Thursday, November 25, 2004

The Progressive Constitution: An Oxymoron? -- post by Robin West

In our conversations I hope we can find the space, time, and will to at least consider the possibility that the phrase "progressive constitutionalism" is an oxymoron, for three reasons. The first is that the constitution, by structure, design, text, intent, and implementation, as well as by virtue of both the jurisprudential and institutional imperatives of adjudication, elevates anti-utilitarian and anti-communitarian rights and liberties above the happiness of the community. Consequently, the happiness of the community is a quite low priority, constitutionally speaking. "Happiness" doesn't register. At best, the constitution does it no harm, typically it denigrates it, and too often -- again, by structure, design, text, intent, implementation, and adjudicative imperatives -- it is quite aggressively sacrificed. Sometimes the sacrifice is worthy, but that worthiness should not blind us to the cost. It is not only "equality" that bears the burden of individual liberties and the libertarian politics and values behind constitutional discourse; it is also -- and I think more importantly -- happiness. Happiness, individual or collective, has no constitutional value. That alone pits constitutionalism against virtually any sensible understanding of the point of progressive politics.

Second: who and what are the individuals whose liberties and rights deserve and garner this protection, for which a people's happiness is so readily jettisoned? The individual granted these anti-utilitarian protections, by constitutionalism, is not necessarily a biological person at all -- an animal, with passions, loves, animosities, some measure of empathy and pride and reason, with, perhaps, children, parents, relatives, and friends, someone who was born not long ago and who will soon die, someone irreducibly dependent upon others for much of that path and someone who will certainly suffer along the way. Rather, the person now central to constitutionalism, for which happiness is jettisoned, is as often as not a corporation. Corporations, we now accept, are persons too (but are they "people"? How come we never see the claim that corporations are "people"?) A corporation is a person who is not an animal, who has no empathy, no children, no parents, relatives or friends, who will not die, nor suffer disease with no capacity for happiness, but with an extraordinary capacity for profit-maximization. As the corporations-who-are-persons become central rather than just peripheral or marginal to constitutionalism, the corporation's profit becomes definitionally the liberty deserving and winning protection -- with the result being that the corporation's profit, in the guise of individual liberty, becomes the constitutional value that trumps the community's happiness. The result of this migration is a re-conceptualization of the person. A person, constitutionally, is actually not someone with empathy, children, etc., these turn out to be properties of some but not all persons, not essential at all to personhood. Rather, a person, since it has to include the biological kind that are born, suffer, love, and die, and also the corporate kind, is an entity that maximizes profit. That, after all, is the attribute that biological and corporate persons share. Constitutional protections of liberty (as well as tort definitions of due care) are re-defined accordingly.

Third, constitutionalism cannot be cosmopolitan. "Cosmopolitan constitutionalism" is oxymoronic, and progressivism requires cosmopolitanism. By cosmopolitanism, I mean an ethical stance that holds the dignity and worth of all people to be equal, regardless of nationality. "We," though, define who "we" are, not by reference to our shared humanity -- the only possible path toward ethical cosmopolitanism -- but rather, by reference to our constitutional mythology: the framing, the reconstruction amendments, lochner, anti-lochner and its aftermath, civil rights, reproductive freedom, sexual rights. Our constitutional past, along with the mythic gloss, defines us. Our past differentiates us from others. Our past constitutes us. Our constitution defines us. It cannot be a worldly constitution and still be a constitution. We take our past very seriously; it is what it means for us to be who we are.

Progressivism requires: a commitment to the happiness of people. An understanding that human life is about needs and interests and loves and passions, and not about servicing fetishized fictive entities -- that the goal of a progressive politics should be, to quote Erich Fromm's lovely mid-century book (and book title) "Man for Himself" and not man for something other. And it requires not just a resistance to imperialism, but a thorough-going anti-nationalism. The Constitution is the obstacle to progressive politics, it cannot be the handmaiden.

Progressive constitutional lawyers and thinkers have responses to all of this -- I've written plenty myself -- but none of it is all that satisfying. Thus: the constitution does not necessarily mean the adjudicated constitution, and once the distinction is seen clearly, other and more progressive interpretations are revealed that do not pit individual liberty against happiness in quite such a regressive and disastrous way. That corporations are persons is an unfortunate but fixable mistake, not central to the project of constitutionalism. Through some very mysterious and alchemical process of osmosis, transformation and borrowing, our constitutional project can be synthesized not only with cosmopolitan human rights but even with constitutions and constitutionalisms elsewhere, eventually yielding a constitution that not only is not inconsistent with but deeply resonates with cosmopolitan ethical orientations. Well -- maybe but maybe not. Maybe the problem really is the constitution, and the idea of the constitution, and not adjudication, in either its institutional or jurisprudential mode; maybe corporate personhood is now irretrievably embedded in constitutionalism, and has already done the lion's share of the work, although beneath the surface, of re-definition of the entire document and our relationship to it, and maybe constitutionalism is just meaningless when divorced from a commitment to our sense of national exceptionalism, a sense that is disastrous for world populations when magnified by religiousity and imperialist power. Maybe a part of the conversation about the constitution in 2020 should conceive of the constitution as an obstacle to progressive politics, rather than one which, with the right interpreters and fixes, is actually the key to the whole project and has been all along, just never quite appreciated as such.

The only progressive alternative to this, I think, is to make good on the various promises of popular constitutionalism. We might, along those lines, concretely consider one extraordinary success story of popular constitutionalism, and that is the militia movement's and their fellow travelers' success in enshrining in the constitution a second amendment individual right to bear arms, with virtually no help from any court whatsoever. When the most liberal senator, and the democratic presidential candidate, announces repeatedly his support for second amendment individual right to bear arms, when liberal commentators urge the democratic party to not go anywhere near gun control, and when it is impossible to even renew through politics the slight gun control laws we once had, it is clear that, without a pen being lifted by any judge, there does indeed exist a second amendment right to bear arms. Obviously, you don't need courts to create these things. Progressive popular constitutionalists could perhaps study that success story and use it as a model for how it is indeed possible to constitutionalize a right, without recourse to adjudication. There is surely nothing illogical or even anti-historical in the suggestion that progressives no less than libertarians could employ constitutional law, history, and myth, in such a way as to guide politics, and even do it in a progressive direction. I'm just not at all sure the project would be worth the legitimation costs, misdirection, and distractions it would entail.

The second concrete implication, I think, of the popular constitutional project concerns our institution -- law schools. We might re-consider the extraordinary resources we pour into the project of securing top judicial clerkships for our students. Embedded in this entrenched practice are powerful meanings about the constitution, about law, about politics, and about legislation, all of them, I think, dubious. Perhaps we could talk about the possibility of at least matching those resources, and those meanings, with a commitment to the project of securing for our top students "plum" positions as one or two-year Legislative Aides to progressive senators. Perhaps progressive constitutional arguments, molded in the cauldron of popular-legal discourse, could receive a hearing and a measure of implementation, through legislation -- meaning, legislators. Of course, such a change would require and signal not just a change in law school culture, but also a transformation of the political climate: a professionalization of the process on the Hill of finding and appointing aides, and a willingness to consider those aides as providing desired constitutional and legal guidance. And it would require schools and the students we produce to think of the law maker and not just the law finder as the proper audience of constitutional (and legal) deliberation. It would require a re-orientation of norms of meritocracy, on both sides: the legislator would hire the best, not the best connected; the school would regard the constitutionalized legislative process (and product) as the prize to keep one's eye on, rather than the adjudicative process (and product). It would not only reflect but might help produce a political world in which the constitution guides and not just restrains legislation, and in which constitutional values, consequently, might be pressed toward progressive, and state-activist, rather than judge-activist, ends.
-- Robin West