Restoring the Progressive Vision of the Constitution

Neil Kinkopf*

It is not that long since there was a vision of the Constitution that, in its broad outlines, could aptly have been called the progressive vision. Progressives read the Constitution as directly guaranteeing the basic components of equality and justice. Progressives enjoyed great success in realizing that vision insofar as it involved negative liberty interests. This, however, was a relatively small component of the progressive constitutional vision. The attempt to achieve recognition of the greater part of the progressive vision, which sees the Constitution as guaranteeing positive entitlements, has failed. This has left progressives bereft of an overarching vision and clinging to now-untethered victories we have won or might like to win.

There is no reason to believe that we will ever succeed in establishing the Constitution as a source of self-executing entitlements to goods such as education, health care, housing, or subsistence income. There is, however, reason to hope that the progressive vision of what the Constitution promises can be secured through legislation that executes these constitutional promises. This leads me to two claims: (1) we should understand the Constitution in a way that facilitates achieving our constitutional vision through political means and (2) we should understand constitutionalism to encompass more than just the document under glass in the National Archives. Legislation that effectuates the broad guarantees that progressives understand the Constitution to embrace is also fundamentally constitutive and entitled to special regard.

I

I do not mean to explore in this brief essay all the ramifications of the first claim. Rather, I want to explore the ramifications for one important area: separation of powers. In this area, debate focuses on whether to understand the constitutional division of power functionally or formally. The functional approach emphasizes that effective and workable government requires innovations and the blending of power and that such blending does not necessarily threaten to undermine liberty by upsetting the balance of power between the branches of government.1 The formal approach holds no concern for the demands of effective and workable government and prefers a rigid adherence to bright-line separation of the branches even where there is no demonstrable threat to the balance of power.2

The formalist view is closely linked with those who accept Ronald Reagan’s famous aphorism: “Government is not the solution to our problems. Government is the problem.” It is not surprising, from this perspective, that Justice Scalia has espoused a rigid formalistic view of separation of powers, for such a view is consistent with his aversion to progressive government regulation. (Of course, principle or consistency did not prevent him from silently concurring in Justice Stevens’s functionalist opinion in Clinton v. Jones.3) A legion of conservative jurists and academics has taken up this view as well. The Bush Administration has pursued this approach under the aegis of the “unitary executive” theory and has promoted its exponents to high office. The common trait of President Bush’s three nominees (Alito, Miers, and Roberts) to the Supreme Court is their predictable allegiance to this theory.

In fact, this might be seen as a component of a larger strategy on the right: to make government look irresponsible, or even silly, and thus to render it an implausible vehicle for solving social problems. For example, David Stockman, the Reagan Administration’s Director of the Office of Management and Budget, pursued a budget policy of historic deficits (created by profligate defense spending and tax cuts) in order to place the federal treasury off limits to new federal programs and to squeeze existing programs. During the Clinton administration, the Republican majority in Congress forced two government shutdowns on the (mistaken) belief that it would demonstrate how little the federal government means in our daily lives. The perpetual congressional investigations of the Clinton administration served double duty. They were plainly crafted with the immediate aim of partisan advantage by portraying the Clinton administration as corrupt. They also seem to have been well-designed to foster an enduring distrust of government without regard to party. Similarly, the impeachment and trial of President Clinton served these purposes. A government that is so fully consumed by such inconsequential matters as the President’s extramarital affairs must itself be trivial and insignificant. This also has some explanatory power with respect to the pervasive corruption in the Bush Administration. If government serves no real public good, why not use it for private gain?

The functionalist view is espoused by those, including but not limited to progressives, who look to government as an important tool for realizing our aspirations. As a competing aphorism to Reagan’s, we might take Federalist No. 51, “Justice is the end of government. It is the end of civil society.” Innovations in the structuring of governmental power have long supported the progressive agenda and have often been important items on that agenda. For example, adopting the civil service system and dramatically curtailing the patronage system in federal employment involved an incursion on the ability of the President to supervise and control the executive branch and eliminated the appointment and removal power with respect to the vast majority of the executive branch. Upholding this innovation in good government required a flexible understanding of the separation of powers.4

The administrative state, an indispensable development for the delivery of progressive entitlements, can be sustained only on a flexible understanding of the separation of powers. The initial judicial invalidation of the New Deal did not rely exclusively on a cramped understanding of the Commerce Clause and an unjustified view of substantive due process. It also relied on a formalistic approach to separation of powers.5

Finally, progressive responses to the abuses of the Nixon Administration require a functional understanding of separation of powers. The War Powers Act, which seeks to protect Congress’s authority in the realm of military engagements, cannot be sustained on a formal view of separation of powers. In addition, the Ethics in Government Act, including its independent counsel provisions, are valid only on a functionalist understanding of separation of powers. It may be that Ken Starr demonstrated just how that statute could be abused, but the Bush Administration offers frequent reminders of why it was needed in the first place.

It is possible that a functional approach to separation of powers would facilitate a legislative program that is hostile to progressive commitments. Nevertheless, realizing the progressive promise of the Constitution will require substantial federal legislation and programs. A formal approach to separation of powers would make such progressive programs difficult if not practically impossible.

II

The second claim looks upon legislation that effectuates the meaning of the Constitution as an integral component of constitutionalism. Considered against David Barron’s very useful dichotomy between substantive and anti-court constitutionalism, this claim is unifying.6 It is not anti-court in that it does not necessarily entail any view regarding the role of the court as constitutional interpreter, and yet it allows for the elaboration of constitutional meaning outside the judiciary. This claim is not novel (it can be found in much of the anti-court scholarship that David Barron mentions) and is not made exclusively by progressives.7

The immediate question that this claim raises is whether it sets forth a meaningful category. Is there legislation that is or is not an integral component of constitutionalism? After all, every piece of legislation can claim to promote the general welfare or justice somehow. Does this mean that all legislation effectuates the constitution and, therefore, is an exercise in constitutionalism. I do not claim to have a completely theorized response to this question and rather raise it as a point for further inquiry. That said, I do believe that a distinction may be drawn between legislation that is constitutive and that which is ordinary. It is easy to regard the Civil Rights Act as effectuating (albeit not fully) the constitutional promise of equality, but it would be too clever to characterize the decision to depress Boston’s central artery that way.

Even if the second claim is meaningful, another question arises: So what? No consequence obviously follows from regarding particular legislation as somehow constitutive. One reason that regarding foundational legislation as constitutive might matter is extra-legal. According a constitutional status to a particular act is apt to make it more difficult to repeal the act. Moreover, it may make reform that is not true to the central purposes of the act more difficult. This, admittedly, is speculative. Another approach that could be taken with respect to such legislation is the adoption of rules of procedure in Congress requiring a supermajority to approve any measure that would diminish the protections or entitlements of constitutive legislation. To avoid the content problem, the rule might name covered legislation, with examples including the Civil Rights Act, the Voting Rights Act, Social Security, Medicare, and Medicaid. Conservatives have already done this with House Rule XXI para. 5(b), which requires supermajority approval of a tax increase (there is no supermajority requirement for a tax cut).

Another practical consequence of such a distinction could be the adoption of special rules of statutory construction for constitutive legislation. Courts should interpret such legislation to facilitate the special role the legislation is designed to play. This would mean interpreting constitutive legislation to effectuate the constitutional vision that the legislation embodies. Here, I mean something like the position taken by Ronald Dworkin with respect to the proper way of interpreting the Civil Rights Act.8

Given the brevity of this essay, the foregoing is obviously quite sketchy. I offer it as a possible guide back to the overarching vision of constitutionalism that once animated progressives. That vision was a rich conception of equality and justice that did not rely simply on restraining the government from harming us. It looked to the government as a means by which we could realize our most important aspirations and vindicate our deepest principles. We should not easily turn away from that project.

* Neil Kinkopf is an Associate Professor at Georgia State University College of Law.
[1] Here one might think of cases like Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and Morrison v. Olson, 487 U.S. 654 (1988).
[2] Here one might think of cases like INS v. Chadha, 462 U.S. 919 (1983), or Bowsher v. Synar, 478 U.S. 714 (1986).
[3] 520 U.S. 681 (1997).
[4] Attorney General Amos Akerman wrote a classic, and unjustly neglected, opinion upholding the validity of the civil service. 13 Op. Att’y Gen. 516 (1871).
[5] See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
[6] David J. Barron, What’s Wrong With Conservative Constitutionalism? Two Styles of Progressive Constitutional Critique and the Choice They Present, 1 HARV. L. POL’Y REV. (Online) (2006), http://www.hlpronline.com/2006/07/barron_01.html.
[7] See, e.g., KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999); KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999).
[8] See RONALD M. DWORKIN, A MATTER OF PRINCIPLE 316 (1985).

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