Constitutional Dreaming

As conservatives move to consolidate their hold on the courts, liberals and progressives look ahead--way ahead--and plan their strategy for taking back the Constitution.

The partisan struggle in Washington for control of the courts rages on. Yet no matter how the fierce battle over the right to filibuster against judicial nominees plays out in the US Senate, the Republicans will win the war.

Already, Republican judges are in the majority in 10 out of the nation's 13 federal appellate courts. By the end of President George W. Bush's term the count will likely be 12 out of 13, and about 85 percent of those circuit court judges will be Republican appointees, according to a March report in the National Law Journal. Seven of the nine sitting Supreme Court justices (and 16 out of 22 appointments in the last 50 years) were put forward by Republicans, as well.

All of which lends a certain antic quality to House majority leader Tom DeLay's description of the federal courts last month as ''the left's last legislative body.'' Federal judges are appointed for life; it could be a generation before the political balance shifts again.

Nevertheless, at a conference at Yale last month, many of the nation's top left-leaning law professors met with more than 600 activists, lawyers, and law students to imagine the day when Democrats and liberals emerge from the wilderness. The Yale confab, organized under the (optimistic) title ''The Constitution in 2020,'' was sponsored by key elements in the not-so-vast left-wing conspiracy: the Yale Law School, the Center for American Progress, the George Soros-funded Open Society Institute, and the American Constitution Society (ACS), a fast-growing organization set up four years ago to counter the work of the influential Federalist Society, which has been at the forefront of the push for a more conservative judiciary since its launch in 1982.

The Yale event kicked off a multi-year ACS project on ''The Constitution in the 21st Century,'' which is intended to advance ''a progressive constitutional vision - though organizers admit they are a long way from full agreement on what that vision is. The brainstorming will continue in Washington in July at the ACS national convention, with three days of panels on such topics as ''The Future of Election Law,'' ''Interrogation, Torture, and the War on Terror,'' ''Moral Values and the Constitution,'' and whether there should be new limits on ''the commander-in-chief power.'' Former North Carolina senator and possible 2008 presidential candidate John Edwards is scheduled as a featured speaker.

Predictably, the April meeting at Yale drew instant howls from the right. Rush Limbaugh warned his listeners that ''a bunch of liberal elitists'' were ''toying around with the idea of rewriting'' the Constitution. John Hinderaker wrote on the Weekly Standard's website that the political left ''wants the Constitution to enshrine its own policy preferences - thus freeing it from the tiresome necessity of winning elections.''

But ACS programs director Bill Yeomans says the effort is modeled on the success conservatives have had in developing a few clear ''talking points'' on constitutional law. The primary goal is building a network of lawyers, scholars, and judges who communicate more effectively with the public.

''We're not talking about amending the Constitution here,'' says ACS executive director Lisa Brown. Rather, the emphasis is on ''interpreting it in ways that we think are more in the spirit of the founding values'' - and then promoting that vision to the American people.

Indeed, if the discussion at Yale is any indication, many on the left are taking more seriously the idea, after years of relying on the courts to expand legal rights, that there is only one court of appeals open to them now: the court of public opinion.

. . .

In the 1980s, when Ed Meese was Attorney General, the Justice Department drafted a series of documents intended to give federal litigators guidelines on the Reagan administration's view of constitutional issues. One 1988 report detailed the conservative philosophy of ''originalism,'' or interpreting the Constitution to mean only what it was understood to mean at the time of its drafting; thus, ''government attorneys should advance constitutional arguments based only on this ‘original meaning.'''

The report advanced the argument that courts have interpreted the powers of Congress too broadly and directed litigators to urge courts to restrain federal power in favor of states and localities. Meanwhile, another document, titled ''The Constitution in the Year 2000,'' considered 15 issues central to the conservative agenda and noted that the ''critical'' factor in shaping constitutional law in coming years would be ''the values and philosophies'' of those selected for the federal judiciary.

Taken together, says Dawn Johnsen, an ACS board member and law professor at Indiana University (who came across the little-known reports during research), the Meese reports ''more or less said, ‘We want to remake Constitutional law.'''

Not that there's anything wrong with that. The left wants to do it, too. But how?

Many liberals and progressives, who tend to see the Constitution as designed for the very purpose of protecting the rights and liberties of minorities, take it as a given that courts are the only reliable defenders of unpopular rights. As participants at the Yale conference imagined the day when ''we'll have our people on the bench,'' as one put it, a wish list of legal changes emerged: an end to the death penalty and to the disenfranchisement of ex-felons, reductions in sentences of drug offenders, strong defense of the rights of immigrants and foreign nationals, and protection of civil liberties in wartime. Some spoke for more restraints on the executive branch and applauded recent Supreme Court rulings against presidential power to hold ''enemy combatants'' in detention without trial.

Yet others argued that the Constitution should be seen as offering an expansive vision of a better life for the broader community. Cass R. Sunstein, a law professor at the University of Chicago, spoke of ''economic rights'' - the right to a job with adequate pay, to health care, to a home and an education - and recommended the kind of campaign advocated 61 years ago by Franklin Delano Roosevelt in his call for ''a second Bill of Rights.'' Yale Law professor Bruce Ackerman advocated a ''citizenship agenda.'' The ''citizenship clauses'' of the 14th Amendment (which state that ''the privileges and immunities'' of citizens shall not be abridged), for example, could be invoked to support for ''stakeholder'' grants of $80,000 to every citizen at birth in order to guarantee economic opportunity. Others saw potential political appeal in an immediate voting rights campaign to correct flaws in the electoral system.

Of course, all of this can be easily caricatured by conservatives, with their ready complaints about ''legislating from the bench.'' But while there are certainly those on the left who look for inspiration to court rulings like the Massachusetts Supreme Judicial Court's decision last year on same-sex marriage, there are also those who advocate for a ''popular constitutionalism,'' which seeks to revive the tradition of Jeffersonian democrats and early-20th-century Progressives, who distrusted the power of judges and pushed for legislative victories. In recent years scholars such as Mark Tushnet of Georgetown University and Stanford Law dean Larry D. Kramer have dusted off the argument that, as Felix Frankfurter put it in the 1920s, ''the real battles of liberalism are not won in the Supreme Court.''

Tushnet, author of ''Taking the Constitution Away from the Courts'' (1999), has urged progressives to rediscover ''the dignity of legislation.'' He argues for a populist politics in which the citizenry rallies around the highest principles of the Constitution's preamble and the Declaration of Independence, bringing pressure to bear on legislators and other elected officials. Indeed, Tushnet questions the very notion of ''judicial review'' - the power of courts to be the final authority on the Constitution.

(Tushnet was not at the Yale conference, but his influence was felt. At one point Stanford law professor Kathleen M. Sullivan felt compelled to take what she said might sound like a controversial view: ''Courts are good.'')

While few other scholars go so far as to challenge judicial review, Sunstein does advocate a ''judicial minimalism,'' which he describes as ''giving the democratic process wide room to maneuver.'' After all, he emphasizes, Roosevelt wanted the ''second Bill of Rights'' to be pushed through Congress, not written into the Constitution itself. And at Yale, Sunstein caused a good deal of grumbling by questioning the legitimacy of Roe v. Wade, and even went so far as to suggest that progressives should stop looking to the Warren Court and Brown v. Board of Education as their model for judicial intervention.

Pamela S. Karlan, a Stanford law professor, was one of several at Yale who found that notion troubling. ''There are a lot of things that can't be done through the political system,'' she said in an interview. In the 1950s, it was impossible to get school desegregation through Congress, she said. ''The idea that we would have been better off waiting is, to me, kind of loopy.''

. . .

Charles F. Sabel, a professor of law and social science at Columbia Law School, believes a new judicial model may be emerging that steers a pragmatic middle course. Citing court rulings on education reform, such as those in Massachusetts and Texas, he says courts are playing a vital role in insisting on equal rights to quality public education. Yet they are also willing to let legislatures figure out the specifics.

''It doesn't look like the kind of court intervention that was once much beloved by liberals and is now pretty much decried by everybody,'' Sabel says. ''I want courts to do less - less doctrinally - but I think courts have a fundamental role to play in asserting the broad contours of the fundamental commitments of our society.''

Avoiding the creation of a new constitutional doctrine, in fact, is a common desire of cautious judges. Yet when judges find clear language in the Constitution - such as the guarantee found in many state charters that all children are entitled to a free public education - their proper role, Sabel says, is to recognize the core right and then permit experimentation on how to implement that right. And in education reform, he notes, it's not just legislatures but communities that end up working out practical rules - a process he call ''democratic experimentalism.''

William P. Marshall, a law professor at University of North Carolina, says conservatives may have had an easier time taking their ideas about the Constitution to a wider public ''because they appeal to majoritarian interests.'' Yet Marshall believes there are ways for liberals to tap into the American attachment to pure constitutional principles such as freedom of speech and freedom of religion. Even in a nation with a vast majority telling pollsters they believe in God, he says, there are good reasons to argue that the First Amendment requires the separation of church and state. The Framers believed not in protecting the nation from religion, says Marshall, but in protecting religion from state intrusion - or from government favoritism of one religion over another. One of the ''talking points'' Marshall recommends is to insist that keeping government disentangled from religion is not ''anti-religious.''

When liberals and progressives regain national political power, they will surely turn to the courts again to drive at least part of their agenda - just as conservatives seem to want to do now, as they push for judges who share their interpretation of the Constitution. But in the meantime, conservative political success has made a deep impression on the left. Even those who see an important role for judges say progressives need to be ''less court-centric.'' In the near term, of course, they'll have little choice.

This article was originally published in The Boston Globe.

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