How Liberals Need to Approach Constitutional Theory—A Commentary by Robert Post ’77 and Reva Siegel ’86
The following commentary was published in the New Republic on September 18, 2007.
How Liberals Need to Approach Constitutional Theory
By Robert Post ’77 and Reva Siegel ’86
The right seems to have won the battle of constitutional theory. Ever since the days of Brandeis, progressives have conceptualized the Constitution as a "living charter" that could respond to evolving social needs. But in recent years progressives have grown confused and uncertain. They speak timidly of "super-precedents" or minimalism, but they are unable to advance any robust theory of constitutional interpretation. Now some liberals even propose that progressives borrow from conservatives and embrace a left-leaning version of "originalism." Recently in THE NEW REPUBLIC, Douglas T. Kendall and James E. Ryan argued that liberals should reclaim the Constitution and profess fidelity to its text and original meaning.
Liberals do need to re-learn how to make claims directly on the Constitution--an instinct they lost after decades of defending Warren and Burger Court precedents. But to advise liberals to make claims as originalists mistakes the source of originalism's power and misconceives what liberals must do to develop their own vibrant constitutionalism.
Some advocates of progressive originalism assert that originalism carries unique authority because it depicts judges as neutral umpires bound to apply disinterested rules of law. But this account of originalism's appeal is flatly wrong. Originalism rose to prominence in the Reagan era because, as Edwin Meese put it in an uncharacteristic moment of candor, it promised to remake the Court in a way that would halt the slide toward "the radical egalitarianism and expansive civil libertarianism of the Warren Court." Originalism was successful because it implicitly pledged to reconstitute the Court in ways that would entrench conservative values in matters of faith, family, race and property. Wherever the theory of originalism produces results that are inconsistent with this pledge, it is blithely ignored. Voters are not attracted to the discipline or jurisprudence of originalism; they are drawn instead to its capacity to reshape Supreme Court precedents into a "living constitution" for right-wing convictions.
This attraction expresses a deep truth about our constitutional system. Americans want our Constitution to possess both legal and democratic authority. The Constitution carries authority as law only if we recognize it as our Constitution. When Americans are estranged from the Constitution the Court enforces, they mobilize to take back the Court.
It is thus backwards to argue that originalism has authority because it disconnects constitutional law from contemporary ideals. Exactly the opposite is true. We ought to learn from the right's success that we need forms of constitutional interpretation that convincingly ground contemporary progressive ideals in the Constitution, just as originalism offers a form of interpretation that convincingly grounds a contemporary conservative vision of family, faith, race, and property in the Constitution. When vision and method are aligned in this way, each grows in authority.
This suggests that advocates of progressive originalism make two mistakes. First, they confuse the constitutional arguments of the right for its mobilizing vision--as if Americans were moved to demand a conservative Court in order to preserve a method of interpretation. Second, they assume that the American public will credit constitutional arguments only if such arguments invoke "original understanding" (or, in some versions, the original "meaning") of the Constitution. The original understanding of the Constitution does carry great authority, which progressives and conservatives each can invoke. But Americans routinely use many other forms of persuasion to convince one another about the Constitution's meaning. They appeal to text, precedent, history, structure, tradition, purpose, principle, prudence, and ethical ideals.
Consider, for example, the recent debate over school desegregation. The controversy was far more about the meaning of Brown v. Board of Education than about the original meaning of the Fourteenth Amendment. Precedents and post-ratification history have always figured prominently in American constitutional deliberation. Constitutional arguments typically draw upon our experience living under the Constitution as well as our experience in making it. Constitutional arguments offer competing accounts of our national identity; they entail disagreements about who we are as a people.
It is a mistake to require progressives to defend their ideals using only original meaning. Our understanding of racial and gender equality, for example, emerged in the latter half of the twentieth century, almost a hundred years after the ratification of the Fourteenth Amendment. The nation is proud of those who fought to vindicate this understanding of equal citizenship, as the struggle to claim Brown's mantle in the recent school cases demonstrates. Progressives should speak from this pride rather than adopt modes of argument that would shackle them to the constitutional understandings of the nineteenth century.
The architects of the Reagan revolution claimed that originalism was the only legitimate mode of interpretation, and they sought to portray originalism as a mechanical theory of interpretation that enforced the framers' expected application of constitutional text. These two constraints made originalism into a hard weapon designed to dismantle Warren Court precedents. Kendall and Ryan envy the force of this weapon and admire Justice Scalia's authority in deploying it, yet they also appear ambivalent about the strict methodological constraints by which orginalism was defined.
At times Kendall and Ryan seem to suggest that progressive originalism affirms nothing more than that liberals "are accountable to the Constitution" itself. We agree that an important achievement of originalism was to establish modes of constitutional interpretation that affirmed living conservative ideals as constitutional values rather than as mere political desiderata. If conservative success has a lesson to teach, it is that the left needs modes of constitutional argument that will do the same for progressive ideals. Progressives need modes of interpretation capable of demonstrating that fidelity to the Constitution requires the vindication of progressive values. But this point has nothing to do with originalism. If progressive originalism has any analytic content at all, it must be that the history of the Constitution's ratification should hold pride of place in the construction of constitutional meaning.
Progressives ought to be wary of a method of interpretation that strongly privileges the history of constitutional lawmaking over the experience of living under the Constitution. Our Constitution has emerged from the understandings of those who made and applied it over many generations. We are faithful to the Constitution when we respect this trust. The many forms of constitutional argument Americans use represent our best efforts to appreciate the meaning of this trust. They are our attempts to understand the purposes of the Constitution.
Quite simply, then, progressives can argue that they are committed to achieving the Constitution's purposes. Protecting equal citizenship in work, education, and the family is necessary to establish the democracy the Constitution seeks to secure. Subordinating arbitrary executive power to the rule of law is necessary to safeguard the freedom the Constitution exists to preserve. Enabling the federal government to meet the needs of its citizens is necessary to sustain the powerful nation the Constitution seeks to create.
If progressives cannot make this case to the American people, they have no hope of "taking back the Court."
Robert Post is the David Boies Professor of Law at Yale Law School. Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at the Yale Law School.