The route to a progressive Constitution, with a stop in the Elm City

During the final year of the Reagan Administration, the Department of Justice’s Office of Legal Policy published two remarkable documents. One, titled “The Constitution in the Year 2000,” described important Supreme Court decisions in 15 constitutional areas, and discussed various paths that the Court might take in the future. For instance, the Court might grasp that “the Constitution’s text does not in general impede the states in their effort to enforce public morality by law,” or it might reject this “admonition of caution and restraint” and “dramatically extend the right [of privacy] to invalidate numerous laws … that reflect conceptions of public morality.” The Office of Legal Policy did not say in so many words which option it preferred, but its preferences are not difficult to discern.

The second document, “Guidelines on Constitutional Litigation,” gave detailed instructions to DOJ attorneys about how to approach constitutional litigation. Henceforth, government briefs would include a section on the original understanding of the relevant constitutional provision. This innovation would “help to focus judges on the text of the Constitution and away from their personal preferences or from incorrectly reasoned court precedent.” The Guidelines also helpfully listed cases that DOJ attorneys should rely on, as well as decisions inconsistent with the government’s views on constitutional law.

In the 16 years since these documents were published, many of the tactics described in the Guidelines have become conventional wisdom for conservative litigants, and many of the preferences the Office of Legal Policy not-so-subtly expressed have become reality. Of the 15 areas described by “The Constitution in the Year 2000,” conservatives have arguably made progress in all but a handful. Exclusionary rules for improperly obtained evidence have been curbed, Roe v. Wade’s trimester system has been scrapped, socioeconomic status has been rejected as a suspect categorization under the Equal Protection Clause, states’ rights have been invigorated, etc. To a large degree, we are now living in the constitutional world envisioned by the Office of Legal Policy in 1988.

Many of us, of course, are not happy to be living in this world. It strikes us as a place where the government is handcuffed when it tries to solve society’s most pressing problems, where individual dignity is not sufficiently respected, and where arid formalism is privileged over social justice. Sharing many of these concerns, the Yale Law School chapter of the American Constitution Society is organizing a conference this weekend on the Constitution in 2020. The goal of the conference is to bring together the country’s finest progressive legal thinkers, and begin the process of articulating a coherent progressive vision of the Constitution.

Formulating and achieving a progressive constitutional vision is critically important, but it is not likely to be easy. For one thing, progressives do not currently control any of the branches of government. Unlike conservatives in 1988, progressives cannot draft bold statements of their legal philosophy and have them immediately implemented by the Department of Justice. Progressives also face a president who has expressed his preference for “strict constructionist” judges, a Congress uninterested in resolving social and economic inequalities, and the same Supreme Court that has carried out much of the Office of Legal Policy’s conservative agenda over the past 16 years.

Progressives have the further “problem” of disliking top-down decision-making on issues as important as our constitutional future. Prominent progressive thinkers diverge wildly in their views on what constitutional law should look like in 2020, with some arguing for judicial minimalism and others hoping to breath new life into now-defunct constitutional provisions. It is inconceivable that any progressive figure or institution would write an Office of Legal Policy-style memo stating what progressives’ goals are for the courts and how they should be achieved. Or rather, such a memo might be written, but it is inconceivable that progressives would then treat it as the definitive expression of their constitutional aspirations.

What this means is that the easier routes for achieving change in constitutional doctrine are blocked to progressives. The White House, Congress and the Supreme Court are all controlled by legal conservatives. Even if they were not, progressives’ commitment to open dialogue would prevent them from ramming their agenda through the legislature and the courts. So progressives will have to advance their vision of the Constitution the hard way. They will have to talk at length with one another about their values and priorities. They will have to cultivate consensus through reasoned persuasion, not decrees from on high. They will have to frame their positions in ways that resonate with politicians and ordinary people. They will have to make their case at every level — federal, state and local — while expecting setbacks to be as frequent as successes.

There is no question that the road to a progressive Constitution is a long one. But this weekend’s Law School conference, which is open to all, is an important step in the right direction. As Chad Golder, one of the student co-founders of the conference, says, “When Barry Goldwater published ‘The Conscience of a Conservative’ in 1960, his radical views were shared by only a small percentage of the Republican Party and the American public. Just 20 years later, Ronald Reagan was turning those ideas into policy.” Golder’s hope (and mine) is that the conference will result in the articulation of a set of progressive ideas — call them “The Conscience of a Progressive” — that will also become law in the not-too-distant future.



Nicholas Stephanopoulos is a second-year student at the Law School. His column appears on alternate Mondays.

Comments