audiences, not judges or other legal cognoscenti, whose outcome preferences are more likely to be set in stone than those of run-of-the-mill casual observers.

So all this begs a question – why do expert liberal constitutional gurus disdain a manifestly worthwhile strategy, with virulence akin to the religious passion they decry in the Constitution admirers they scorn?  Why, instead, do they not flaunt the imprimatur of what all acknowledge as America’s secular scripture? The question is all the more puzzling because, by anchoring their case in the broad directives of the Constitution and its framers, liberals lose little, if anything, of substance. After all, (“original”) text and design prescribe a regime substantially as flexible and adaptable as the “living constitution” brand many liberals have been wont to favor. The three liberal justices succinctly spotlighted this truth in their dissent in Dobbs: “In the words of the great Chief Justice John Marshall,” they wrote, “our Constitution is ‘intended to endure for ages to come, and must adapt itself to a future seen dimly,’ if at all. . . .”  Moreover, thus re-grounding their political brand would have zero effect on how liberals go about actually interpreting the Constitution in specific cases or on specific issues.  When performing such lawyerly analysis, everyone, right or left, agrees, at least in principle, that one must start with the text and framers’ design.  And all sides also understand that, because of the terseness of the U.S. Constitution’s provisions, the inquiry rarely stops there, especially on the politically charged issues that both liberals and conservatives care about most passionately.

So why should liberal advocates not breeze through this wide-open door, rebrand their approach, link their agenda to the document and its framers, and validate their esteem for both?  Here are three hypotheses:

First, comforting habits of mind are hard and slow to shake.  Current ardent anti-originalist liberals – advocates, lawyers, pundits, judges – may be uncritically recycling arguments familiar from a past era – from the late 1930s till the early twenty-first century -- when they controlled, or at least dominated, legitimate constitutional interpretation and the federal judiciary. If so, they have overlooked a pattern evident from the history: The idea, or the practice, of a “living constitution,” unconstrained by written law or original meanings, works fine for the side that happens to hold power at a given time. So it is natural for the side out of power to claim that runaway judges are flouting the law to impose their policy agenda.  That is precisely what the late 20th century Right did with their loaded version of originalism.  As the right acquired power, and grew more confident of their political footing, they paid less attention to text and/or original public meaning.  At least until the end of the recent 2023-24 term, conservatives didn’t drop their originalism banner; they just ignored its dictates when they proved politically inconvenient. (I exclude academics, e.g., David Strauss, from this critical observation, at least those who avoid litigation or other real-world sword-crossing with adversaries on the right.  As an academic exercise, critiquing the validity of originalism, or any interpretive methodology, is obviously legitimate and, indeed, valuable.)

Second, this clinging to labels and ideas past their sell-by date could reflect a broader dysfunction – disinclination to think outside their bubble.  It took a long time for liberal leaders to apprehend that originalism, whatever its merits as theory, has, as Robert Post and Reva Siegal first elaborated, proven a political plus. Now, of course, recognition is growing that the right is pushing its own version of a living constitution, untethered to constitutional text or history. But for many liberals, that insight has not prompted reconsideration of their discomfort with the originalist label, or even originalist argumentation. At least until recently, few took fully on board that their mid-20th century blockbuster victories in court had sparked a major political backlash. Their opponents had mobilized constituencies which contested the constitutional interpretations written into law by liberal advocates and judges. Countering this mass response requires politically marketable constitutional interpretive and messaging strategies – approaches that could resonate beyond liberal bubbles.  As noted above, during past epochs when the constitutional direction of the nation was in play, iconic liberal political leaders well understood the need to market their constitutional case to the people. 

Third and finally, there is likely a deeper, less tractable impediment to liberals’ donning the mantle of the Constitution and its framers’ design – ideological hostility. In many quarters of the left, the Constitution and framers, in particular, the original, “founding fathers” iteration, are held in anything but reverential regard. Currently, all liberals decry the Right’s overt spurn for the Constitution. But not a few liberals may invoke the Constitution while nurturing an inner, darker view. As Nikole Hannah-Jones put it five years ago in her Introduction to the New York Times’ 1619 Project, “This nation’s white founders set up a decidedly undemocratic Constitution that excluded women, Native Americans and black people, and did not provide the vote or equality for most Americans.”  Hannah-Jones echoes the disillusionment of the late African-American stand-out civil rights litigator Derrick Bell, who, as a noted professor at Harvard and other law schools, came to see his heralded victories, including Brown v. Board of Education, as “great moments that in retrospect promised much and, in the end, signified nothing except that the hostility and alienation toward black people continues in [different but resilient] forms . . . .”  Such fatalistic skepticism has been buttressed by the spread of identitarian ideology, that rejects the Constitution’s liberal, Enlightenment-based democratic republican, individualist, and procedural due process precepts with “a deep pessimism about the possibility of overcoming racism or other forms of bigotry [and a consequent] preference for public policies that explicitly distinguish between citizens on the basis of the group to which they belong.”  Slate’s Lithwick and Stern echo such sentiments, disparaging the “American religion of the Constitution,” for “shackl[ing constitutional law] to the antiquated views of dead white men.”

This is hardly the space, and I am hardly qualified, to mediate the merits of such – understandable –   constitutional skepticism with the zest of Jamie Raskin or the contemporary liberal justices. Suffice it to say that, from a strategic standpoint, coming late to the party is better than continuing to pout on the sidelines. Hopefully, this turn toward Constitution-grounded advocacy will prove durable and consistent.  Fair-weather constitutionalism is likely to turn out neither credible nor a clarion call to the mobilization that is now so needed to – literally – save the Constitution.

Simon Lazarus served as associate director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public-interest law firms in Washington, D.C. You can reach him by e-mail at simonlaz@comcast.net.