A Progressive Constitution

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.