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
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
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 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.
by JB [link]