Wednesday, April 06, 2005

Post by Seth RosenthalPost by Seth Rosenthal

Picking up on Jeff Berman's post from a few months back: Having entered the sometimes un-real world of nonprofit political advocacy a short two months ago, I have become interested in more than simply the crafting of a positive constitutional vision. More than anything, consistent with ACS's goals, I have become interested in the development of a vision that is readily articulated, captures the public imagination and infuses public discourse. If we believe that that such a vision has not yet been developed, our task is two-fold: developing the vision and learning how to articulate it. If, on the other hand, the vision we embrace is already largely developed, the work ahead seems to be more about politics, more about passionately and convincingly delivering the right message, than anything else.

Posts from people like Professor Sunstein and Minow suggest to me that perhaps we aren't thinking about something entirely new. Rather, as far as I can discern, we, or at least some of us, are talking about re-asserting a constitutional vision that once held sway and is still hanging on -- a vision, based on Katzenbach v. Morgan and the like, that provides broad legislative maneuvering room for progressive government and, only where necessary, limits government so as to prevent undue restraints on individual liberty. If this is what we're talking about, must we then simply learn how to advance a "strong narrative ... expressing why constitutional fidelity in no way requires the abandonment of the New Deal," as Jonathan Simon says?

Who knows. Certainly not me. But if this is the case, I remain optimistic. Recent polling shows that significant majorities do not prefer courts that would strike down worker, consumer, environmental and civil rights protections and roll back established individual rights. In other words, significant majorities, broadly speaking, do not favor much of what is happening -- largely beneath the radar screen -- in our federal courts today, or at least much of what legal conservatives want to happen. Is it so difficult to articulate a positive constitutional vision that reflects the worries of these majorities, a vision that exposes the Constitution in exile as bad history and bad law, as Professor Sunstein and others have tried to do in popular, if higher-brow, publications?

In the current political climate, we are, of course, always saying what we're against. But because there is much in our opposition that we can and should quickly turn into a positive constitutional vision, playing defense is not necessarily a recipe for inefficacy. That's because offense -- advancing the positive vision -- can go hand in hand with playing defense. With apologies for being simplistic and not wholly accurate, recent history, at least superficially, proves as much. Progressives railed against what they didn't like about the Supreme Court's Lochner era and early New Deal decisions but then turned their disapproval into successfully advancing the view that the Constitution provides Congress a wide berth to enact social reform legislation. Legal conservatives similarly condemned what they didn't like about the Roosevelt era and Warren Courts but easily -- and successfully -- transformed their condemnation into a countervailing positive view that restricts Congress' maneuvering room and eschews recognition of non-enumerated individual rights. It seems we're in a similar place now. When, for instance, we say that we are against current efforts to rewrite Commerce Clause, 14th Amendment and Spending Clause jurisprudence to undermine the constitutional basis for progressive government, aren't we necessarily expressing a positive constitutional vision? And isn't it a vision that can be readily articulated and even media-worthy, despite the media's current fixation on "values" issues like abortion and public square religion?

From the upcoming weekend, a neophyte like me is hoping to take away concrete ideas about a constitutional vision, whether new or revived, that can be easily worked into a much wider, much more public discussion. The opportunity for such a discussion may occur as early as the next Supreme Court vacancy.

-- Seth Rosenthal