American Identity ─ Reading #4


The Constitution in 2020  (2009)

Balkin, J. M. and R. B. Siegel (eds)


[1] THE ESSAYS COLLECTED in this book are the result of a conversation that began in 2005, when a group of constitutional scholars met at Yale Law School to discuss what the law of the U.S. Constitution should look like in the year 2020. Why 2020? To clarify our constitutional vision, we chose a time close enough that it is within practical reach, yet remote enough that we could imagine ourselves free to interpret the Constitution differently than the Supreme Court now does.


[2] Since the mid-1970s, conservative social and political movements have dominated American politics. They have tried to re-create the Constitution in their own image. Conservative presidents have appointed the overwhelming majority of federal judges, stocking the bench with movement jurists who will adopt positions favored by conservatives on key questions of constitutional law.


[3] Through these appointments and in electoral politics, conservatives have sought to reinterpret the great achievements of twentieth-century constitutionalism, blunting some, rolling back others, and twisting still others to promote their favored policies. At this moment, at the beginning of the twenty-first century, it is crucial for us to rethink our commitments and ask what the Constitution means for us today.


[4] This book contests the conservative belief that we should cleanse constitutional law of contemporary understandings and restore the Constitution to an imagined past, a time when we obeyed the founders. We think this goal is inadequate; it simply disguises the values of a contemporary temporary political movement as the framers' intentions. Intellectual honesty and constitutional fidelity demand more. Instead of pretending that we can return the Constitution to an imagined past, we must assume responsibility for integrating past and present and redeem the promises of that great document in our own time.


[5] What is the difference between the conservative movement's position and our own? We believe that our obligation to the Constitution involves more than blind deference to the past. Living in faith with the past requires judgment and synthesis, in order to integrate past understandings with present conditions and with the best traditions of our people. This is a responsibility we are proud to acknowledge. The conservative narrative that presents constitutional restoration as a dogmatic obedience to the founders' expectations disguises normative judgment and denies accountability. It would infantilize the living and deny their ethical responsibility for vindicating the Constitution's commitments.


[6] When we accept responsibility for vindicating the Constitution's commitments, sometimes we must work to restore past understandings, and sometimes we must try to redeem constitutional guarantees that have not yet been met. We think that the past several decades of conservative judging have often departed from the best understandings of the Constitution, as the contributors to this book explain in detail. But the goal of constitutional interpretation is not only restorative—  it is also redemptive. Our Constitution is not only a bond with the past; it is a bond with the future, expressing commitments that the American people have yet fully to achieve.


[7] The people of the United States, through their Constitution, are engaged in a long-term project, one that spans many generations. It is the project of creating a "more perfect union," striving, as the Constitution's Preamble tells us, to "establish justice, insure domestic tranquility, provide vide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." This task was not completed in 1789, when the document was ratified; it is not completed today. It belongs to each generation to do its part.


[8] The basic premise of redemptive constitutionalism is that our Constitution is always a work in progress. Redemptive constitutionalism ism is a great American tradition, responsible for many features of our constitutional system that Americans now take for granted: the protection of basic rights and liberties, including the right of free speech and free exercise of religion; federal power to regulate the economy and provide vide basic social services like Social Security and Medicare; and guarantees tees of equality for all Americans. When many were complacent about Jim Crow or sex discrimination, or actively sought to defend them, there were Americans who argued that the Constitution guaranteed equal citizenship. Had it not been for their vision, and their determination to vindicate the Constitution's fundamental commitments, our nation would be far less just, less equal, and less free today.


[9] To say that we have imperfectly realized the Constitution's commitments is not to deny the nation's achievements. To the contrary: this understanding of our Constitution is the source of the nation's greatness. Each generation builds on the best of the past and strives, as the Preamble instructs us, to create a better future for our posterity. For proof of this idea, we need only look to history: The Constitution once protected slavery. It does no longer. It once sanctioned Jim Crow. It does no longer. The Constitution once permitted a wide variety of forms of political and artistic censorship; it once treated women as men's servants, and gays and lesbians as criminals. It does no longer. All these changes came about because people believed in their Constitution and in the importance of continually examining our practices in the light of our principles.


[10] Because each generation must honor the Constitution's commitments in its own time, the Constitution as it is applied in practice will inevitably change, responding to altered circumstances and conditions. This is not a defect; it is a feature of our constitutional tradition. It is how each generation makes the Constitution its own.


[11] Americans honor their constitutional heritage, but they do not worship ship it uncritically. The Constitution of today draws on a rich history of past accomplishments, starting with the Declaration, the Revolution, the founding, the second founding of Reconstruction, the New Deal, and the civil rights revolution. In these great epochs, those who forged the constitutional understandings that we today take as foundational did not treat the past as sacrosanct— it was their opponents who did.


[12] There have been long periods in which unjust policies and defective interpretations of the Constitution reigned supreme. We often hear people talk as if the greatness of our nation and the justice of our Constitution were fixed and guaranteed at the founding; if we only would bind ourselves to the wisdom of the framers, all would be well. But those who fetishize the founders do not keep faith with them; those who framed the Constitution forged a framework for nation building, a framework for developing a political community committed to justice. As we strive to realize this commitment, we are more faithful to the constitutional project than those who supported slavery, segregation, sex discrimination, and religious intolerance in the name of the fathers. In every generation, people have defended injustice in the name of an imagined past. And in every generation, people have countered this complacency by invoking a different conception of our origins and traditions, remembering our history as a people in quest of justice.


[13] Constitutional argument appears backward-looking, to consist in little more than appeals to text, history, and precedent. But this obscures its true genius. Americans appeal to history to make claims on one another about our deepest commitments as a nation. We appeal to history as we debate with one another how to to face the future.


[14] The Constitution, Justice Oliver Wendell Holmes once said, is made for people of fundamentally different views. We live in a world of heterogeneous beliefs and sustained conflicts about values. And we live in a democracy: a system of government in which we must live together and rule together despite deep normative disagreements. We turn to the past not because the past contains within it all of the answers to our questions, but because it is the repository of our common struggles gles and common commitments; it offers us invaluable resources as we debate the most important questions of political life, which cannot fully and finally be settled. In this process, we draw on the text, history, and traditions of the U.S. Constitution to make the founders' Constitution our own. Over and over again, we have looked to our collective past to imagine our collective future.


[15] These understandings suggest how we should think about the role of courts in a democratic society. In the closing decades of the twentieth century, conservatives argued that we should restrict and conform constitutional law to the expectations of the framers. They claimed that decisions that deviated from the framers' understandings lawlessly imposed personal or political predilections. Fidelity to the past was a source of truth and safety-the only means of restraining a dangerous and unelected judiciary.


[16] Conservatives urged the nation to be deeply suspicious of courts. They described the federal judiciary as a force for evil in America and as a source of decay in our culture and institutions. They continued to do so even as they appointed most of the judges in the federal system. They have denounced the judiciary as an elite institution conspiring against ordinary Americans, even though conservative judges appointed by conservative politicians have generally followed the views of conservative elites. They have summed up their judicial philosophy in a series of slogans: conservatives are for "strict construction" and "interpreting law rather than making it"; they are against "legislating from the bench" and "judicial activism." Each of these claims has proven to be intellectually vacuous, in practice meaning little more than that judges should decide cases in ways that conservatives like.


[17] At the same time, conservatives have offered a different portrait of the judiciary: Judges who reach decisions they like are apolitical and dispassionate purveyors of a timeless law of the fathers, with no political will and exercising a minimum of personal judgment. Chief Justice Roberts well captured this idea when he asserted that he was nothing more than an umpire, blandly calling balls and strikes but taking no position on the great issues of the day; Justice Scalia and Justice Thomas portray themselves as if they were simply obedient servants of the Constitution's original meaning when in fact they speak to a mobilized conservative movement through their decisions.


[18] The conservative vision of the judiciary has been schizophrenic. In cases where decisions deviate from the substantive results conservatives prefer, conservatives denounce judges as arrogant villains. In cases that announce decisions conservatives favor, conservatives depict judges as impersonal arbiters of a law of the distant past in which they exercise no judgment and no responsibility.


[19] This view makes little sense, and it does not illuminate how the judiciary actually interacts with the national political process. Judges exercise independent judgment, but they still reason as members of a political community. Their decisions draw on contemporary values and respond to complex currents in public opinion. That is why popular mobilizations have played so central a role in our Constitution's history. The constitutional revolution of the New Deal followed a groundswell of popular sentiment for change, to which an older Court had been unresponsive. The Warren Court worked hand in hand with the representative branches of the national government, promoting civil rights measures and bringing local majorities in line with national values.


[20] Our constitutional history demonstrates that an engaged citizenry is essential to the health of a constitutional order. If Americans seek to influence the development of constitutional doctrine in the twenty-first century, they must do as past generations have done before: They must win the battle of ideas and convince their fellow citizens that their values and their vision are most true to America's great constitutional traditions. If they can do this, the work of the courts will eventually follow.


[21] In a democratic society, courts best perform their institutional role as partners in a larger dialogue: They respond to popular visions of the Constitution's values and help to translate these values into law. Constitutional ideas usually emerge from the bottom, not the top. Constitutional values come from successful political mobilizations, from political and cultural struggles over long periods of time. Courts do not lead these mobilizations, though they can give them new and distinctive articulation.


[22] Just as judicial doctrines often follow political mobilizations, courts are not always the most important players in developing and enforcing constitutional norms. In many areas of social life, the minimum protections of equal citizenship cannot be secured by courts alone. Decisions made by legislatures and executive officials about our rights are just as important, if not more important, than the development of rights by the judiciary. Many of the chapters in this book address this central truth, as they emphasize the centrality of legislative and popular constitutionalism. Because ours is a democratic Constitution, the responsibility for articulating constitutional values often falls to the institutions of democracy and civil society.


[23] The tradition of redemptive constitutionalism to which this book contributes has been the source of some of our nation's greatest achievements. It produced the New Deal and the civil rights revolution, two features so central to our self-understanding that both liberals and conservatives accept them as part of our constitutional heritage, even when they disagree about what they mean. At one point in history, conservatives doubted the legitimacy of Brown v. Board of Education; now, they proclaim that they are its most ardent defenders. That is proof enough of the centrality of redemptive constitutionalism in our tradition.


[24] But the key to the future is not a return to the battles of the past. Seeing ourselves merely as defenders of the achievements of the New Deal and civil rights era bespeaks a narrative of loss and decline. The country has changed, and its needs are different. Americans today need not seek a restoration of the glory days of the Warren Court. Clinging to a simple story of restoration would be particularly ironic, for the work of the Warren Court was itself redemptive. Our successes will come from new mobilizations that emphasize a new constitutional vision that better articulates enduring constitutional values. Describing what might be part of that new vision is the task of this book.


[25] The goal of these chapters is to start a conversation, not to end it. We do not offer a finished blueprint for the future, but the considered views of two dozen leading law professors on the constitutional issues they regard as most important. The contributors discuss a wide range of topics, including not only the traditional concerns of civil liberties and religious freedom, but also issues of economic and social justice and America's place in a changing world . . .


[26] Consider the most important achievements of twentieth-century constitutionalism: a federal government with the power to regulate the economy, protect the environment, protect the rights of consumers and workers, and prohibit discrimination in employment; universal suffrage; a robust conception of freedom of speech; a legal process that is procedurally fair; guarantees of reproductive freedom and racial, gender, and religious equality. Each of these aims was once regarded as radical and impractical. Yet they are now foundational: rights and responsibilities of government that Americans have come to expect.