Sunday, November 28, 2004

Enough Self-Doubt. Our Vision is About Human Dignity. And it is Legitimate. -- Post by Peter Rubin

To begin with, I don’t think giving up on the courts is really an option. This is so for several reasons. First, so long as the institution of judicial review remains, they will remain critically important players in defining the meaning of the Constitution. While the federal courts (and we must never forget the state courts) may not provide much comfort in the next sixteen years, they are inevitably in dialogue with the other branches and the understandings they propound are and will be profoundly influential. Second, constitutionalism itself presupposes the existence of certain rights and the protection of certain groups that are and must be kept beyond infringement by the political branches. These rights and groups are defined in part precisely by their political unpopularity. So while popular constitutionalism and a renewed focus on our political leaders (well, let’s maybe start with the few reachable ones) must be a priority, and while some issues may be amenable to real movement outside the courts (say, for example, the principle of market-based social citizenship to use Willy Forbath’s example), in many areas constitutionalism without the courts is Hamlet without the Prince. Finally, the members of the Court are human and they are inescapably responsive to the culture around them, particularly the legal culture. Promulgation of a progressive understanding of the Constitution – the judicially enforceable Constitution – among lawyers and law students in every state can have a transformative effect on what judges think of as acceptable jurisprudence.

So what should we hope the Constitution will look like in the Year 2020 – the judicially enforceable Constitution? There is every likelihood that the constitutional edifice we would prefer – never fully built and great portions of which have already been disassembled by the conservative courts – is about to become (to borrow the Right’s phrase) the Constitution that is in Exile, while Justices Scalia, Thomas and their three new colleagues invite (back?) in the one that they have had waiting in the wings. We need to have a shared vision of what, at least broadly speaking, that Constitution in Exile is, so that we can support and work for its realization.

One premise of this conference is that progressives lack a coherent constitutional vision. (I take “progressives” to mean a broad spectrum of people: liberals, those further to the left who share their basic goals and are committed to working within our legal system, and those more toward the center or even center-right, “moderates” who share their basic approach though they might balance things out differently in particular cases.) But I think the premise is wrong. I think that the major elements of a progressive constitutional vision already exist. I think that vision is well-grounded in the text of the Constitution, which is a profoundly civil-rights- and civil-liberties-protective document.

So my first point is a procedural one: We have to challenge the liberal self-doubt that makes us buy into the shibboleth that progressives are “result-oriented” while conservatives are principled. That self-doubt leads us to think that that the constitutional conclusions reached by progressives are based on feelings or compassion, which are something other than law, that progressives are not “strict constructionists,” that progressives are not in favor of “judicial restraint” nor respectful of the appropriate judicial role; that progressives are “activists”; that progressives are merely result-oriented. The suggestion that we have no shared vision both understates the principle behind progressive constitutional interpretation by judges and scholars and overstates the degree of coherence necessary (as demonstrated by the conservative legal movement) for a serviceable constitutional vision to be implemented. The judicial history of the past twenty years, exemplified uniquely by the Supreme Court’s decision in Bush v. Gore, does demonstrate that the threats that the right has described are real: They include a failure of judicial restraint, result-orientated abandonment of principle, and the abandonment of the judicial role in interpreting rather than making law. These threats, though, come today not from moderates and progressives, but from conservatives. Until moderates and progressives believe that, until moderates and progressives believe that the law is on their side, they cannot hope to transform American law.

As for the substance of the progressive vision, an examination of the cases we would all generally regard as having been decided in the “progressive,” i.e. not Scalian-conservative, way I think provides the answer. A progressive constitutionalism regards the Constitution as serving a basic purpose: the protection of human dignity.

It does so through structural checks on, and separation of, governmental powers; it does so through the Bill of Rights; it does so through the Ninth Amendment; and it particularly does so through the hard-won Fourteenth Amendment in both its equality- and its liberty-protective aspects, both procedural and substantive. And this guiding principle is captured in American constitutional jurisprudence, from Brandeis (see his Whitney dissent), through Brown, through Brennan (see almost anything he wrote, but start with his dissent in Michael H. v. Gerald D.), even through the present moment (see Lawrence v. Texas; Grutter v. Bollinger; Planned Parenthood of Southeastern Pennsylvania v. Casey). The law is, indeed, on our side.

Obviously such a guiding principle does not answer all questions – nor does it tell us (although I think realpolitik, at least, does) whether for example we should fight for judicially enforceable minimum welfare rights, or whether we should leave protection of the poor to be legislatively enacted on the market-based social citizenship model. But it points us in a direction. And there is lots of work to do on which we agree before we get anywhere near disagreeing. How about (for example and off the top of my head): Overruling The Slaughterhouse Cases; interpreting Congress’s Section 5 power in a robust fashion; returning to the text of the Eleventh Amendment and overruling Hans; ensuring the Ninth Amendment has equal dignity with all other constitutional provisions; construing “persons” in the Fourteenth Amendment so it includes aliens and doesn’t include corporations.

The human dignity principle has never been fully embraced or articulated by our side as animating its constitutional vision. I think it is preferable though to the leading other contender, the Carolene Products principle, which provides important insights but which seems to me ultimately inadequate for a number of reasons (some of which Bruce Ackerman first articulated): First, I think Carolene Products – itself a product of a period of reaction marked by a lack of confidence in the very idea of judicial review of legislation for compliance with the Constitution – is at variance with the text of the Constitution. Thus, if text is to be our guide, it is descriptively incomplete as a constitutional theory, and it is, in part as a consequence, normatively inadequate to protect the most important American values. Literature, art and music would be unprotected under a merely democracy-enhancing view of the Constitution. By contrast, racially discriminatory legislation resulting from a perfectly-functioning democratic process would be constitutionally valid.

Second, it fails (as Lea Brilmayer has observed) to solve even the problem it was crafted to address: What greater hubris could a court have than to claim to know what the democratic process would have produced had it been functioning “correctly”? Finally, to the extent we are talking about a constitutionalism that can be articulated by those active in the democratically elected and policymaking branches, not just by courts, the very reason for the articulation of the Carolene Products theory, that unelected courts should not be invalidating democratically enacted legislation, is absent.

Human dignity as a guiding principle reflects constitutional text. It is as or more legitimate as a guiding principle than Framers’ intent, or historical practice, or maximization of economic efficiency, each put forward, though inconsistently used, by the right to justify conservative constitutional results. Its pedigree in our jurisprudence is strong. And it reflects broadly shared American values.

-- Peter Rubin