Friday, December 03, 2004

Constitutional Politics or Constitutional Law? -- post by Chris Schroeder

Some people, myself included, are coming to this event having already participated in a number of discussions about the current state of progressive Constitutional Law. These have not been entirely upbeat, celebratory affairs. At some point, the success of conservative Constitutional law is almost always drawn into the discussion. Conservativism in Constitutional law seems to have seized the intellectual momentum, forcing progressive doctrine onto the defensive and in the process exposing underlying weaknesses in those defenses. Sometimes a stylized story gets told about how this all came about. It probably does not need repeating in this company, but I will do so because Jeff Rosen has recently done it for me in his piece in the Sunday NYT a couple of weeks ago:

Conservatives set out to develop a constitutional methodology that would ensure that the liberal decisions of the Burger and Warren courts were overturned. In 1985, Attorney General Edwin Meese III gave a famous speech, declaring, ''We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.''

After Mr. Meese's speech, ''originalism'' rather than ''strict constructionism'' became the judicial buzzword of the 1980's. Still, the effort by President Reagan and the first President Bush to appoint ''originalist'' judges had mixed results. After the Senate rejected President Reagan's nomination of Robert Bork in 1987, only two of the five Republican appointees -- Antonin Scalia and Clarence Thomas -- called themselves constitutional ''originalists.'' Three justices -- Sandra Day O'Connor, Anthony Kennedy and David Souter -- did not. Partly as a result, the Rehnquist court once again sided with liberals in the culture wars.

In the 1990's, during the Clinton era, conservatives redefined strict constructionism once again. They focused on areas like deregulation, choosing cases they could realistically win in the courts. ''There was less political resistance to the court's federalism decisions than abortion and school prayer, because they're less on the radar screen,'' Professor Yoo said.

In 1995, Douglas Ginsburg, ... wrote an article calling for the resurrection of what he called ''the Constitution in exile,'' by which he meant strict constitutional limitations on federal power that were abandoned after the New Deal. In that article, Mr. Ginsburg wrote that he never expected these forgotten doctrines to be resurrected in his lifetime.

But his article coincided with the beginning of the so-called federalism revolution on the Rehnquist court. In 1995, for the first time since the New Deal, the court said there were limits on Congress's power to regulate interstate commerce. And since then, the court has struck down 33 federal laws. During its first 70 years of existence, the court invalidated only two.

Although conservatives grow stronger every year on the federal bench, progressives still predominate on law school faculty, and we still write prolifically on constitutional topics, but much of the most widely commented upon progressive writing is either long on exposing deficiencies in conservative doctrine and shorter on comprehensive articulations of progressive doctrine, or else is urging us to adopt a less court-centered view of constitutionalism. These are admirable projects; I am for exposing the contradictions and weaknesses in conservative doctrine where appropriate and I think progressive politics and progressive civil society are in the end much more important than progressive law can ever hope to be in creating the conditions in which a progressive society might flower.

I am increasingly curious, however, as to whether or not one additional possible response to the conservative success story – a response that has come up repeatedly in those other discussions to which I referred – is one that any critical mass of progressive scholars wants to pursue. That response would steal a page from the conservative play book by producing a cogent statement of progressive positions. There are a variety of forms such an effort might take. One would approximate the remarkable documents that emerged at government expense from the Meese DOJ, documents that Dawn Johnsen has so wonderfully excavated, and which became a sub rosa screening device for DOJ lawyers in their judge picking work under Presidents Reagan, Bush (41) and I assume Bush (43). It would not have to take that form, however. The essential ingredients to me would be (a) as clear a statement of constitutional interpretive principles as feasible; (b) a set of statements of progressive positions on significant disputes within constitutional doctrine. Perhaps it would also contain (c) a section articulating the relationship between these elements and the basic principles of a progressive society.

I interpret the larger progressive literature as well as the blog entries leading up to the weekend conference as raising a significant number of reservations about such an enterprise. They include:
  • constitutionalism and progressivism are incompatible;

  • if such a project must be grounded in a constitutional methodology, it will fail, for there is no single methodology that claims sufficient progressive adherents to serve the purpose;

  • even assuming a consistent constitutional methodology could be developed, it would not be one that endorses all of the important progressive legal positions across the breadth of issues of concern to progressives, so that pursuing methodological questions will be divisive and counterproductive;

  • there is in fact no hope of articulating a methodology that is simultaneously defensible, desirable and constraining on judges – conservatives don’t do it, they only claim to do so, progressives could not do it, they don’t even claim to do so – because method ultimately get displaced by outcomes when the outcomes are at odds and important;

  • in particular, the conservative claim of methodological consistency is hypocritical – the claim to be in possession of some apolitical method such that judges who use it will be applying the Constitution while anyone else will be legislating from the bench serves a useful political purpose but the claim cannot be vindicated by observing the practice of conservative justices; progressives should not be interested in mirroring that hypocrisy;

  • whatever the possibilities for a set of progressive constitutional doctrines in principle, our Constitution cannot plausibly be construed to contain sufficiently progressive doctrines to help the cause (in many areas, the best we can hope for is to get the courts out of the way of progressive legislation);

  • under any plausible scenario of judge made Constitutional doctrine, progressivism has no prospect of succeeding except through legislation, so we need to devote our energies there; the doctrinal project seems important, but my own research agenda finds other questions more interesting/important, so don’t distract me;

  • you miss the point of Jeff Rosen’s story if you think the doctrinal development was its center; the key to conservative success has come from controlling the Presidency between 1968 and now for all but the Carter and Clinton years;

  • Memo from CLS: the doctrinal project is incoherent; bricolage is all there can be.

  • I will not even attempt a rejoinder to this undoubtedly incomplete, in places even inconsistent, range of reservations, except to express the hope that at some point during the weekend we can see whether there exists the combination of sufficient belief in the utility of such a project and a felt sense of urgency about one to undertake it. I hope we will find that combination present, not in any way with an intended slight on the work being done on popular/populist constitutionalism, small “c’ constitutionalism, thin constitutionalism and other correctives to an excessively court-centered view of governance. At the same time, I don’t think one needs to embrace court-centrism, and certainly not court-imperialism, to believe that courts will remain important adjudicators of rights when we reach 2020. The social/legal culture will not change that rapidly, and the wrongs for which people currently appeal to the courts for redress will not disappear, while at the same time new ones will come into view. People will continue to use the courts as platforms of expression, as well. Courts can perform important functions at least by smoothing some of the more jagged edges off legislative and executive transgressions. It might just be that were we to put our minds to it, we could develop a doctrinal agenda that was at the same time sufficiently supportive of the larger progressive project to be worth pursuing, sufficiently respectful of disagreements under the progressive tent and sufficiently grounded in interpretive commitments we are prepared to make to be both feasible and of some value.

    But then, again, maybe not. Certainly people can roll up their shelves and go to work on court related projects – when I realize that the only gains of the Republicans in the House of Representatives last month were the result of the Texas gerrymander, I think of the increasingly pressing need to do better with the “law of democracy” – without embracing any larger progressive doctrinal project, and there may be opportunity costs that make the latter an actual drain on activities like the former. It is just one of the questions on which we might focus at some time during the upcoming event.

    -- Chris Schroeder