Friday, November 26, 2004

Post by Dawn Johnsen

Those who seek to promote a progressive Constitution in 2020 absolutely must, as others have suggested, attend not only to the Constitution as judicially interpreted and enforced, but also to the roles of the political branches in upholding constitutional values and contributing to the determination of constitutional meaning. In addition to the essential task of working through differences in view(s) on the proper roles of each of the branches, we should work to effectively disseminate our views in ways targeted at opinion elites and government officials. We need to promote a less court-centered constitutional vision (for obvious reasons).

Even without resolving the substantial differences that exist among progressive academics (a brief digression, we always should be on the lookout for ways to promote our progressive vision despite differences among us), we can educate and encourage responsible political branch action regarding the basic (but far too little understood and respected) concept that the courts underenforce constitutional rights, and the political branches have an obligation to fill constitutional gaps and uphold rights beyond those that the Court will enforce. Others have noted Congress's potential (essential) future role in remedying social and economic inequalities through legislation. One anecdote from my time working for the Freedom of Choice Act (late 80's, early 90's) pre-Casey, when the Court seemed poised to overrule Roe or at least allow greater restrictions on abortion than Casey did: even Senators who were the most constitutionally sophisticated and also committed to preserving reproductive rights strongly doubted their authority to act to protect choice beyond what the Court would enforce (and this was before the Rehnquist Court's limits on commerce and section 5 power--how much harder in the future, as the Court diminishes judicial protection).

With regard to presidential power, Bill Marshall is right that we need a progressive vision of presidential power (and that need is growing, along with presidential power). And it must include a demand that the President fulfill his obligation to fully protect rights and respect the other branches, and that his lawyers advise him based on their best view of what he Constitution requires, not just what the courts will require of the President. Along these lines, several of us who worked at the Office of Legal Counsel under President Clinton are drafting principles that we believe should guide OLC's work. (We are doing this as part of an ACS issue group on presidential power, the first issue group under the new ACS "Constitution in the 21st Century" project.) The recent Bush OLC memo on interrogation/torture is one clear example of advice regarding executive obligations premised inappropriately on what the courts would require. But this mistaken perspective also infects other executive branch work; another example: a Bush Dept. of Justice report on the terribly disparate rates of incarceration for drug offenses for African Americans v. whites (inexplicable by rates of drug use)--and which of course translate also into disenfranchisement and no student loans--proclaimed the enormous disparities raised no constitutional issues of equal protection, because no judicial challenge had succeeded. We need to challenge and change that kind of thinking.

I do think it important, though, given how court-centered our constitutional culture is and how successful conservatives continue to be with charges against liberals of judicial activism, that we take care to speak with great clarity when we are describing constitutional rights and values that are not judicially enforceable. (And we should spend considerable time as well on those rights that are judicially enforceable.)

Finally, my advocacy of increased nonjudicial constitutionalism does not bring with it any desire to abandon working through the courts (to the extent increasingly hostile courts are available). Such an approach seems to me clearly wrong, and (even if it were not) also clearly unattainable, given the progressive advocacy community and the realities of constitutional litigation. To the contrary, regarding that controversy among progessives, I would urge we focus on how best to promote strong roles for all three branches, particularly with regard to protecting individual liberty and promoting equality. The one-way ratchet section 5 theory was a particular target for the Reagan-Meese Justice Department, as part of its advocacy of diminished section 5 authority. We need as part of our progressive vision to continue to develop a strong, intellectually sound and publicly persuasive alternative version that calls for continued judicial protection even as we call upon Congress and the President to do more. That seems to me the constitutionally appropriate course, as well as the most effective course--the political branches alone simply will not adequately protect progressive constitutional values, for all of the familiar reasons.

-- Dawn Johnsen