Tuesday, October 12, 2004

Post by Mark Tushnet

My contribution to the conversation (about 250 words, the thrust of
which will be familiar to some/many of you):

For me, the Constitution in 2020 will be one that recognizes what
Jeremy Waldron calls the dignity of legislation. In my view, for too
long progressives have taken the courts as the focal point of their
constitutional thinking, without recognizing the extent to which the
one Court they truly admired - the Warren Court - was successful
precisely because, and to the extent that, it was collaborating with
the political branches in advancing a common program.

Recognizing the dignity of legislation would allow constitutionalists
to understand how major progressive legislative accomplishments of
the modern era - from Social Security to Medicare to the Americans
with Disabilities Act (among others) - are constitutional
accomplishments as well. They are constitutional accomplishments -
indeed, I think more important constitutional accomplishments than,
for example, Miranda v. Arizona - because they advance the central
commitments of the U.S. constitutional order, to liberty, equality,
and human dignity.

This perspective does not generate strong programmatic commitments,
but rather an orientation to take in the process of working out the
priorities of constitutional law broadly conceived.

(And now for some grumpiness: I doubt that constitutionalists can
recover a sense of the dignity of legislation if it is apparent that,
should they be unable to achieve their programmatic goals through
legislation, they will be perfectly happy to achieve them through
litigation. Or, put another way, the Constitution in 2020 will be
one within whose confines progressives will actually fail to
accomplish some of what is most important to some of us.)

--Mark Tushnet