For progressive lawyers, time for a new message

Two weeks ago, many of the finest legal thinkers in the country gathered at Yale Law School to discuss the Constitution in 2020. Their task, as conference participant David Boies put it, was to come up with a compelling progressive vision of the Constitution. Opposition to originalism — at least as practiced by contemporary conservatives — is not enough. To control the constitutional debate, progressives must have a powerful message of their own.

Over the course of the conference, speakers outlined several themes around which progressives could rally. Chicago professor Cass Sunstein argued for judicial minimalism, that is, self-restraint on the part of courts when addressing the constitutionality of statutes that do not threaten individual rights. Judicial minimalism, according to Sunstein, is tactically smart in a world where the courts are largely controlled by conservatives, and strategically sound because it allows the democratic process to function properly. Yale professor Bruce Ackerman advanced his citizenship agenda, which would make the improvement of American civic life the focus of constitutional law and public policy. Two proposals Ackerman was especially excited about were “Patriot Dollars” — money given to every voter to be spent as contributions to political candidates — and “Deliberation Day,” a biannual holiday where voters would gather to discuss pressing public issues.

Other speakers at the conference, Yale professor Reva Siegel in particular, advocated popular constitutionalism as progressives’ guiding principle. This approach denies courts a monopoly on constitutional meaning, and prioritizes the perspectives of legislatures and popular movements. Former Stanford dean Kathleen Sullivan, finally, presented a vision of courts as the guardian of minorities and other excluded groups. To enthusiastic applause, she declared in her talk that “Courts are good!”

There is much to be said for these approaches. All of them are vastly preferable to hidebound originalism, and all of them would provide progressives with a coherent principle to invoke when asked what exactly they stand for. But despite these advantages, I’m not sure if any of them satisfy Boies’ twin requirements of appropriate scope (applying to the Constitution but not the entire universe of public policy), and popular appeal (persuading legislators and ordinary people, not just law professors, that progressives are right and conservatives are wrong).

Judicial minimalism and legislative constitutionalism, first, are not the kind of terms that naturally rouse people to action. More importantly, they instruct courts to be deferential toward the political branches but say little about how particular constitutional cases should be decided. Ackerman’s citizenship agenda is largely non-constitutional. Whatever the policy merits of Patriot Dollars and Deliberation Day, it cannot be argued that the initiatives are constitutionally mandated. And Sullivan’s conception of courts as champions of disadvantaged minorities has, alas, been discredited by conservative rhetoric over the past two decades. Embracing her vision would play into the hands of critics who claim that progressives care more about particular interest groups than about the country as a whole.

If none of the approaches discussed at the Yale conference meets Boies’ criteria, are there any progressive constitutional visions that do? One that might is the idea — associated with Supreme Court Justice Stephen Breyer — that the Constitution’s core value is participatory democracy. According to Justice Breyer, both the text itself and the framers’ intent indicate that the Constitution seeks to create a vibrant democracy whose citizens are actively engaged in public life. And this democratic theme is not to be ignored by judges, but rather incorporated into both constitutional and statutory decisions.

Justice Breyer’s approach — he has dubbed it “Our Democratic Constitution” — has at least three points in its favor. First, it is clearly a constitutional vision, not an argument about public policy more generally. The approach says nothing about the laws that Congress should pass, but quite a bit about how their constitutionality should be adjudicated by courts. Second, the message that the Constitution is fundamentally about democracy is one that is likely to resonate with lawyers, politicians and regular people.

Third, and perhaps most important for progressives, the democratic Constitution approach would have positive consequences across the doctrinal spectrum. In the First Amendment arena, it would allow government regulation of commercial speech (which is largely unrelated to democratic values) and campaign advertising (since the rationale for regulating it is the improvement of the political process). Formalistic federalist decisions would be disfavored, as they often frustrate efforts by the democratically elected branches to creatively solve problems. And affirmative-action programs would be upheld because they encourage all Americans, even those with the bleakest backgrounds, to believe that they can attain high positions in higher education, business and government.

The democratic Constitution approach, though, is not without its problems. For one thing, “participatory democracy” is such a grand and vague term that it is often impossible to determine its implications for particular cases. In addition, an emphasis on democracy — even broadly defined so as to encompass citizen participation and deliberation — may entail less judicial protection of individual rights. What this means, perhaps, is that progressives should not try to choose a single theory to rally around. The democratic Constitution approach might be the best bet for mainstream public discourse thanks to its simplicity and intrinsic appeal. But it could be complemented by, say, Ackerman’s citizenship agenda in the public-policy arena and Siegel’s popular constitutionalism with regard to social movements. The end result might be messier than conservatives’ consistent originalism, but it would also be more consistent with progressives’ belief in dialogue and ideological diversity. “Our Democratic Constitution” must win its support democratically, not by diktat.



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

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