What’s Wrong With Conservative Constitutionalism? Two Styles of Progressive Constitutional Critique and the Choice They Present

David J. Barron*

A few years ago, I had occasion to attend a conference, organized by Professor Mark Tushnet, concerning the future direction of progressive constitutionalism. In advance of the Washington, D.C. meeting, participants received two articles written by other participants in order to stimulate thinking for the upcoming discussion. The first article was a short essay from FindLaw by Sanford Levinson,1 which expressed his reservations about signing the Constitution, in the event he were asked to do so, on the ground that key structural provisions of it, such as its grant of life tenure to federal judges and its allocation of two seats to each state in the Senate, were fatally anti-democratic. The second piece was a Virginia Law Review article by William Marshall, which critiqued a new form of conservative constitutional argument that Judge J. Harvie Wilkinson had termed “compassionate conservatism.”2 At the time, it seemed to me that these two submissions impliedly staked out quite distinct positions regarding the future direction of progressive constitutionalism, and thus, as I explained in my own submission, they should be read as presenting the group with a real choice.

Specifically, I argued that Levinson’s FindLaw piece implicitly argued that progressive constitutionalism should not focus on constitutional enforcement by courts. In that respect, it reflected the important and growing position within progressive constitutional thought that expresses great concern about the leading role of the judiciary in giving life to the Constitution. Such strong skepticism about the constitutional role of the courts was not a prominent aspect of progressive constitutional thought when I was a law student 15 years ago. Today, however, it clearly is. Prominent examples include portions of Larry Kramer’s Harvard Law Review Foreword, We The Court,3 and his subsequent book, The People Themselves,4 as well as Mark Tushnet’s Taking the Constitution Away from the Courts.5 Essential strains of the position can be found as well in Robert Post and Reva Siegel’s recent work on Section Five,6 and in the various articles that critique the current Court for “dissing” Congress.7 It may even be connected, in its contemporary form, to Cass Sunstein’s argument in favor of “minimalism,” made in his own Harvard Law Review Foreword.8 The modern version, however, has a much sharper edge than did his modified version of Thayerism. If one were in need of labels, I would call this the Anti-Court strain in contemporary progressive constitutional thought (a school of thought, I should add, that fairly includes each of the above-named scholars; their past writings adopt identifiably progressive substantive constitutional positions and challenge the interpretive methodologies favored by contemporary conservative constitutional scholars and judges). I acknowledge that this way of characterizing this strain of progressive constitutional thought is a bit tendentious, but the Anti-Court label seems appropriate nonetheless. After all, it is the Anti-Court orientation of academic writing in this vein that distinguishes it from other progressive constitutional work.

By contrast, I argued, William Marshall’s Virginia Law Review essay reflected a distinct but less visible and probably less theorized strain within contemporary progressive constitutionalism. This strain urges progressive constitutionalism to take the substantive claims of conservative constitutionalism seriously and to challenge them in ways that will not thereby justify broad judicial deference to political actors. For this reason, critiques of this kind do not seek to challenge judicial authority. Indeed, they may even intend to make space for the judicial implementation of a reading of the Constitution that is jurisprudentially legitimate and identifiably progressive. I think Laurence Tribe’s case comment on Bush v. Gore9 in the Harvard Law Review reflects a similar orientation.10 Some recent work challenging the Court’s recent federalism turn for the substance of the Court’s decisions rather than for the augmentation of judicial power they supposedly represent are also in this vein. If one were in need of a label, I would call this the Substantive strain in contemporary progressive constitutionalism.

Because these two strains of thought are not only different but also, in important respects, contradictory, I suggested that, tempting as it might be to embrace both of them, doing so was not a viable option. In choosing between them, moreover, I argued that one needed to be aware of the costs for progressive constitutionalism of embracing the Anti-Court strain. Finally, I concluded that those costs, particularly in light of present circumstances, would be quite high — too high, in fact, to make the emergence of the Anti-Court position a welcome development. Indeed, I suggested, the costs were likely to be so great that the Anti-Court position’s emergence was probably best viewed as a jurisprudential development that should be of real concern to those interested in developing a viable alternative to contemporary conservative constitutionalism.

Now, thanks to the energy of the student editors of the new Harvard Law and Policy Review, and the support of the American Constitution Society, we have an academic journal that is dedicated to grappling with just the kinds of questions that inspired Professor Tushnet to initiate that meeting several years ago. Since the thoughts that occurred to me then about this divide within progressive constitutional thought still seem relevant to me now, I offer them in connection with the new journal’s efforts to further a conversation that is very much in need of facilitation.

I. Some Preliminary Qualifications

Before comparing and contrasting these two styles of progressive constitutional writing, a few caveats are in order. First, even though the Anti-Court position is probably more visible right now, the Substantive strain probably commands the adherence of most mainstream constitutional practitioners and theorists. One might even think of the Substantive strain as the business-as-usual approach to progressive constitutionalism. Of course, the fact that the Substantive strain is still dominant may not be a point in its favor. Judging by the results thus far, it is not clear that this position has proven to be all that effective as a strategy for progressive constitutionalism. In fact, it is no doubt the perceived failure of the Substantive strain that has helped to make the Anti-Court position a plausibly attractive one for some progressive constitutionalists.

Second, like all distinctions, the one between the Anti-Court strain and the Substantive strain can and does break down. Issues of substance and issues of institutional authority are not easily disentangled. Substantive challenges to current federalism doctrine may sound institutional notes. For example, it is hard to articulate a pro-Section Five theory that does not do so. Nevertheless, there is a distinct emphasis in the two strands. A Substantive defense of a robust Section Five power, for example, would not sound like the kind of defense that an Anti-Court defense would offer. A Substantive challenge to Bush v. Gore11 – even when it makes reference to concerns about judicial overreaching – differs from an Anti-Court oriented one. Or so I want to suggest.

Third, in attempting to flesh out these two strains and the differences between them, I do not mean to suggest that there are no arguments against the position I favor or even that these two approaches exhaust the possible forms that progressive constitutionalism might take. I do think, however, they represent important and distinct approaches and that examining them as such might give some focus to more general discussions about the future direction of progressive constitutionalism.

Finally, it is not clear to me that either the Anti-Court strain or the Substantive strain is best viewed as a full-blown theory of what progressive constitutionalism should entail. Rather, each may be better understood as a style of critique. To be sure, scholarship in the Anti-Court vein comes closer to articulating an actual constitutional theory, as it does appear to suggest the proper way to resolve a wide range of adjudicated cases: judges should get out of the way. But, work in each of these modes seems to be at least as interested in critiquing key tenets of contemporary conservative constitutional thought as it is in explaining how courts ought to resolve constitutional dilemmas so as to accord with the requirements of an identifiably progressive constitutional theory. Surely the Anti-Court strain has grabbed a toe-hold within progressive constitutional thought because it seems to function as a critique of much of what conservative courts have been doing.

In sum, the two strains of scholarship I foreground reflect something of a split within progressive constitutionalism as to whether the problem with conservative constitutional thought is its puffed up view of the judiciary or the substantive content of its judicial decisions. No doubt, for many, the problem with conservative constitutionalism at times seems to encompass both concerns. But, there are differences in emphasis among progressive critics, and these differences are reflected in the different critical rhetorics that I highlight — the one Anti-Court, the other Substantive. These differences, moreover, are significant in the way that constitutional discourse always is. They affect not only how we talk about constitutional issues but also how we think about them, and thus how we come to think constitutional disputes ought to be resolved. These competing styles of critique are worth examining, therefore, both because they may influence ultimate outcomes and because they are in serious tension with one another.

II. The Anti-Court Style of Progressive Constitutional Critique

Let’s begin with the Anti-Court position. In some respects, Levinson’s FindLaw article stands outside the Anti-Court strain. It challenges the Constitution as a text, regardless of who is enforcing it, be it judges or the people assembled. But I still think the piece reflects the influence of the Anti-Court strain. It resonates with the idea that progressives for too long have thought about constitutional interpretation as a judicial exercise. By the very framing of the question (“Should I sign the Constitution?”), the reader is meant to look away from the courts as the institutional locus of constitutional interpretation. The implicit suggestion, therefore, is that we might all do better by engaging in just such a turning away from the judiciary so that we might better understand the potential for each of us to assume the responsibility for constitutional interpretation ourselves. Indeed, the essay specifically notes that judges could not address the objections it raises; the cause for concern is with provisions of the Constitution, and judges would thus be obliged to uphold the lawfulness of those very provisions.

There is a lot left unstated in the FindLaw editorial that enables it to read as an argument for progressive constitutionalism. The same line of argument made in 1955, for example, would not have the same feel. Such a direct appeal to unmediated popular constitutional decision making would likely read conservative precisely because it impliedly calls for a turning away from the courts. The article succeeds as an argument for progressive constitutionalism, therefore, in part because of its contemporary context: readers are supposed to know who the judges are right now, what kind of decisions they are making, and what kind of decisions they likely will make in the near future. Appealing to the courts to interpret the Constitution in ways that would conform to a substantively progressive constitutional vision, in other words, is implicitly treated as a foolish strategy for progressives. The real problems lie outside the capacity of courts. In any event, the courts we now have are not likely to embrace progressive constitutional interpretations. Hence, progressives should start looking elsewhere to bring about the kind of constitutional law they favor.

I do not mean to suggest that the Anti-Court argument is meant only to last until the next round of Supreme Court appointments. In the history of progressive constitutionalism, Anti-Court positions like the contemporary variant have a tendency to outlast the moment of their creation. Nor do I mean that arguments in this vein are offered primarily as arguments for a progressive constitutionalism – as opposed to, say, arguments for a populist one. What I do mean to emphasize is that it is possible for a position like this one to count as an argument for progressive constitutionalism only, or in large part, because of the current jurisprudential context. For this reason, Levinson’s decision to submit the FindLaw piece as a possible way of thinking about progressive constitutionalism makes some sense. I am not sure it would be possible for the piece to be so read, however, in a different time. One question to consider (and which I take up later) is whether that different time – as the recent decision in Hamdan12 suggests – might be upon us quicker than some might have thought when the Anti-Court progressive boomlet began.

While Levison’s FindLaw piece represents a somewhat obscure form of Anti-Court progressive constitutionalism, there are plenty of versions of the strain that more directly attack the Court’s role as constitutional interpreter. One might even conclude that this strain represents the most visible left constitutional theory now available. As the title suggests, Mark Tushnet’s book,Taking the Constitution Away From the Courts, certainly instructs progressives to turn away from judges as a locus of progressive political activity.13 Unlike the FindLaw piece, however, his book does not mean to challenge the Constitution itself. It means only to challenge the Court’s role as a primary – or even important – interpreter of substantial components of it.

Larry Kramer is softer in “dissing” the courts, but he disses them nonetheless. He could not be clearer on the point. “Let me hasten to clarify what I am not saying,” Kramer writes in his We, The Court Foreword, “I am not saying anything about whether the Court has done a good or a bad job in those areas in which it has retained a preeminent role. I am not offering a substantive theory of the proper content of constitutional protections.”14 What he is writing is a challenge to what he terms the emergence of “judicial sovereignty” as the position of the current Supreme Court. The Rehnquist Court, he writes, has “disowned the notion of popular constitutionalism altogether, staking its claim to be the only body empowered to interpret fundamental law with authority.”15 To bolster the point, he argues:

[t]here is, in fact, a world of difference between having the final word and having the only word. We may come to accept judicial supremacy, because we need someone trustworthy to settle certain constitutional disputes once and for all, and for a variety of historical, jurisprudential, and political reasons, the Supreme Court seems like our best option. Given this sort of pragmatic justification, it simply does not follow that the Court must wield its authority over every question of constitutional law; nor does it follow that, when the Court does exercise review, it should dismiss or too easily supplant the views of other, more democratic institutions.16

Needless to say, the argument is that the current Court has done just that. Kramer’s 100-page historical background to his critique of the current Court attempts to demonstrate how much room there once was for popular constitutionalism, how the Court has slowly but surely eaten away at it, and how we have now moved all the way from popular constitutionalism, through judicial supremacy, to judicial sovereignty. The result, he suggests, is that we have moved from the Court having virtually no say over the Constitution, to it having the final say, to it having the only say. And that is why, Kramer argues, the Rehnquist Court is problematic. They have upset a “settlement” that at least accommodated some role for popular constitutionalism.

Robert Post and Reva Siegel’s recent writings on Section Five sound similar notes though in a softer register still.17 They take aim at but one aspect of the Court’s current jurisprudence – its Section Five decisions – yet their objections are non-substantive. The problem with the Court’s Section Five holdings has almost wholly to do with the Court’s unwillingness to share interpretive authority over the Constitution’s meaning with Congress. To make the point, they go well beyond Larry Sager’s earlier, more substantive-sounding argument about Section Five enabling Congress to give life to under-enforced constitutional norms.18 Their argument is instead much more like Larry Kramer’s. Indeed, they rely on his distinction between judicial supremacy and judicial sovereignty in lodging their critique of the Court.

This last point is not without complication. Kramer himself relies on Sager’s under-enforced norms argument to help flesh out his distinction between judicial supremacy and judicial sovereignty. But, in the end, Post and Siegel are correct, I think, to assert that the thrust of Kramer’s argument, as well as their own, is quite different from Sager’s. They contend that Congress’ power should not be limited to that residual domain of constitutional protection that lies beyond judicial competence to enforce. So understanding the scope of popular constitutional interpretation, they contend, improperly bounds it by initial judicial determinations. Instead, they argue for a polycentric constitutionalism – the analogue to the popular constitutionalism about which Kramer writes – that gives much broader interpretive space to non-judicial actors than would exist within some judicially-defined zone of constitutional meaning.

Thus, a critical component of the Post and Siegel argument is its contention that the current Court’s Section Five jurisprudence is problematic because it reflects an attraction to judicial sovereignty. On this reading, the recent Section Five cases are not simply out of sync with a proper historical understanding of the underlying constitutional power at issue. Nor are they simply inconsistent with a desirable conception of the proper role of Congress in enforcing the Fourteenth Amendment that emanates from a pre-existing understanding of what Fourteenth Amendment freedoms are. The current Court’s Section Five jurisprudence is instead particularly to be condemned because it claims sovereign interpretive authority for the Court.

In this regard, Post and Siegel argue that a key feature of the Court’s new jurisprudence is its insertion of a separation of powers component into the Section Five analysis, such that Congressional claims to interpretive authority potentially infringe on the Supreme Court’s Article III powers. Putting the argument this way shifts the focus from a substantive debate over what the scope of Section Five should be to a debate over the Court’s role in interpreting constitutional law as a general matter. Such a framing suggests that what is at stake in the Section Five cases, then, is roughly the same thing that Kramer contends is at stake in the Rehnquist Court’s actions as a whole: the role of popular constitutionalism in the constitutional structure, and the specter of judicial sovereignty.

That said, the Post and Siegel line is softer than the typical Anti-Court position in one critical respect. They do not mean to suggest that the Courts should have but a minimal role in giving meaning to the Constitution. They instead portray the Court as a potential partner with democratic institutions in constructing constitutional meaning. Levinson’s FindLaw piece and Tushnet’s book are less willing to sign on to that more mild position, and Kramer does not highlight the collaborative potentiality in the way Post and Siegel do. Nevertheless, it is striking that, in offering this milder view, Post and Siegel portray the virtues of the partnership as a means of making constitutionalism a popular endeavor rather than as generating substantively progressive outcomes. The examples they offer of judicial/popular constitutional creation all read progressive, to be sure. But one could substitute an example that begins its story with Anita Bryant, the rise of the Christian Right, and culminates in Bowers v. Hardwick,19 without changing many of the lines in the article. If they mean to foreclose that outcome, they must have some distinction in mind between rights-enhancing popular constitutionalism and rights-diminishing popular constitutionalism. That, of course, is not an obvious line to draw, nor is it clear how one decides which actions fall on which side of it. The key point, though, is that they don’t mean to be offering guidance on that question. In these articles, their focus is elsewhere. That fact is not, at this point, intended to be a critique of their position. Some might even see it as a virtue. But that fact does help to show the non-substantive orientation of the position they espouse. So, for them, as for Sanford Levinson’s FindLaw piece, the Anti-Court position is able to read as a progressive constitutional position in large part for a reason left unstated: the assumed understanding that the judiciary, at present, is in the hands of conservative jurists.

I want to emphasize, once again, that I do not mean to suggest that the reason the Anti-Court progressive constitutionalists – including Post and Siegel in this piece – wish to shift the forum from courts to legislatures or popular decision making is simply in order to generate more progressive outcomes. Sometimes, of course, this seems to be the point the Anti-Courtists wish to make. But that is not always clear. They may wish only (or primarily) to generate popular constitutional control. If that is the case, however, then it becomes harder to see their position as being one that sounds in progressive constitutionalism, unless progressive constitutionalism is to be equated with a defense of popular constitutionalism independent of the substantive outcomes it would generate. Why that should be the case is not something that the Anti-Court progressive constitutionalists have attempted to explain, at least as I read them, though some have argued for the different claim that popular constitutionalism is, in gross and over the sweep of history, more likely to generate such progressive outcomes than are the courts.

III. The Substantive Style of Progressive Constitutional Critique 

Against this avalanche of new, Anti-Court progressive constitutional theory, the approach reflected in William Marshall’s recent essay in the Virginia Law Review is notably distinct.20 In fact, it is even kind of a throwback. His essay directs hardly any fire at the current Court for being too assertive. The chosen target is not the Court as such. It is a particular substantive articulation of the aims of conservative constitutionalism, as practiced by conservative judges and pushed by conservative scholars. The problem, his framing suggests, is not with the Court as an institution. Nor is it even with an ever-deepening cultural and intellectual assumption that the Court is the preeminent – and perhaps sole legitimate – expositor of the Constitution. The problem, rather, is the conservative constitutionalists who now control the Court, or at least do so some of the time and threaten to do so lots of the time. The problem, in other words, is with the substance of what courts are doing with their powers and what they claim to want to do.

With the target thus identified, a variety of standard moves follow. There are realist inversions. There are charges of hypocrisy. There are contradictions pointed out. Most tellingly, there is also criticism lodged at the Court both for its failure to intervene as well as for its interventions. Thus, the essay does not attempt to prove that there is a problem with what the (conservative) Court has been doing merely by listing cases in which the current Court has invalidated legislation. On this more substantive account, at least part of the problem with current jurisprudence consists of the Court’s refusal to intervene in a variety of areas in which plaintiffs have challenged the constitutionality of governmental action.

The key point, then, is that none of the moves the essay makes are intended to convince you of the need for the people to rise up and take their constitution back from courts. Rather, the project is to critique a particular brand of (conservative) constitutionalism while leaving in place a robust role for judicial review after the critique succeeds. The dispute with the current Court concerns the substance of the constitutionalism that conservatives are seeking to advance through courts, not that courts are advancing constitutionalism. And it takes the real threat that conservative constitutionalism poses to be the arguments justifying the current Court’s jurisprudence as something other than an assertion of strong judicial supremacy. For that reason, it engages particularly with the arguments of conservative constitutionalists, such as those set forth by Judge J. Harvie Wilkinson21 and, implicitly, John McGinnis,22 who offers a related account of modern conservative constitutional thought as seeking to improve popular processes by permitting small scale, social discovery by mediating institutions such as civic associations and religious groups.

Marshall’s essay might even be understood (though it may not have been so intended) to challenge the Anti-Court critique of conservative constitutionalism. Marshall’s essay implicitly assumes that conservative constitutionalists will not concede that they embrace judicial sovereignty, thereby taking some of the sting out of the Anti-Court critique from the Left. Marshall’s essay suggests that conservative constitutionalism is in the process of constructing an Ely-like account of the legitimate grounds for judicial intervention, one that reads “right” rather than “left.” J. Harvey Wilkinson’s recent writings, as well as McGinnis’s, might be understood, after all, as initial efforts to construct such a defense, casting conservative constitutionalism as promoting compassionate conservatism or enhancing the role of intermediary institutions. Seeing arguments of this kind as the real threat, the essay seeks to attack them before they gain traction. It does so by attempting to expose the ways in which conservative constitutionalism has a bias towards those with power and against those without it. (Among the controversial aspects of this type of argument, of course, are whether the actual claims made about who is for the powerful are convincing).

Laurence Tribe’s case comment on Bush v. Gore has a similarly substantive orientation in critiquing a notorious ruling by the Court’s conservative majority.23 The piece does contend that the Court should have treated the decision as a “political question,” a position that partakes superficially of the Anti-Court position. But, interestingly, the piece goes out of its way to cabin the limitation on the domain of judicial power that it defends. Assertions of zones of judicial impotence are of concern for those who subscribe to the substantive strain within progressive constitutionalism because that strain understands the exercise of judicial power to be an important component of progressive constitutionalism. So, Tribe explains that while the issue inBush v. Gore was a political question, the court could properly entertain constitutional challenges to equivalent recount rules – even in presidential elections – prior to the running of the election.

Moreover, the political question doctrine attack on the Court’s ruling forms only a part of the critique Tribe lodges. Much of his case comment does just what the Anti-Court progressive constitutionalists tend not to do: it presents a substantive argument about what the Court should do with the power it exercises. So, Tribe takes us deep into arguments about how the Court ought to construe the Equal Protection Clause, the Due Process Clause, and the First Amendment in light of the claim at issue in the recount litigation. Interestingly, in the course of making such arguments, Tribe makes the familiar progressive constitutionalist moves. Like William Marshall’s essay in the Virginia Law Review,24 the case comment shifts the foreground that the conservatives emphasize in their jurisprudence and the background that they obscure. Whereas the majority focuses on what is visible in the recount process, Tribe argues, it overlooks law’s role in structuring more problematic, but less visible background conditions that should be at least as objectionable. In this way, the piece suggests, the Court tends to background real social injustice. The move here is much like Marshall’s argument foregrounding takings law as a means of rebutting J. Harvey Wilkinson’s arguments about the compassionate wellsprings of conservative constitutionalism.25 It also shares with Marshall a sensibility that biases towards those in power (a notably contestable construct) infect conservative constitutionalism.

Both pieces, then, are in the style of what once seemed to be the traditional progressive constitutionalists’ position. I am thinking here of pieces like Cass Sunstein’s Lochner’s Legacy,26 which I read as a call for progressive attention to be directed at the substance of conservative constitutionalism and for a shift of attention away from the question of just how deferential to democratic institutions courts ought to be. Indeed, Tribe concludes his essay with a renunciation of the Anti-Court strain.

IV. Choosing Between Them

In my view, progressives make a mistake in seizing upon the increasingly popular, one-note attack on judicial action in taking on contemporary conservative constitutionalism. One reason for my concern is the striking similarity between the Anti-Court strain and a form of progressive constitutionalism that was dominant in the Progressive Era. That earlier version of Anti-Court progressive constitutionalism eventually gave way in the face of arguments pressed by advocates of a more substantive approach – I am thinking here, in part, of writings by the late Charles Black27 – that ultimately supplied the intellectual foundations for the Substantive strain in contemporary progressive constitutional thought. This earlier transformation within progressive constitutionalism — from a deep commitment to judicial restraint to a more substantive view as to when judicial intervention is justified – is an old but important story, well told by Morton Horwitz among others.28 The result of the initial progressive commitment to an earlier version of the Anti-Court position, however, was that many progressives were caught flat-footed when the Court turned away from a general posture of restraint in the 1940’s and 1950’s, to the extent that some New Dealers were even incapable of accepting the legitimacy of Brown v. Board of Education. (Notably, the Court made this shift in part because Roosevelt filled the Court with politicians rather than legal technocrats.) My worry, then, is that progressive constitutionalists are in the process of repeating that earlier mistake by once again becoming overly invested in judicial deference as a progressive constitutional position.

Another reason for concern is the Anti-Court strain’s romanticization of non-judicial constitutionalism. This is not to suggest that it is wrong for progressives to promote constitutionalism outside the courts, but it is surely no secret that this is a route with a no less checkered history than the oft-derided judicially-centered one. If it is a mistake to put one’s faith in judicial constitutionalism, it is equally a mistake to put one’s faith in non-judicial constitutionalism. One can readily understand why progressives in 1930s and 40s found Congress so much more attractive than courts, but it is hard to see why contemporary progressives should similarly be enthralled by the possibilities that the national legislature affords them in implementing their constitutional vision. There is, however, rather less acknowledgment of this problem among defenders of the Anti-Court position than one would hope to see. A virtue of the Substantive strain, therefore, is its willingness to recognize that the Court is still a potential institutional means for giving life to the constitutional vision progressives support. For example, for all of the recent statements by progressive scholars that emphasize the Court’s historic unwillingness to defend constitutional limitations in a time of war, and for all their knowing assertions that only the Congress may be expected to check the President when military operations are underway, a fair accounting suggests that the judicial branch has thus far proved to be a much more conscientious defender of separation of powers and ordered liberty in the War on Terrorism than has the current legislature. The Anti-Court strain of thought neither predicts that outcome nor supplies a basis for defending such judicial intervention.

The third reason for concern is that the Anti-Court strain does not strike me, in the end, as a very convincing critique of the current Court’s jurisprudence. To my mind, much of the Anti-Court rhetoric depends upon ascribing a position to the current Supreme Court that is overblown. As an initial matter, I do not know quite what it means to say that the current Court presents itself as the “only” constitutional interpreter. The Court has not said that Congress, the President, or the States act impermissibly when they decline to adopt legislation or take action on the ground that they believe such legislation or action to be unconstitutional. And that is true even if the Court would uphold that same action or legislation. Dawn Johnsen’s recent article on “functional departmentalism” makes these points nicely.29 As I read the cases, the Court has held only that federal governmental entities cannot take action that lies beyond their enumerated powers; they have not said that in principle extra-judicial constitutional interpretation lies beyond their power. They have said only that there are limits to a particular enumerated power that, once defined by the Court, must be obeyed. That sounds to me like the Court asserting its right to have the final, as opposed to only, say.

I suppose it is possible to read the decisions more broadly, as Post and Siegel and Kramer seem to do. Perhaps the Court does mean to be saying that it is unconstitutional (though judicially unenforceable) for a president or governor to veto legislation on the ground that the action is unconstitutional even though the Court has clearly indicated a different constitutional view. Conversely, perhaps the Court does believe that it is unconstitutional (though again beyond judicial remedy) for a state governor to sign a state Religious Freedom Restoration Act30 into law, declaring it to be an important means of enforcing the federal free exercise clause. But I don’t see why one has to read the cases so broadly. There is, to be sure, a question about whether the Court has given too little deference to the Congress in determining constitutional meaning, but I tend to think the Section Five cases are of a piece with Morrison31 and Lopez32 as concerted efforts to read Congress’s enumerated powers narrowly. Insofar as they are wrong, it is, at least to me, because of the substance of the provisions being interpreted and the Court’s substantive hostility to federal power more than any general commitment by the Court to an antagonism to popular constitutionalism as such. As a result, I am less inclined than some current interpreters to think that Larry Sager’s initial formulation of how to think about Section Five – viewing it, as he did, as related to a theory of under-enforcement – is too limiting.

This descriptive inaccuracy has real consequences. In particular, it has the effect of obscuring from view another aspect of the current Court’s conservative jurisprudence that should itself be of concern to progressive constitutionalists: its deference to the interpretive authority of institutions other than itself. Indeed, many of the Section Five cases that the Anti-Court strain criticizes for embracing judicial supremacy justify their narrow constructions of federal power by emphasizing the presumption that state officials are due an assumption that they will be faithful constitutional actors. It is partly on that deferential basis, for example, that the Court rejects evidence of unconstitutional local governmental action as a ground for entitling the national legislature to authorize federal suits against states under Section Five. And, in Romer v. Evans,33 the Court sets the stage for its holding invalidating the Violence Against Women Act by flatly declaring that Section Five does not reach key kinds of private discrimination. Notably, the Court in Romer defends that position in part by noting that, structurally, it believes state and local governments are assigned the lead role in combating such action.34 Yet these deferential aspects of conservative constitutionalism do not fit in well with the Anti-Court narrative that progressives have recently been developing, and thus they are largely overlooked.

There are various other ways in which concerns about judicial intervention are integral to the current Court’s conservative jurisprudence. And they, too, would seem to have no place in the Anti-Court critique of contemporary conservative constitutionalism. Dan Meltzer identifies some of these deferential features of modern conservative jurisprudence in a recent Supreme Court Review piece,35 but there are numerous other examples. The decision in Glucksberg,36 concerning the so-called right to die, is only the most obvious. Indeed, the opinions of the dissenting conservative justices in Hamdan37 all emphasized the importance of judicial deference, unanimously arguing that the Court did not even have jurisdiction to entertain the claim. The conservatives took this very same position in the earlier decision concerning the rights of Guantanamo detainees in Rasul.38 To be sure, the majority in both cases premised their decisions on statutory grounds, rather than on any judicial obligation to intervene grounded in the Constitution itself. But the statutory arguments they relied upon were not the only plausible ones available, even if they were persuasive. Thus, the Anti-Court strain of contemporary progressive constitutional thought would, if anything, seem to support the dissenters’ instinct that the Court should have avoided asserting its authority to police inter-branch disputes in these cases, perhaps by construing these statutes in a way that would have left the struggle to the branches to work out themselves. At a minimum, the Anti-Court strain offers little in the way of intellectual support for the majority’s position in either case, a fact that makes the Anti-Court strain a poor candidate for offering jurisprudential guidance in a realm – the scope of presidential power in the war on terrorism – that is surely to be central to constitutional law for the foreseeable future.

In this regard, it is precisely because the Anti-Court strain singles out conservative judicial activism as the problem that it threatens to work progressive constitutional theory into a corner: it needlessly rejects the progressive potential of a significant wielder of power – the courts – that our constitutional system has long imagined as legitimate and upon which the conservative constitutionalists are not the least bit embarrassed about relying. That it does so even as we are faced with two developments that may profoundly alter the social order — the emergence of a set of ideas about national security law that is designed to diminish judicial and legislative oversight of a wide range of policies implicating individual rights and liberties, and the rise of a powerful new social movement for gay and lesbian rights seeking judicial protection from majoritarian discrimination – makes the Anti-Court position particularly unattractive. The Anti-Court critique deprives progressives of a vocabulary for contesting the defenses of judicial abdication that conservative constitutionalism makes. Indeed, the critique would seem to fairly invite action by the political branches aimed at chipping away at those protections that the Court, through its independent interpretations, recognizes.

This concern about the effect of the Anti-Court critique on progressive constitutionalism is only heightened when one turns attention away from the Supreme Court of the United States and towards state courts. Even if one sets the Massachusetts Supreme Judicial Court’s controversial decision regarding same-sex marriage to one side, state courts have clearly been a major force in reorienting constitutional and legal ideas about the rights of gays and lesbians in a range of less controversial cases. They have done so not only by upholding anti-discrimination ordinances against conservative legal challenges but also by concluding that state constitutional guarantees entitle same-sex couples to adopt and even to enter into civil unions. Such protections, rooted in state constitutional interpretation, have generally held up against political efforts to overturn them, but there is little doubt that state legislatures would not have responded as quickly without judicial intervention. It was courts acting in advance of political will that made the difference. State supreme courts, not state legislatures, have also led the revolution in school financing equality, though judicial actions have catalyzed political responses. Thus, the progressive Anti-Court critique that targets so vigorously the federal Supreme Court’s activism only feeds the conservative mantra that courts in general are overstepping their bounds in issuing rights-protecting decisions. Yet progressive constitutionalists enamored of the Anti-Court rhetoric rarely take account of its potential downstream effects on state court interpretation and legitimacy.

To be sure, some writing in the Anti-Court strain responds to concerns such as these by arguing that courts, in general, are poor protectors of individual rights and should therefore not be the focus of progressive constitutionalism. (It must be emphasized again, though, that such assertions focus almost solely on record of the nation’s High Court). That claim is, at bottom, an impossible-to-resolve empirical one. But whatever its truth in gross, I am not sure that it makes sense to compare, as the Anti-Courtists sometimes do, politics to courts over the full sweep of American history. That seems to me a comparison that is not necessarily relevant to what progressive constitutionalism should be seeking now or in the near term future. The risk that the Courts will prove to be the institutional obstacle to the implementation of a progressive constitutional vision for the foreseeable future seems to me to be quite unsupported. Surely one needs something more than Lopez and Morrison and the recent Section Five cases to make that case.

Superficially, of course, it may seem that the Anti-Court style of critique is deadly accurate, if only because the rhetoric that it relies upon in critiquing contemporary conservative constitutionalism seems to have real public appeal, something that cannot be said for some other progressive constitutional rhetorical traditions. But I am doubtful that this Anti-Court rhetoric will remain powerful over time. There is a sense, at present, that turnabout is fair play. This sense no doubt adds credibility to the recent attacks on conservative judicial activism that have been issued from the Left. The hypocrisy of the prior conservative attacks on judicial overreaching seems to be newly revealed.

But conservative constitutionalists are already in the process of constructing a substantive defense of the Court’s effort to replace the New Deal settlement Professor Kramer describes with a new one that comports with a respect for democracy.39 The seeds of this reconstruction effort are present in works like the one by J. Harvie Wilkinson that William Marshall criticizes, or the recent article referenced earlier by John McGinnis. To like effect is Judge Michael McConnell’s recent review of Justice Breyer’s defense of a constitutionalism premised on the promotion of the Constitution’s supposed preference for active liberty.40 In his review, Judge McConnell claims that the democracy-enhancing function Justice Breyer champions for his brand of judicial review – which is cast as a (progressive?) antidote to the textualism and originalism of his more conservative colleagues on the Court – actually accords better with conservative constitutionalism.41 Tellingly, McConnell argues not only that fidelity to text and original intent comport with a commitment to democracy. He suggests as well that certain conservative substantive commitments, like the commitment to federalism underlying the Court’s recent states’ rights revival, have a democracy-enhancing function. Wilkinson sounds similar notes in defending a robust constitutional view of the President’s ability to use executive authority to engage the “enemy.” McGinnis also writes in this vein, articulating a conservative constitutional affinity for the notion that the Constitution, at root, embraces a kind of Tocquevilian preference for the autonomy of so-called intermediary institutions.

Thus, if the progressive constitutional position is simply that the constitutional order should make substantial room for popular constitutionalism, then it seems to me that the conservatives are already in the process of explaining how their substantive constitutional vision satisfies that criteria. The conservative vision purports to make space for accountable elected actors to promote their visions of the good life at the state and local level and in the executive branch, even as it insulates and protects third-sector institutions, such as the Boy Scouts, from the attempts of an overweening state to quash attempts at self-discovery and expression. It is true that one could counteract that with a rigidly Anti-Court position, thereby claiming an even greater commitment to the principle of majority rule than the new conservative constitutionalism could legitimately claim. But the conservative effort to identify a democracy-enhancing function for conservative judicial interventions, if not challenged on its own terms, may well seem reasonable when placed side-by-side with a progressive Anti-Court position, given how rigid such a position would have to be in order to appear to be an alternative that is truly more respectful of popular will than its conservative rival. And, if proponents of the Anti-Court strain do not take their position all the way, the force of their critique, I think, will be severely diminished.

For all of these reasons, then, I think progressives might more fruitfully deploy their scholarly energy contesting the substance of conservative efforts to construct a new constitutional vision, rather than refining the progressive defense of popular constitutionalism and the related critique of the current Court for failing to be sufficiently respectful of it. But, in fact, my concern with the rise of the Anti-Court strain actually goes deeper. My worry is that the rise of the Anti-Court position among progressive constitutionalists plays into conservative constitutionalists’ claims that progressive constitutionalism is “just” politics because courts cannot conscientiously arrive at progressive constitutional outcomes. I do not believe that even the Anti-Court progressive constitutionalists mean to concede this point, but I worry that they are in the process of unintentionally doing just that by suggesting that the legitimate alternative to conservative constitutionalism is a reduced judicial role in enforcing the Constitution. Such a contention impliedly excludes the possibility that enhanced judicial enforcement could be both progressive and jurisprudentially sound. Why would progressive constitutionalists want to make such a concession?

V. Conclusion

My analysis thus far has concerned styles of academic argument. But that does not make it just an academic argument. Insofar as the Anti-Court style seeps from the academic community into the progressive legal culture generally, through teaching, popular writing, conferences, testimony and the like, I want to raise concerns about it now, before it so captures the progressive constitutional imagination that people will have forgotten what else there might have been to say. Indeed, I highlight the advantages of the Substantive strain, fraught with problems as it is, in part because the question of what a substantive progressive constitutional vision looks like is unavoidable. Even if we all become convinced that constitutionalism should be primarily the people’s business, rather than the Court’s, we would then have to figure out what to say when asked to offer an interpretation of the Constitution. I do not see why some of the answers progressive constitutionalists would give at that point might not also be ones that they could be arguing that judges ought to embrace as the best interpretations of the founding document.

For that reason, the appearance of the first issue of the American Constitution Society’s journal, the Harvard Law and Policy Review, is an important development. It provides a forum for figuring out what there might be to say against contemporary conservative constitutionalism beyond a critique of judicial activism. That does not mean, however, that progressive constitutionalism should simply repeat and reaffirm old substantive progressive constitutional commitments. It has long been a precept of the progressive view that the Constitution is not frozen, and even recent conservative judicial nominees seem hesitant to challenge that notion. Its provisions are, in important respects, simply too open-ended and forward looking for that not to be the case, and the deficiencies of a pure originalism are now too well known. The Constitution is, as Richard Fallon recently put it, a dynamic document.42 But for that very reason, the task for progressive constitutionalism, as I see it, is to engage with the substance of constitutional interpretation in light of new understandings of the progressive tradition itself, including new understandings arising from contemporary conservative critiques of its prior substantive commitments. It would be ironic, after all, if a dynamic progressive constitutionalism proved to be committed to an orthodoxy consisting of past substantive progressive constitutional positions.

Insofar as Levinson’s FindLaw piece can be read in this spirit – seeking to call attention to features of the current constitutional consensus that are inconsistent with present day progressive constitutional commitments but that are generally taken for granted as givens even by progressives– it is consistent with this direction for the future of progressive constitutional thought. But its implicit plea for progressives to turn away from courts is not.

In my own work, I have tried to do something similar with respect to the doctrine of federalism, suggesting what a progressive vision of judicially enforceable federalism might be and how it might build upon the conservative federalism revival, even as it challenges and reworks it, rather than simply reflexively defend the New Deal-era preference for plenary federal legislative power under the Commerce Clause. The standing room only crowd that attended the American Constitution Society’s panel on progressive federalism at the annual meeting in Washington, D.C. two years ago – a panel convened at a time when concurrent break-out sessions were addressing more traditional progressive constitutional topics, such as the constitutional law of reproductive rights – suggests to me a latent desire on the part of many students and young practitioners for just such a full-scale reconsideration of the substance of progressive constitutional thought.

To engage in that that effort fully, however, we need to be wary of the siren-song of the Anti-Court strain. That approach has been a powerful force in progressive constitutional thought for the last decade, and it has helped to call some aspects of conservative constitutional thought into doubt. But effective as it has been, it has also shifted attention away from the kind of hard, substantive thinking about what the progressive constitutional vision should be going forward because it impliedly suggests that the solution to an ascendant conservative constitutionalism is a much diminished constitutional role for the courts. That is far too constricted a frame through which to view the future of constitutional law.


* David Barron is Professor of Law at Harvard Law School.
[1] Sanford Levinson, Why I Did Not Sign the Constitution: With a Chance to Endorse It, I Had to Decline, Writ: Findlaw’s Legal Commentary (Sept. 23, 2003),http://writ.news.findlaw.com/commentary/20030923_levinson.html.
[2] William P. Marshall, The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson, 90 VA. L. REV. 355 (2004).
[3] Larry D. Kramer, The Supreme Court, 2000 Term—Foreward: We the Court, 115 HARV. L. REV. 4 (2001).
[4] LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
[5] MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
[6] See, e.g., Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Polycentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943 (2003) [hereinafter Post & Siegel, Legislative Constitutionalism]; Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 IND. L.J. 1 (2003) [hereinafter Post & Siegel, Protecting the Constitution].
[7] See, e.g., Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80 (2001).
[8] Cass R. Sunstein, Supreme Court, 1995 Term—Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4 (1996).
[9] 531 U.S. 98 (2000).
[10] Laurence H. Tribe, Comment, Erog v. Hsub and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors, 115 HARV. L. REV. 170 (2001).
[11] 531 U.S. 98 (2000).
[12] Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
[13] See Tushnet, supra note 5.
[14] Kramer, supra note 3, at 126.
[15] Id. at 127.
[16] Id. at 112.
[17] See, e.g., Post & Siegel, Legislative Constitutionalism, supra note 6; Post & Siegel,Protecting the Constitutionsupra note 6.
[18] See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
[19] 478 U.S. 186 (1986).
[20] See Marshall, supra note 2.
[21] J. Harvie Wilkinson III, Why Conservative Jurisprudence is Compassionate, 89 VA. L. REV. 753 (2003).
[22] John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 Cal. L. Rev. 485 (2002).
[23] See Tribe, supra note 9.
[24] See Marshall, supra note 2.
[25] Id. at 362-64.
[26] Cass R. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 893 (1987).
[27] See, e.g., Charles L. Black, “State Action,” Equal Protection, and California’s Proposition 14, 81 HARV. L. REV. 69 (1967).
[28] See, e.g., MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY (1992).
[29] Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, 67 LAW & CONTEMP. PROBS. 105 (2004).
[30] In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court struck down the Religious Freedom Restoration Act. The Act required states to exempt religious uses of peyote from state drug-control statutes. The Court held that because states were not constitutionally required to have such exemptions, Congress could not use the Section Five power to make them do so.
[31] United States v. Morrison, 529 U.S. 598 (2000).
[32] United States v. Lopez, 514 U.S. 549 (1995).
[33] 517 U.S. 620 (1996).
[34] Id. at 628.
[35] Daniel J. Meltzer, The Supreme Court’s Judicial Passivity, 2002 SUP. CT. REV. 343 (2002).
[36] Washington v. Glucksberg, 521 U.S. 702 (1997).
[37] Hamdan, 126 S. Ct. at 2749.
[38] Rasul v. Bush, 542 U.S. 466 (2004).
[39] Larry D. Kramer, We The People, 29 BOSTON REV. 15 (2004).
[40] Michael W. McConnell, Active Liberty: A Progressive Alternative to Textualism and Originalism?, 119 HARV. L. REV. 2387 (2006) (reviewing Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005)).
[41] See id. at 2416–18.
[42] RICHARD H. FALLON, THE DYNAMIC CONSTITUTION: AN INTRODUCTION TO AMERICAN CONSTITUTIONAL LAW (2004).

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