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Day August 28, 2004

A constitutional vision for Democrats, part 1

Do Democrats have a constitutional vision? Mark Tushnet took up the question last week while guest blogging on Balkinization, following David Strauss’ article on LegalAffairs. Strauss argues that Democrats do not have a constitutional vision, in the same way that Republicans (since the “Reagan Revolution”) have. Tushnet disagrees, labeling the Democrat’s vision “something like ‘equal dignity and respect.'”

While this is, I believe, a fair characterization of the Democratic agenda, I’m less convinced that Tushnet is correct to call this a “constitutional vision.” To me, the latter term refers to a more-or-less coherent set of interpretations of the powers and structures conferred by the Constitution. Separate from such a vision is the agenda which a given group is pushing, under the rubric of their notions of constitutionality. For example, the Bork-Scalia-Thomas vision of limited judicial supremacy, with controversial issues referred to legislative decision, is a key element of the Republican “constitutional vision.” Separate from this is the Republican agenda for which issues they desire legislative control versus judicial decision: social issues including marriage and abortion, for example. The separation of constitutional vision and agenda is important, and goes a long way to describing why Democrats can rejoice when Scalia deploys formalist, textualist arguments against unlimited executive power in Hamdi v. Padilla but decry his long-term campaign to strike down Roe v. Wade using the same interpretive methods. We’re responding to the agenda, not to his views on constitutional power.

In a similar way, Democrats have an agenda, which is captured by Tushnet’s label “equal dignity and respect.” One might expand this to include “improved social justice through limited redistributive efforts” and capture much of Democratic domestic policy since LBJ. But Democrats have spent little time developing a consistent approach to using and interpreting constitutional structures in support of this agenda. Tushnet is correct when he labels the Democratic approach “opportunist.” Democrats have been perfectly willing to use judicial decision, Federal executive and legislative power, and state/local government to advance their agenda.

As Tushnet acknowledges, there’s nothing wrong with opportunism — politicians work, after all, to advance their agenda, not to attain perfect consistency with a single method of interpreting the constitution. We, as a society, are arguably better off because Roosevelt attained New Deal victories however possible, instead of blindly pressing (and possibly losing) a national effort to gain Article Five amendments before advancing policy initiatives.

Thus, a number of questions come to mind. First and foremost is whether having a constitutional vision matters for the long-term success of the Democrat policy agenda. After all, one might say, opportunism worked for the New Deal, Civil Rights Act, and Medicare. But much else within the Democratic agenda has not gained traction. Thus, it’s worth asking if the opportunistic approach to constitutional power is inferior to an agenda backed by a solid constitutional vision. If the answer turns out to be “yes,” as I believe it shall, then we as Democrats need to ponder what type of constitutional vision we should back. The nature of such a vision will have much to say about the future of the left-liberal agenda in this country, and may even illuminate ways to build a larger consensus around the role and nature of government than currently exists.

In this way, examination of a Democratic constitutional vision can help answer to the question asked by many “liberals” today: does liberalism have a future, and if so, what?

Next: why should having a constitutional vision matter to Democrats?