How liberals can reclaim the Constitution

Jack M. Balkin
July 11
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School.His latest book is 'Living Originalism' (Harvard University Press).

The U.S. Army Old Guard Fife and Drum Corps at “July 4th at the National Archives.” (Sarah L. Voisin/The Washington Post)

For years, conservatives have called for taking back the Constitution.

In one sense, that claim is deeply ironic: Conservatives have dominated the appointments to the federal courts for a generation, and over the years, they’ve fundamentally reshaped voting rights, church-state relations and campaign finance regulation (to name just a few areas). 

But conservative calls for restoring a lost Constitution also make sense. The Constitution is more than a legal document: It’s a shared symbol of the country and its ideals. Conservatives are engaged in a reform project — often quite radical in its implications. And every important movement for change in the United States has proclaimed that the Constitution is on its side.

You might wonder: where have liberals been all this time? Why aren’t they demanding to “take back the Constitution?” Well, they have been, just not as loudly. In fact, 25 years of hard work by liberal scholars, lawyers and thinkers is about to bear fruit.  We are on the verge of a renaissance of liberal constitutionalism, one that I predict will blossom fully in the next decade.

First, liberal scholars have challenged conservative dogmas about the American constitutional tradition, a tradition that extends from the Founding to today. The proudest moments of that tradition — including the expansion of voting rights and equality for blacks and women — are liberal and egalitarian. My colleague Akhil Amar’s 2005 biography of the Constitution tells a story of progress and inclusion, discomfiting conservative nay-sayers in every era.

Second, to better understand how the Constitution actually grows and develops, liberal scholars have turned away from the courts and judicial review — now the focus of conservative obsession — and toward the work of ordinary citizens and political movements. The heart of the American constitutional tradition lies in these mobilizations, which have changed the constitutional common sense of the nation and made us the country we are today.

Prominent conservative jurists, like Supreme Court Justice Antonin Scalia, like to assert that they alone are faithful to the framers’ vision and that their opponents are simply lawless. But liberal scholars have repeatedly shown such claims to be hollow, based on a stunted and partisan view of America’s past. Indeed, in some ways the radical conservative portrait of America promoted by today’s tea party movement is almost an inversion of the country’s actual history. It imagines a nation that never existed in order to attack the foundations of the one we actually have.

Important work is now emerging to correct these misunderstandings.

Harvard Professor Lawrence Lessig, for example, has pointed out that the framers wanted to create a republican form of government, in which government officials would be dependent on the people alone for their right to govern. Our current system of campaign finance has destroyed that link between officials and citizens, forcing politicians to dance to the tune of those with the largest purses. The Roberts Court recently blessed this perversion of the framers’ design in the McCutcheon decision — it identified politicians’ “constituents” as the people who give them money, as opposed to the people that politicians are actually elected to represent.

In their work on The Anti-Oligarchy Constitution, Texas law professors Joseph Fishkin and William Forbath have shown that there is a deep tradition of constitutional thought from the founding to the 20th century that is opposed to economic oligarchy and to government policies that entrench vast inequalities of wealth. 

Meanwhile, Doug Kendall’s valuable work at the Constitutional Accountability Center, although directed primarily at courts, has been devoted to reclaiming constitutional text, history and structure for liberals. And my 2011 book, “Living Originalism,” shows why the Constitution’s original meaning is fully compatible with a Constitution in which application changes over time. It demonstrates why the best version of a living Constitution is also the best version of originalism. And it explains why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety and the environment are fully consistent with the basic framework created by the people who adopted and amended our Constitution.

What all these projects have in common is that they reject the false dichotomy of respect for the founders versus a living Constitution. They don’t assume that just because conservatives talk a lot about the framers that liberals must do exactly the opposite. And all these projects believe in a liberal and inclusive constitutional tradition that connects the Americans of the past with the Americans of our own day.

If liberals want to reclaim the Constitution in politics as well as in law, they must abandon the shibboleth that all right-thinking liberals must oppose living constitutionalism to originalism. This is a false choice, and ironically, it frames the debate on terms set by movement conservatives in the 1980s.

It was conservatives, and not liberals, who insisted on drawing a clear distinction between originalism and the work of the Warren and early Burger courts. Liberals had been quite happy to draw on adoption history to explain how and why enduring constitutional commitments should be applied to present-day circumstances. As Frank Cross has pointed out in his article Originalism: The Forgotten Years, the trend of increasing citations to the founders in Supreme Court opinions begins with the Warren Court. And the great avatar of the living Constitution, President Franklin D. Roosevelt, explained and defended his constitutional commitments in terms of fidelity to the constitutional text and the founders’ design.

If you start by accepting that the difference between conservative and liberal views of the Constitution is that one attempts to be faithful to the text and to the founders’ vision and the other does not, well, that’s just not a very helpful way for liberals to talk, either to themselves, or to the general public. And of course, that’s precisely why modern movement conservatives sought to frame the choice in that way.

The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. Liberals should claim for themselves — as conservatives already have — not only the constitutional text but the entire constitutional tradition, including the ideals and hopes of the generations that fought to create a new nation and establish the Constitution.

The founders — including the Reconstruction framers who gave us the 13th, 14th and 15th amendments — created a framework on which later generations must build to realize the Constitution’s great promises of liberty and equality. It is our job, in our own day, to further that great work. That is the liberal vision of the Constitution, and it is both originalist and living constitutionalist.

Show Comments
Next Story
Stephanie Grace · July 11