Sunday, November 28, 2004

Post by Burt Neuborne

I’ll start by confessing that I do not think there is much wrong with the current model, except that we have lost the ability to control it. Losing national election after national election to folks who do not share our political views has starved the courts of the intellectual fuel needed to drive a progressive vision of the constitution. If we can figure out how to win national elections again, we can re-start the machine. As a practical matter, I fear that notions of popular constitutionalism lead into our most serious problem – progressives have been unable to harness mass popular support for much of our agenda. If we had been able to marshal mass support for our economic and social agenda, the current model wouldn’t need fixing. Why we will do better labeling the progressive agenda a matter of popular constitutionalism rather than politics escapes me.

Having said that, I believe that progressives cannot continue to rely so heavily on courts to advance our agenda. The 20th century consisted of two fifty-year cycles. The first fifty years saw progressives use politics to advance an egalitarian economic agenda, with conservatives using the courts to maintain the status quo. Until the New Deal, extreme economic inequality was so blatant and widespread that mass discontent could be counted upon to fuel electoral support for egalitarian political programs. The major social advance – votes for women – was also obtained by classic majoritarian politics. Conservatives fought a rear-guard action in the courts, using substantive due process and the contracts clause to slow economic regulation, and a states’ rights judicial agenda to blunt social tranformation.

By the beginning of Roosevelt’s fourth term, conservatives had realized that courts would not bar significant regulation of the market, including wealth transfers. At about the same time, progressives realized that local, perhaps even national, political majorities would frustrate efforts to extend the social agenda to blacks, and would block significant wealth transfers to the poor. The two sides then executed an institutional pas de deux, with conservatives turning to politics to advance an agenda glorifying the market, celebrating the social status quo, and pressing a strong national security agenda; and progressives increasingly turning to courts to destabilize the frozen social status quo, and blunt the excesses of a national security state.

We are now, I believe, at the dawn of a new cycle in which progressives will, once again, use politics to blunt the massive economic discrimination latent in the conservative position, and conservatives will attempt to ignite an unbending judicial protection of property rights. By 2000, both sides had achieved the core agendas of the last 50 year cycle. Progressives succeeded in using courts to trigger a social revolution, attacking discrimination based stereotypical thinking, and ushering in an era of intensely protected speech and expression. Conservatives succeeded in using politics to enshrine the market as an untouchable myth.

In retrospect, the most enduring progressive victories during the cycle involved initial judicial recognition of an Enlightenment social value embedded in the text of the constitution, followed by effective political organization designed to persuade the society of the moral correctness of the result. Brown was reinforced and solidified by the civil rights movement. Reed v. Reed and its progeny was reinforced and solidified by the women’s movement. The classic pattern was constitutional decision, followed by political organization, culminating in effective implementing legislation.

Unfortunately, three important components of the progressive social agenda failed to make the cut. Efforts to use the constitution as a wealth transfer device on behalf of the poor failed to make it through the first phase. Except for the right to counsel cases – which were really a form of social blackmail – courts rejected every effort to find rights in the constitution that actually cost money to implement. The principal Supreme Court failure was in the education cases. The two other components, abortion and homosexual rights, are in limbo between judicial articulation and popular acceptance. Until the majority is persuaded of the moral correctness of the judicial decisions, they will operate as a drag on progressives’ efforts to assemble an electoral majority on economic issues.

One final staple of the progressive judicial agenda may not be worth defending at all. David Hume warned that cutting religion off from the state risked spawning an energized institution that could survive economically only by charismatic appeals to the populace. He urged feeding religion just enough to keep it from getting too hungry. He may have been right. The religious symbolism cases may do nothing but enrage voters who might be natural economic allies. Freezing religious institutions out of the delivery of social services to the poor may be even worse – it may enrage potential allies, while making to the poor worse off.

In short, what we need is not a rise in the decibel level to a world of popular constitutionalism, but old-fashioned political shoe-leather designed to persuade the majority of the moral correctness of a women’s right to choose, and the moral correctness of toleration of homosexual lifestyle – without the added freight of an obsessive preoccupation with church/state symbolism. But that argument is merely the appetizer for the main course – a serious economic agenda that recognizes the primacy of markets, but includes a practical means of breaking through to the hard core poor. We lost the 2004 election for two reasons. First, our side had virtually no positive economic agenda. Florida adopted a minimum wage amendment by 72%. Ohio lost 250,000 jobs in the past four years. But we had little or nothing to say to those potential allies about real economic change. Instead, we alienated potential economic allies by embracing a rigid church-state position that plays directly into the hands of conservatives seeking to prevent the emergence of a majority supporting economic reform.

If, as I believe, we are entering a cycle in which we must win at the polls, our most important structural goal must be to harness the potential political power latent in the 40% of the electorate that doesn’t vote. The 2004 election added 15 million voters, an increase of almost 12%. But we are still under 60% voter turnout. This time around, conservatives turned out rural/evangelical voters in numbers that matched the increased inner city/youth vote. One obvious tactic is to find ways to talk to the evangelical/rural voter on economic issues. Another is to recognize that the conservatives have just about used up their reservoir of new voters – the bulk of the remaining 40% are in demographic blocs that tend to vote for a progressive economic agenda. Thus, continued efforts to increase voter turnout by lowering the transaction costs of voting are crucial. Same day voter registration is the most promising approach. National standards for Presidential voting is another. Compulsory voting, with a conscientious objection out, is the most visionary. Australia is one of several democracies operating a successful mandatory voting program. We require jury service, education, census cooperation, vaccinations, military service, filing tax returns, Grand Jury cooperation – why not voting? If I were focusing on constitutional reform, that’s where I would begin.

Finally, to the extent that courts will play a role in advancing a progressive agenda during the next cycle, I believe that we must change our approach to constitutional text. Until now, either we ignore it, or treat it as an infinitely malleable phenomenon. Instead, I believe that we should concentrate on a holistic reading of text that treats context, structure and placement seriously. For example, why is the Second Amendment after the First? Why does the Bill of Rights close with the Ninth and Tenth? Why do the six textual ideas in the First Amendment open with establishment and close with petition? Law professors should stop teaching constitutional law as a random set of clauses, and begin exploring the richness of the entire text.

-- Burt Neuborne