Robert Post and Reva Siegel have a rather interesting, albeit inconclusive article about liberal constitutionalism over at The New Republic. I’ve written at great length about the issue (here and here) and my own democratic game-plan lines up closely alongside theirs.
They note that the recent rise of originalism can be attributed to the parallel rise of Reagan Republicanism. The notion of ‘originalism’ certainly wasn’t created in the late 70′s and early 80′s, but the heavily political connotations that accompany it today were solidified nearly 30 years ago.
The authors concede that originalism has appealed to the voting populous because it “depicts judges as neutral umpires bound to apply disinterested rules of law.” This oversimplification is undoubtedly the reason that it appeals to so many people, but I’m honestly not sure what Democrats can do to counter the conservative stronghold on the judicial subject without trying to gain some ground on originalism.
Liberals do need to re-learn how to make claims directly on the Constitution–an instinct they lost after decades of defending Warren and Burger Court precedents. But to advise liberals to make claims as originalists mistakes the source of originalism’s power and misconceives what liberals must do to develop their own vibrant constitutionalism.
Originalism, original ‘intent,’ and original ‘meaning’ all sound so appealing because they are defined in such palatable terms. Conservatives, moderates, and many liberals all find comfort in the idea of a judiciary that adheres to precedent in a way that increases consistency and fair play. Originalist decisions, by popular belief, enforce the rule of law, ignore the individual biases of judges, and limit the role of the government.
Democrats have a few options here. First, they could accept the term ‘originalist’ as their own and try to convince Americans that a progressive outcome can follow from originalist logic. This outlook might fly in some academic circles, but it would be tough to convince ordinary Americans that ‘liberal’ justices are good. Another option that the democrats have is to accept that conservatives are ‘originalist’ and democrats are ‘______.’ Post and Siegel favor this approach, but they never really mention the idea that they would push instead of originalism. They suggest the following:
Quite simply, then, progressives can argue that they are committed to achieving the Constitution’s purposes. Protecting equal citizenship in work, education, and the family is necessary to establish the democracy the Constitution seeks to secure. Subordinating arbitrary executive power to the rule of law is necessary to safeguard the freedom the Constitution exists to preserve. Enabling the federal government to meet the needs of its citizens is necessary to sustain the powerful nation the Constitution seeks to create.
Their ideas sound wonderful, but its hard to counter the seemingly clear-cut connotations that accompany anything that is an alternative to originalism. The idea of developing and pushing an alternate form of interpretation is definitely the most appealing for Democrats — if they could rally behind a single idea. The notion of a ‘living constitution’ isn’t particularly appealing to Americans because it reeks of judicial activism in the most pejorative sense.
Democrats need to either claim the title of originalist or show Americans why that title is more like a scarlet letter than a badge of honor. If they fail to successfully sell either of those two ideas soon, the most likely outcome is a major conservative shift to the right within the next 5-7 years. In the past when the Court has been filed with justices of a similar political persuasion (conservatives in the 30′s, liberals in the 50′s and 60′s), Americans have slowly but invariably grown dissatisfied with the Court.
Unfortunately for the Democrats, if they don’t spend major political capital on the court, I wouldn’t expect another major shift in popular opinion until about…..2025.