Tuesday, May 26, 2009

The Return of Liberal Constitutionalism


This Wall Street journal article discusses Reva Siegel's and my edited collection, The Constitution in 2020 (Oxford University Press 2009) and Pam Karlan, Goodwin Liu and Chris Schroeder's book, Keeping Faith With the Constitution (American Constitution Society 2009).

These two books are part of a renaissance of liberal constitutional thought that has emerged in the past five years. The original Constitution in 2020 Conference held at Yale Law School in April 2005 brought together many different legal thinkers to think about how liberals could respond to the conservative constitutional views that had dominated American politics for the past twenty five years. The Constitution in 2020 project was begun shortly after George W. Bush's 2004 election, when it seemed that conservatives would be in power forever. Five years later, the conservative movement seems to have exhausted itself, at least for the moment. Now it is time for liberals to offer a positive vision of the Constitution in a new political era.

The new liberal constitutionalism has many different versions. This should not surprising given the many talented people doing work these days. Nevertheless, three key themes have emerged:

The first theme is constitutional fidelity. Karlan, Liu and Schroeder call their theory constitutional fidelity. Their approach to interpretation builds on previous work by constitutional scholars, including my own. Constitutional fidelity means fidelity to the constitutional text and to the principles stated in the text or that underlie the text. Because these principles are often abstract and open ended, it falls to each generation to decide how to apply them in their own time. The text and basic principles endure, but their applications can change over time. The semantic meaning of the constitutional text does not change without amendment, but constitutional constructions that attempt to implement the text and flesh out its vague and abstract clauses in practice can and have changed over time in response to changing circumstances. It is in this sense that people say that the Constitution's "meaning" changes over time. What changes is how we apply its words, in particular its abstract and vague clauses, not the dictionary definitions of the words themselves. The words "equal protection," for example, mean what they meant in 1868, but how we apply them is very different today. Thus, what people sometimes call living constitutionalism is fully consistent with fidelity to the constitutional text and its underlying principles.

The second theme is democratic constitutionalism. Reva Siegel and Robert Post coined this term to describe the ways in which constitutional decision making by courts is always in dialogue with constitutional claims made in politics. Courts have neither the first word nor the last word on the meaning of the Constitution. Rather, their interpretations reflect the values of their time, including the work of political and social movements that make claims on the Constitution and shape constitutional culture. In addition, the decisions of courts often give rise to protest and counter-mobilizations that eventually shape the way that doctrine develops. Because in our system of government ordinary citizens have both the right and the ability to talk back to courts, the development of constitutional law maintains its democratic legitimacy.

Democratic constitutionalism has a second meaning-- the idea that in the current age many of the most important constitutional questions are best handled by the political branches rather than by courts. (This is sometimes called legislative constitutionalism.) The civil rights revolution of the 1960s and 1970s is famous for its judicial decisions, but in fact many of the most important innovations came from the great civil rights acts of the 1960s, which the courts ratified. Today many of the most important articulations of constitutional values will come not from the development of new constitutional doctrines by the courts, but from congressional statutes that promote constitutional values. For example, economic and social rights, like rights to health care and education, are best achieved through legislative action, with courts playing a supporting role rather than taking the lead. In the long run, then, courts tend to support and ratify constitutional constructions by the national political process, and many of the most important constitutional constructions come from the political branches.

The third theme is redemptive constitutionalism. Redemptive constitutionalism is the idea that the Constitution is part of an inter-generational project to create, in the words of the Preamble, a more perfect union. The Constitution contains commitments that we have only partially lived up to, promises that have yet to be fulfilled. Our Constitution is a work in progress, and it belongs to each generation to do its part to fulfill its great promises. Redemptive constitutionalism assumes that the Constitution is deeply aspirational, and that pledging fidelity to the Constitution means working to improve our society and to achieve its ideals of liberty and equality over time. Redemptive constitutionalism is the great American tradition of constitutional change: in each generation people have seen injustice in their society and made claims in the name of the Constitution in order to remedy these injustices. The great social movements that secured the basic rights and liberties that Americans now take for granted-- for example, the civil rights movement and the women's movement-- are examples of redemptive constitutionalism at work.

These three ideas-- democratic constitutionalism, redemptive constitutionalism, and constitutional fidelity-- are all connected. Ordinary citizens, social movements and political parties make claims on the Constitution, arguing about what the Constitution truly means, and calling for its restoration and its redemption. If they succeed in persuading others to their point of view, they eventually affect how the Constitution is interpreted by courts and built out by the political branches. This is the process of democratic constitutionalism. In each generation, Americans argue with each other about how best to apply the Constitution's enduring principles and redeem them in their own time. They respond to changing times and circumstances by asking how to apply a basic text and enduring principles that do not change. This is the practice of constitutional redemption, and it is also the way that Americans engage in constitutional fidelity. It is how each generation pledges faith in the Constitution and makes the Constitution its own.

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