EJ Dionne’s latest column outlines how liberals might embrace constitutionalism:
For too long, progressives have allowed conservatives to monopolize claims of fealty to our unifying national document. In fact, those who would battle rising economic inequalities to create a robust middle class should insist that it’s they who are most loyal to the Constitution’s core purpose. Broadly shared well-being is essential to the framers’ promise that “We the people” will be the stewards of our government.
Kilgore comments:
[W]hile I offer best wishes to those who wish to argue for “constitutional progressivism,” I do think it’s important for progressives to raise an occasional objection to the general idolatry of the Founders and their work before competing for the allegiance of their acolytes. Yes, the basic constitutional framework has held up relatively well, and probably better than the Founders themselves had any reason to anticipate. But it still required a bloody civil war and significant amendment (not to mention judicial interpretation) to function effectively at all.
Jonathan Bernstein agrees:
The Constitution is no more a formula for social democracy (or whatever liberals want) than it is for a libertarian paradise. To the extent that it works (and it works extraordinarily well), then it’s appropriate to praise those who wrote it. But that’s all. We should use the Constitution with eyes wide open, aware of its problems and limitations.
Jack Balkin wants liberals to stop framing “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.
Ramesh chimes in:
The Constitution is in many ways a conservative document, and originalism a conservative methodology. Those aren’t points that can be proven in a blogpost, of course; suffice it to say that if that’s right, then conservatives should not be embarrassed that insisting on the original understanding of the document will tend to serve conservative ends and subvert progressive ones.
Dionne wants of course to press a progressive reading of the document—and because it deliberately leaves so many matters unsettled, some of the space the Constitution creates can be filled by progressive initiatives. But progressivism does not seem to me as good a fit with the constitutional structure, which is why so many progressives over the years have expressed impatience with that structure.
The Dish 