This one was Bruce idea, as a kind of follow-up to our 2015 meeting on the Founders’ view of government powers and in expectation that Hillary Clinton would be elected president. Now, of course, President Trump will fill the Supreme Court seat that congressional Republicans stole by refusing to fill Justice Scalia’s vacant seat for a year. Funny, but I can’t find the passage in the Constitution that allows the Party of strict constructionists and originalism to do this.
At any rate, no shift away from the long, conservative arc of constitutional law is going to happen in the next decade. Quite the opposite. That list of possible SCOTUS appointees that Trump issued during the campaign came straight from the Heritage Foundation and the Federalist Society. An ultra-conservative constitutional restoration is on the launching pad, in the lower courts as well as SCOTUS.
Nevertheless, understanding progressive views (there are more than one) of constitutional interpretation is still relevant, for several reasons. First, presidents usually find a way to appoint federal judges that share their highest constitutional priorities. For example, the liberal Obama appointed judges that agreed with his expansive view of executive power in anti-terrorism matters. Donald Trump is an authoritarian figure unmatched in American history and he might try to stack the judiciary with cronies that place loyalty to him above ell else. If Trump does this and the GOP refuses to stand up to him, progressives and their living Constitutionalism will have to bear the full weight of opposition.
Second, being in the wilderness sharpens the mind. Over the next four years the Democrats must decide whether and how to revamp their message. A lot of people feel that the New Coke must include a version of constitutional interpretation that can compete with the simplistic but effective “original intent” and “obey the written Constitution” marketing slogan of the Right. Lastly, esoteric matters of law aside, the public is on progressives’ side on most major constitutional issues. They do not believe that Medicare, federal aid to education, and Social Security are unconstitutional. They don’t want Roe overturned or the last limits on corporate campaign contributions to be swept away.
Unfortunately, the progressive POV on constitutional law does not easily fit on a bumper sticker. The Left views the Constitution as a “living document,” one that laid down timeless principles but that still must be interpreted non-mechanically in order to apply it to the today’s real world. But, beyond that commonality, progressive experts differ on specific methods and priorities. There are competing camps with catchy names like “ordered liberty,” “progressive originalism,” “democratic constitutionalism,” and others.
I’m not qualified nor interested enough to explain these nuances. But, I do know a bit. I will open our meeting on Monday with the basic ideas behind progressive constitutional interpretation as I understand them. Then, we can talk.
- Originalism: Why do progressives consider it unworkable and even kind of fraudulent?
- Basic liberal stance: Why do progressives say the Founders intended the Constitution to be a “living document” that must be interpreted for modern times?
- Rules for deciding: Okay, but how? What rules/priorities do progressives think we should use for interpretation? Original meaning, precedent, societal consensus, modern values, outcomes? Can these add up to a coherent philosophy?
- Differences/Labels: What are the biggest disagreements among progressives on this stuff and how do they end up as “democratic constitutionalism, “ordered liberty,” “New Textualism,” etc.
- Future: How will progressive react to the coming conservative constitutional revolution? Will they find any common ground with (some) Republicans?
SUGGESTED BACKGROUND READING –
- Why constitutional theory should matter, including to progressives. Recommended.
What might have been and what will be –
- How a liberal SCOTUS would have changed America.
- Trump’s SCOTUS will be radical — if he gets a 2nd pick. Recommended
- Some conservatives are afraid, too.
Critique of Conservative Methods –
- It is wrong to think Constitution not meant to be flexible. Easy read, recommended.
- A measured critique of originalism and defense of a living constitution.
- A conservative rebuttal.
Progressive constitutional interpretation –
- The Founders intended a flexible, non-dogmatic Constitution. Easy read.
- A progressive Constitution. Harder, recommended.
- More: The “Framers’ Constitution” is progressive. It is a “Distributive Constitution.”
[Update: I should have linked to the New Textualism – the best of the 3 articles.]
NEXT WEEK: Are we living in the “Asian Century?”