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Day September 18, 2004

A constitutional vision for Democrats, Part 3

Following the thread from two previous posts, it’s worth looking at the possibility that Democrats still have such a vision, and what vision conservatives offer in return.  In his original post on Balkinization, Mark Tushnet stated — without much elaboration — that the Democratic constitutional vision was "something like equal dignity and respect."  There’s a sense in which this is correct.  It’s not hard to trace this vision back to FDR; the following is from the "Four Freedoms" speech of 1941:

Just as our national policy in internal affairs has been based upon a decent respect for the rights and the dignity of all of our fellow men within our gates, so our national policy in foreign affairs has been based on a decent respect for the rights and the dignity of all nations, large and small.

Originally, of course, Roosevelt was concerned to secure equal dignity through redress of economic privation, in the wake of the Depression.  Civil rights and racial equality were still issues for the future.  National opinion would begin to place racial and gender issues on the "equal dignity and respect" agenda starting in the 1950’s and continuing throughout the 1960’s, while retaining (in the Great Society programs of Johnson) the economic dignity legacy of the New Deal.  As Cass Sunstein documents in his new book, Roosevelt’s "Second Bill of Rights" came close to defacto recognition by the Court prior to the Nixon appointments in the early 1970’s. 

Since then, Democrats seem not to have lost the earlier vision but have instead have been playing defense.  Since 1970, Democrats have controlled the White House for only 12 out of 34 years.   Only two of the sitting Court were nominated by Democrats (although several Justices nominated by Republicans now form part of the Court’s "liberal/moderate" minority).  And majority control over Congress has rested with Republicans for the majority of the period since 1980.  The liberal "vision" has lost ground ever since; both real ground in the form of legislative cutback and judicial erosion, and steady decline in public opinion.  I need not belabor the point — excellent sources exist for analysis of the tactics by which Democrats and liberals came to be the minority force in national politics.

Far more interesting, I believe, is the opposing constitutional vision (or visions) which find so much support among conservatives:  limited or "small government" as the "original" and desired state of government.   If Democrats want to understand how to stop defending, and start building again, the weaknesses in the conservative constitutional argument are the place to start.