Monday, July 07, 2014

E.J. Dionne wants to reclaim the Constitution


E.J. Dionne wants progressives to reclaim the Constitution for themselves. He also appears to endorse a version of popular or democratic constitutionalism. Excellent ideas all around, and it's great that prominent opinion columnists like Dionne are beginning to make use of and popularize what liberal academics have been working at for the last couple of decades.

In his short op-ed Dionne cites to B'zation blogger Joey Fishkin's piece with Willie Forbath, The Anti-Oligarchy Constitution, as well as linking to David Strauss's book, The Living Constitution and  Michael Dorf's review of David's book and my Living Originalism.

In fact, various forms of popular and democratic constitutionalism, each of which seek to reclaim the Constitution in different ways, have been a dominant strain in liberal academic scholarship since the 1990s, beginning with Larry Kramer's The People Themselves and Mark Tushnet's Taking the Constitution Away from the Courts, and continuing with Robert Post and Reva Siegel's scholarship on democratic constitutionalism. Bruce Ackerman's huge multi-volume project, We the People, is a form of originalist popular constitutionalism, as is Akhil Amar's America's Constitution, in a very different way. Sandy Levinson pointed the way even earlier in 1989, with his articulation of "protestant constitutionalism" in Constitutional Faith.  Meanwhile Doug Kendall's valuable work at the Constitutional Accountability Center, although directed primarily at courts, has been devoted to reclaiming constitutional text, history and structure for liberals.

As this abbreviated list suggests, liberal constitutional scholars, at least, have been reclaiming the Constitution for some time.

Yet if liberals want to reclaim the Constitution in politics as well as in law,  as Dionne hopes, they must abandon the shibboleth that all right-thinking liberals must oppose living constitutionalism to originalism. I think this a false choice, and ironically, it frames the debate on terms set by movement conservatives in the 1980s.

It was conservatives, and not liberals, who insisted on drawing a clear distinction between originalism and the work of the Warren and early Burger courts. Liberals had been quite happy to draw on adoption history to explain how and why enduring constitutional commitments should be applied to present-day circumstances. As Frank Cross has pointed out in his article Originalism: The Forgotten Years, the trend of increasing citations to the founders in Supreme Court opinions begins with the Warren Court. And the great avatar of the living Constitution, Franklin Roosevelt, explained and defended his constitutional commitments in terms of fidelity to the constitutional text and to the founders'  vision.

If you start by accepting that the difference between conservative and liberal visions of the Constitution is that one attempts to be faithful to the text and to the founders' vision and the other does not, well, that's just not a very helpful way for liberals to talk, either to themselves, or to the general public.  And of course, that's precisely why modern movement conservatives sought to frame the choice in that way.

The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. Liberals should claim for themselves-- as conservatives already have--not only the constitutional text but the entire constitutional tradition, including the ideals and hopes of the generations that fought to create a new nation and establish the Constitution.

The founders--including the Reconstruction framers who gave us the 13th, 14th and 15th amendments--created a framework on which later generations must build to realize the Constitution's great promises of liberty and equality. It is our job, in our own day, to further that great work. That is the liberal vision of the Constitution, and it is both originalist and living constitutionalist.

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