an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Constitution in 2020 is at once an effort to articulate a theory of progressive constitutionalism that can counter the ascendency of conservative constitutionalism’s theory of originalism – and is an effort to imagine what such a progressive constitutionalism can realistically hope to accomplish in the medium term. Notably, a majority of the essays in the book appear to give up on judge-centered approaches to constitutional change and seek to bring about progressive ends through legislation and social movements. Whether this is because the authors of the essays just don’t have their five votes on the Supreme Court as of yet (the cynical perspective of one recent review) – or whether it is because they have really grown convinced of some of the disadvantages of judge-led constitutional change – the volume makes clear that today’s mainstream liberals in the legal academy are no simplistic defenders of judicial review, judicial supremacy, and judicial liberal activism. The romance of FDR might remain, but the romance of the Warren Court has faded for most. This shift has been underway for some time, to be sure, but today’s law students are more likely to see their liberal law professors questioning Roe in earnest than previous generations. Brown may still be untouchable; but this book helps the next generation see clearly that if they want to own their Constitution and have it represent the best of their own constitutions, there are democratic methods outside the judiciary to make that happen.
Yet with all the enthusiasm progressives now display for methods of constitutional change outside the courts – and some scholars in the volume can’t help themselves from bubbling over with hope in light of Obama’s election – no one in the book spends any time getting serious about the structural deficits of our virtually-impossible-to-amend document that render democratic constitutionalism particularly hard to achieve. No one takes seriously the idea that maybe progressives ought to be devoting efforts to unlocking some of the structural barriers to facilitating democracy, both locally and nationally, through formal constitutional change. Larry Kramer’s contribution to the book hints in this direction, perhaps, if only obliquely. And surely if Sandy Levinson had been invited to write a chapter, more of this perspective would have been included.
One might have expected more attention to recent battles in state constitutionalism in the volume especially, if only because progressives have ultimately prevailed in state courts with arguments the federal courts have thus far rejected. But the ongoing liberal appropriation of “federalism” – a theme seemingly central to democratic constitutionalism – has virtually ignored the possibility of taking seriously some recent calls for constitutional conventions at the state level. One might learn a great deal about how to campaign for and run a successful constitutional convention to fix some of our structural barriers to a more robust democracy through super-democratic means that are neither judicial nor “merely” legislative.
A federal constitutional convention by 2020 is unlikely, of course. But several states are considering tinkering with their basic charters: New York and California are very populous states with very active conversations on the subject. Progressives should be interested in these efforts for their own sakes because local politics must be part of any serious progressive agenda. They should be interested instrumentally and pragmatically too because statewide constitutional conventions can teach us a lot about how to run an effective federal convention down the road. A fabulous resource to get a historical and legal perspective on state constitutional conventions more generally is available here.
In light of my service on policy and legal teams helping “Repair California” think through the details of its own call for a constitutional convention and my own recent proposal with Chris Elmendorf of UC-Davis for a way to fix California’s pathological budget process entrenched in its state constitution, my aim at the upcoming conference celebrating The Constitution in 2020 in October will be to shine a light on the details of modern constitutional convention design and the challenges in store for progressives willing to entertain the idea that structural change and new basic charters may be necessary to give democratic constitutionalism a fighting chance. We won’t have a federal convention by 2020. But we can by then hope to watch and influence some conventions as they unfold at the state-level, learn to overcome “conventionphobia,”, and, ultimately, refine what a convention should look like when we realize a new federal constitution is finally necessary to reclaim ownership over our political community from the dead hands of the past.