Simon Lazarus
As few question, the Supreme Court
majority’s end-of-term presidential immunity head-scratcher, Trump v. United
States, constitutes a warp-speed shift to a new constitutional universe. It
casts aside not just 20th century Progressive-New Deal-Great Society
liberal governance, not just the “Second Founding” Reconstruction Amendments,
but the core grand design for a democratic republic written unambiguously into
the original,1789 Constitution. As
echoed across the ideological spectrum, Chief Justice John Roberts’
opinion shed all pretense of
maintaining the legal Right’s long professed “originalist” fidelity to
text and the framers’ design.
Liberal originalist Akhil Amar wrote that the decision turns
the Constitution “inside out and upside down, saying things that are flatly
contradicted by the document’s unambiguous letter and obvious spirit.”? On the right, conservatives have echoed
Professor Michael Rappaport’s acknowledgement that “presidential immunity does not accord with [the
Constitution’s] original meaning.”
After decades of inattention to
their right-wing adversaries’ making capture of the Court a political
priority, liberals have begun to correct that default. Liberal poll respondents
and focus group participants now rate it a top tier ballot box issue. Political
leaders, including President Biden, spotlight the right-wing justices’ ethical
misadventures.
But many liberals, especially
advocates and policians, still fight this existential war missing two strategic
imperatives. As I have written,
and as our host Jack Balkin has detailed,
their predecessors recognized these necessities, and deployed them, at earlier
historical moments when the liberal enlightenment values enshrined by the
Constitution were similarly up for grabs – FDR, Lincoln, Frederick Douglass,
and the original framers themselves. The first of these two essentials is that
liberal leaders must take their constitutional case – their understanding of
the Constitution – directly to the people, to galvanize decisive political
affirmation of that understanding. Instead, with less than a handful of
exceptions, current liberal politicians have shied away from arguing about what
the Constitution means, leaving that job up to lawyers and judges in litigation.
The second imperative is a corollary of the first: effective political constitutional messaging requires centering originalist and textualist rationales, adroitly tailored for political audiences. Maryland Representative Jamie Raskin, lead counsel for the then-Democrat-controlled House of Representatives in Donald Trump’s Senate impeachment trial, has recently come out as the first liberal politician to grasp this necessity. Unnoticed amidst the furor over Trump v. U.S. and the Court’s other end-of-term blockbusters, Raskin expounded a detailed – self-styled “originalist” -- roadmap for liberals to regain traction in the 21st century war over the Constitution. On May 29, in the last of an anti-originalist Slate series entitled “How Originalism Ate The Law,” Raskin countered “I might be the closest you’ll come to somebody who’s a real originalist.” He then elaborated a vision emphasizing that, as a matter of black-letter law, the Constitution means the whole Constitution, not just the 1789 version, including two centuries of amendments. Further, he stressed, “The whole trajectory of our constitutional growth has been toward more democracy and greater inclusion.”
Trump v. U.S. is the most brazen example yet of
the Supreme Court majority’s a-textual, a-historical, now patently
anti-constitutional political and ideological agenda. But it is hardly the only
one. To cite a few examples well-known to readers of this blog: Citizens
United v. Federal Election Commission (2010) and its progeny, mocking all
previous understanding of the first amendment; Shelby County v. Holder (2013)
and Brnovich v. Democratic National Committee (2021), gutting the
1965 Voting Rights Act, and in effect erasing the Amendment’s mandatory grant
of broad authority that “Congress [not the Supreme Court] shall have
power to enforce this article by appropriate legislation;” Dobbs v. Jackson
Women’s Health (2022), inventing a law-free rule that contemporaneous 1868 societal
practices trump judicial recognition of “unenumerated” rights, that ignores
the Ninth Amendment’s explicit direction that “The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.”
Liberals need to train public
attention on their adversaries’ disregard for these and other express
constitutional commands. That means, as Raskin’s exposition illustrates, not
undercutting such straightforward messaging with distracting polemics against the
label, “originalism.” Popular audiences no doubt hear bickering for or against
such arcana as befuddling squabbles over cultish esoterica they want nothing to
do with.
However, spotlighting originalist arguments,
as distinguished from the label, is another matter. And marshalling such appeals is not simply a
tactical plus. On the merits, as shown
by academics Amar, Balkin, and Jim Ryan, liberal justices Elena Kagan and
Ketanji Brown-Jackson, and now Representative Raskin, conscientious embrace of
text and framers’ design usually (not always, of course) favors liberal
outcomes. This is especially apparent on current existential issues about preserving
the democratic republic that was the core goal of the original eighteenth
century constitutional project. That’s exactly why, increasingly, ideological,
political, and now, judicial leaders of the Right have felt obliged to throw
their longstanding signature “originalism” credo under the bus.
But even now, some of the most
accomplished liberal legal leaders can’t seem to set aside this
anti-originalist fixation. Berkeley Law dean, and eminent Supreme Court litigator,
Erwin Chemerinsky published a book in 2022, entitled Worse Than
Nothing: The Dangerous Fallacy of Originalism. Unwittingly, that label
reinforces the Right’s snark
that liberals have “nothing”—no strategy, no theory to counter conservatives’
originalism. The Brennan Center for Justice, justly renowned for
indispensable victories on electoral democracy and many other fronts, continues
to churn
out tracts with titles like “Originalism Run Amok at the Supreme Court,”
(2022), “What Originalism Means for Women,” (June 12, 2024), and “Opposing
Originalism,” (May 12, 2024). The Washington Post’s Deputy Editorial
Page Editor and Pulitzer Prize finalist Ruth Marcus devoted
more than 5,000 words to a 2022 opinion essay entitled “Originalism is Bunk.”
Ironically, the most fervid recent
expression of anti-originalist zeal has come from the very luminary pundits who
provided Jamie Raskin with his platform for laying out his originalist-centered
strategy, Slate’s Senior Editors Dahlia Lithwick and Mark Stern. On May
8 Lithwick depicted the “How Originalism Ate The Law” series in which Raskin’s
May 29 interview appeared, as “about the legal theory that ruined everything.”
Her introduction promised to unmask this “drunken ideology” as “the invisible force that allows a
handful of unaccountable jurists to unravel both progress and understanding
along with the wants of the majority.”
Ironically,
Lithwick herself explained why Raskin’s punchy brand of originalism is
essential for marketing liberals’ constitutional case to American audiences.
“The Constitution,” she headlined, “is America’s bible.” She cited a May 4 interview with
Balkin, who explained that, Americans’ uniquely “worshipful attitude” to the
Constitution, the reason why “People carry copies of the
Constitution, the declaration in their pockets [and] pull them out and read
them,” is that, uniquely, America’s was “a revolution in which the country, the
imagined people, the American people, and the national creation are supposed to
have occurred at roughly the same time.
And the people who make the Constitution . . . constitute the people as
a people.” No other country, Balkin
explained, has this “magical combination.”
But, unlike Raskin, and Balkin (whose “living” and “framework” originalism closely matches that of Raskin), Lithwick, and her co-host and
colleague Mark Stern, do not connect these dots, to anchor their policy agenda
in the public’s secular religion. On the contrary, they deride popular
reverence for the Constitution as, in Lithwick’s terms, “strange” and
“fraught.” Stern, in his May 8 contribution to the series, went so far as to attack the left’s star rookie justice, Ketanji
Brown-Jackson, for “pitch[ing] this theory [on] her second day on the bench –
as if to warn her conservative colleagues that their bogus originalism would no
longer go unchallenged.” Likewise, the Post’s
Marcus berates the liberal justices for falling into a “trap,” with their
media-friendly originalist arguments and messaging, as have other prominent
liberal advocates. The sub-title of Stern’s May 8 Slate essay asserts
that Brown-Jackson’s “attempt to reclaim originalism from conservatives isn’t
working.” But, contradictorily, he acknowledges in the article, that “[P]erhaps
her shaming strategy worked, since the court ultimately [in the decision
following the oral argument in which she spoke] delivered an unlikely victory
for the Voting Rights Act.” Indeed, Stern
acknowledges that, “on select topics, [the liberal originalism] tactic can work
marvels.” Examples, he specified, are
“race” and “Federal power . . . since the Framers clearly gave Congress
sweeping powers to regulate commerce.”
To his credit, he also took due note of Justice Jackson’s opinion for a
7-2 majority that upheld, with “an originalist defense,” Congress’ power to
create private rights through its spending power.” Even if those were the only areas where
originalist arguments might work, that’s hardly a narrow sliver of “select
topics;” it covers much of the spectrum of liberals’ national policy
priorities. And bear in mind that the principal value of originalist
argumentation is its potency with political audiences, not judges or other
legal cognoscenti, whose outcome preferences are more likely to be set in stone
than those of run-of-the-mill casual observers.
So
all this begs a question – why do expert liberal constitutional gurus disdain a
manifestly worthwhile strategy, with virulence akin to the religious passion
they decry in the Constitution admirers they scorn? Why, instead, do they not flaunt the
imprimatur of what all acknowledge as America’s secular scripture? The question
is all the more puzzling because, by anchoring their case in the broad directives
of the Constitution and its framers, liberals lose little, if anything, of
substance. After all, (“original”) text and design prescribe a regime
substantially as flexible and adaptable as the “living constitution” brand many
liberals have been wont to favor. The three liberal justices succinctly
spotlighted this truth in their dissent in Dobbs: “In the words
of the great Chief Justice John Marshall,” they wrote, “our Constitution is
‘intended to endure for ages to come, and must adapt itself to a future seen
dimly,’ if at all. . . .” Moreover, thus
re-grounding their political brand would have zero effect on how liberals go
about actually interpreting the Constitution in specific cases or on
specific issues. When performing such lawyerly analysis, everyone,
right or left, agrees, at least in principle, that one must start with the text
and framers’ design. And all sides also
understand that, because of the terseness of the U.S. Constitution’s
provisions, the inquiry rarely stops there, especially on the politically
charged issues that both liberals and conservatives care about most
passionately.
So why should liberal advocates not
breeze through this wide-open door, rebrand their approach, link their agenda
to the document and its framers, and validate their esteem for both? Here are three hypotheses:
First, comforting habits of mind are
hard and slow to shake. Current ardent anti-originalist liberals –
advocates, lawyers, pundits, judges – may be uncritically recycling arguments
familiar from a past era – from the late 1930s till the early twenty-first
century -- when they controlled, or at least dominated, legitimate
constitutional interpretation and the federal judiciary. If so, they have
overlooked a pattern evident from the history: The idea, or the practice, of a
“living constitution,” unconstrained by written law or original meanings, works
fine for the side that happens to hold power at a given time. So it is natural
for the side out of power to claim that runaway judges are flouting the law to
impose their policy agenda. That is
precisely what the late 20th century Right did with their loaded
version of originalism. As the right
acquired power, and grew more confident of their political footing, they paid
less attention to text and/or original public meaning. At least until the end of the recent 2023-24
term, conservatives didn’t drop their originalism banner; they just ignored its
dictates when they proved politically inconvenient. (I exclude academics, e.g.,
David Strauss, from this critical observation, at least those who avoid
litigation or other real-world sword-crossing with adversaries on the
right. As an academic exercise,
critiquing the validity of originalism, or any interpretive methodology, is
obviously legitimate and, indeed, valuable.)
Second,
this clinging to labels and ideas past their sell-by date could reflect a
broader dysfunction – disinclination to think outside their bubble. It
took a long time for liberal leaders to apprehend that originalism, whatever
its merits as theory, has, as Robert Post and Reva Siegal first elaborated, proven
a political plus. Now, of course, recognition is growing that the right is
pushing its own version of a living constitution, untethered to constitutional
text or history. But for many liberals, that insight has not prompted
reconsideration of their discomfort with the originalist label, or even
originalist argumentation. At least until recently, few took fully on board
that their mid-20th century blockbuster victories in court had
sparked a major political backlash. Their opponents had mobilized
constituencies which contested the constitutional interpretations written into
law by liberal advocates and judges. Countering this mass response requires
politically marketable constitutional interpretive and messaging strategies –
approaches that could resonate beyond liberal bubbles. As noted above, during past epochs when the
constitutional direction of the nation was in play, iconic liberal political
leaders well understood the need to market their constitutional case to the
people.
Third and finally, there is likely a
deeper, less tractable impediment to liberals’ donning the mantle of the
Constitution and its framers’ design – ideological hostility. In many quarters of the left, the
Constitution and framers, in particular, the original, “founding fathers”
iteration, are held in anything but reverential regard. Currently, all liberals
decry the Right’s overt spurn for the Constitution. But not a few liberals may
invoke the Constitution while nurturing an inner, darker view. As Nikole
Hannah-Jones put it five years ago in her Introduction to the New York
Times’ 1619 Project, “This nation’s white founders set up a decidedly
undemocratic Constitution that excluded women, Native Americans and black
people, and did not provide the vote or equality for most Americans.” Hannah-Jones echoes the disillusionment of
the late African-American stand-out civil rights litigator Derrick Bell, who,
as a noted professor at Harvard and other law schools, came to see
his heralded victories, including Brown v. Board of Education, as “great moments that in retrospect promised
much and, in the end, signified nothing except that the hostility and
alienation toward black people continues in [different but resilient] forms . .
. .” Such fatalistic skepticism has been
buttressed by the spread of identitarian ideology, that rejects the Constitution’s liberal, Enlightenment-based democratic republican,
individualist, and procedural due process precepts with “a deep pessimism about
the possibility of overcoming racism or other forms of bigotry [and a
consequent] preference for public policies that explicitly distinguish between citizens
on the basis of the group to which they belong.” Slate’s Lithwick and Stern echo such
sentiments, disparaging
the “American religion of the Constitution,” for “shackl[ing constitutional
law] to the antiquated views of dead white men.”
This is hardly the space, and I am hardly qualified, to mediate the merits of such – understandable – constitutional skepticism with the zest of Jamie Raskin or the contemporary liberal justices. Suffice it to say that, from a strategic standpoint, coming late to the party is better than continuing to pout on the sidelines. Hopefully, this turn toward Constitution-grounded advocacy will prove durable and consistent. Fair-weather constitutionalism is likely to turn out neither credible nor a clarion call to the mobilization that is now so needed to – literally – save the Constitution.
Simon Lazarus served as associate director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public-interest law firms in Washington, D.C. You can reach him by e-mail at simonlaz@comcast.net.