In a previous post, I started exploring the notion, discussed by Mark Tushnet and David Strauss, that Democrats have no constitutional vision. At least, not in the same way that the social conservative “movement” has a constitutional vision. My feeling is that the Democrats do not currently have a consistent vision for interpretation of constitutional power and structure, and that Tushnet is correct in supposing that the party has been “opportunistic” about pursuing its agenda.
All of which raises the question: should we care? Does it matter that we don’t have a consistent constitutional vision? (After all, it’s pretty likely that Republicans are less consistent in their approach to constitutional interpretation and power than they’d like to admit, as Tushnet promised to explain in a future post).
Perhaps the best place to start is to ask, what purposes would a Democratic constitutional vision serve?
Increase citizen involvement in the nature of government
Constitutionality and constitutional vision is increasingly identified with the Supreme Court, but historically this hasn’t necessarily been the case. Constitutional “politics” has often been a matter for popular debate, and to the extent that Democrats can revive such discussion instead of always focusing on candidates and single issues, our movement to revitalize and restore social justice within the market economy could be strengthened.
The “narrowing” of constitutional politics to an internal dialogue within the Supreme Court is a lamentable phenomenon, since the Court really does have limited ability to drive a constitutional vision (despite the public diatribes against “activist” judges by social conservatives). The necessary incrementalism of the Court makes it a poor place to have a public debate over what government “should be”; the Court’s task is far more specific and narrow: ensuring consistency of implementation of a consensus vision of government.
There is also a growing school of thought, exemplified by Jack Balkin’s recent article in the Virginia Law Review, that the Court tends over time to reflect — not guide — the views of national political majorities, sometimes at the expense of regional or topical majorities. Balkin’s conclusion is that, even in cases such as Brown, the Court is following national opinion formed by political mobilization. In far fewer cases (and the Rehnquist Court’s recent federalism decision could be examples) does the Court drive constitutional vision in the absence of national consensus or majority.
Thus, legislators, the Executive branch, and citizens themselves are the appropriate place for normative, forward-looking constitutional discussions. None are really involved today in the politics of constitutional vision, though to the extent that constitutional agendas are discussed today, it’s largely a conservative phenomenon (e.g., Robert Bork). Democrats have largely departed the field in recent years.
Reaffirm the proper use of governmental power
More than anything, the Constitution is a set of rules for the relationship of the citizenry to its government. This relationship is defined not just by the “rights” sections and amendments, but through the structure and limits on power itself. The ability of government to regulate or prohibit private behavior depends upon the enumerated powers of each branch, the retained rights of individuals, but also in legitimacy of the method by which power is exercised. Separation of powers is the primary mechanism by which the use of power can be “legitimated,” since power divided and used in enumerated ways will often be given the presumption of legitmacy; whereas power concentrated has often been used in arbitrary ways and thus requires strict scrutiny, if not outright prohibition.
The proper scope of governmental power, and in particular Executive authority, is an increasingly important issue. Youngstown and the “Enemy Combatant” cases will likely be followed by many others, as constitutional limits on power adjust to our society’s take on privacy, new technologies, and new threats.
And the Democrats can be leaders in articulating “proper” uses for government power. By this, I don’t necessarily mean either contraction or expansion of power, but rather a thoroughgoing review of the appropriateness of government action in various realms of national life. A deliberative review would itself legitimate the modern conception of the strong Executive in ways that current debates simply cannot.
At the same time, Democrats who decry the “long arm” of Executive overreach must take responsibility. Not for current Administration actions, but because Democrats largely originated the modern Presidency during the New Deal and elaborated it throughout the early 1950’s and again in the 1960’s. Richard Nixon, who is often castigated for the “Imperial Presidency,” did not originate modern Executive power so much as he refined the tradition inherited from FDR and LBJ. Strong power, in hands we trust, can be a force for great good. But it can be the source of great damage to our national life in the hands of those with narrow and self-serving agendas. And thus as Democrats we owe it to our country to reform prevailing views on the extent of Executive power, and restore the balance between branches that serves as one of the few “brakes” on the accumulation and misuse of power under our constitutional system. After all, Democrats have only held the White House for 8 out of the last 24 years.
Increase the legitimacy of progressive social justice
I mention legitimacy because the conservative legal consensus holds that the New Deal economic agenda was unconstitutional at the time of its proposal, and that only by a “constitutional revolution” or in Ackerman’s terminology, a “switch in time,” have we as a nation reconciled New Deal social justice with constitutional limits on power. The majority of legal scholars do regard the New Deal as a major shift in constitutional law, with a few like Cass Sunstein fully defending the legitimacy of the shift (1).
Thus, it would seem that a Democratic constitutional vision should seek to consolidate the legitimacy of Congressional efforts at social justice, going beyond the “Footnote Four” approach of rationality review and strict scrutiny to perhaps consider appropriate constitutional amendments to Congress’ enumerated powers.
This may seem to be secondary in importance to passing a progressive agenda into law, but the last twenty years ought to suggest otherwise: without explicitly repealing New Deal-style measures, Congressional conservatives in concert with the Rehnquist Court and a succession of conservative Presidents have managed to place sharp limits on both the social safety net and individual civil liberties. Driving a progressive agenda on the basis of normal lawmaking alone will always leave our successes open to the modification, reinterpretation, or even repeal of conservative successors. Only by engaging in constitutional politics along with normal lawmaking can we create more permanent frameworks for social justice within which normal lawmaking can make sustained legislative inroads.
To summarize, I believe there are plenty of good reasons why Democrats need to expand their agenda beyond individual economic and social issues and articulate a clear vision for progressive constitutional government. This much seems abundantly clear (at least to me). What seems less clear is what the shape of that solution will be. My next post on the topic will start looking at the issues involved in defining a progressive constitutional agenda.
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NEXT: Issues involved in defining a Democratic constitutional agenda
Notes:
(1) See, for example, Sunstein’s The Partial Constitution, or his recent Second Bill of Rights.
