Monday, November 29, 2004

Two Thoughts About the Future: One Concerning Courts, The Other Geography -- post by David Barron

There seems to me to be some irony in a progressive constitutionalism that siezes on the political process as the new preferred engine of constitutionalism at the very moment when progressives seem to have lost control of that process at the federal level. So I do not think that a progressive constitutionalism amounts to much if it takes as its abiding goal a de-emphasis of courts (or even a rasing up of politics). The capital P progressives writing with Rooselevelt in mind at least had a Congress and an executive branch that held out some promise of taking up the plan. I also think that a key way in which the constitutional culture develops is through the articulation of constitutional norms by courts - and while I realize that this "fact" is a product of past court-centered practices, I do not believe that it is likely to change much in the next 20 years. So I think, following Peter R., a major focus must be on articulating a progressive constitutional voice that could be articulated by courts -- if even in dissents. Reflecting on my own law school education, it seems to me that one of the most signficant developments jurisprudentially has been the emergence of textualism and orginalism as respectable jurisprudential claims that attract students and intellectual energy in law schools and among the informed public. There have been substantial efforts to refute these modes of arguments by progressives and they have made some headway. But my sense is that the next 20 years - if dominated by conservative judges as seems entirely possible -- is likely to produce new jurisprudential modes of argument that will be designed to supplant textualism and originalism as the conservative philosophy. My guess is that at present those modes of argument will be cast as structural claims about the constitution's general preference for institutional autonomy over individual rights. The more sophisticiated conservative authors already seem to be pressing these types of arguments on behalf of outcomes as disparate as Dale, the new federalism, and the president's prerogatives in the war on terror. For a sampling, see recent pieces by Wilkinson. I expect these modes of argument to get a lot of play in the law schools and to be very attractive to students, and so I think a key task of progressives over the next 15 years will, as a defensive matter, be to debunk or lay claim to this mode of analaysis. Work by Bill Marshall shows the promise of doing just that and I think we ignore doing this kind of work at our peril.

If the court/politics distinciton is not the right framework for structuring our thinking about where we should be going, what is? My suggestion would be to focus on geography. The old progressives were very much aware that the constitution needed to be updated to account for an increasingly urbanized and nationalized population and that it needed to be made responsive to the kind of more urban and national society American was becoming. Reynolds v. Sims is but the capstone or exemplar of that effort. But much of the progressive constitutional legacy could be understood in this way, I think. Our condition is different and harder. It is one, I think, that is marked most directly by the rise of suburbia and now exurbia within a newly gloablizing order. How
should progressives want the constitution to be made to respond to that situation? We can't simply argue that we need to make the constitution more responsive to these trends. That's why our situation is harder than the one faced by the progressives of old. After all, neither globalization or suburbanization points in a progressive direciton in the way that the move from a rural to an urban society did. Still, one area surely concerns property rights in land and the constitution's toleration of the regulation thereof. Any effort to alter current decentering trends which by all accounts have negative effects on progressive politics will require a degree of land use regulation that it is not clear curreent views of due process or takings will permit and that conservatives wil make a real effort in the future to ensure are not permitted. We need to think of ways of showing how the conservative progressive vision precludes us as a nation from responding to the deleterious consequences of current spaital and demographic trends. Consistent with this approach would be a renewed emphasis on the state of current state legislatures, which by most accounts are really not suited to assume the kind of planning tasks that a progressive vision would require. Should not the renewed interest in federalism provide progressives with an opening to really challenge the way state legislatures and executive branches are now configured? Might we want to put some greater energy into thinking of state constitutional referenda and the like that would help push states along more progressive paths? And might we not also want to begin to emphasize the dangers of balkinzation and to think of creative ways of thinking about a decentralization that still binds the union. How, given the red/blue divide, can we remain a union? Saenz, in this respect, seems likely to be a font of important progressive constitutional jurisprudence, perhaps even more so than Wickard v. Filburn was a generation ago. Similar kinds of questions need to be directed at the globalizing trends. What is a progressive view of the role that international institutions should have in shaping lawmaking at home -- be it NAFTA tribuals or the WTO or international intellecutal property treaties? And what should be the role of international lawmaking on our own understanding of the constitution? These questions in and of themselves are not that novel, but I do think it would be helfpul for progressives to see themselves at present in a moment in which the spatial ordering of the society they inhabit is changing dramatically from the ordering that produced prior progressive constitutinal visions. Reflecting on that fact, I think, may be helpful in structuring our thinking about what kind of constitutionalism we should want to be making for the future. Or, I want to suggest, it would be more helpful for structuring our thinking than would the courts/politics framework.

-- David Barron