Progressives and Constitutionalism

Over the weekend E.J. Dionne took on the politically inevitable task of defending “constitutionalism” from conservatism, mainly by reminding us of the rich literature of research and opinion on the proposition that our constitutional system was intended to accommodate a changing role for government in general and the federal government in particular. But he goes farther and argues that a stable constitutional system depends on a degree of economic equality, or at least an absence of gross inequality:

For too long, progressives have allowed conservatives to monopolize claims of fealty to our unifying national document. In fact, those who would battle rising economic inequalities to create a robust middle class should insist that it’s they who are most loyal to the Constitution’s core purpose. Broadly shared well-being is essential to the framers’ promise that “We the people” will be the stewards of our government.

Truth is, “originalism” as we understand it today is a relatively recent doctrine. When I was taking constitutional law back in the late 1970s, “progressive” approaches like those endorsed by Dionne were far more prevelant than “originalism.” So this subject is inevitably (and has always been) an ideological battle-ground, and not the paradise of settled doctrine recently upset by “radical” progressives that “constitutional conservatives” tend to project.

But while I offer best wishes to those who wish to argue for “constitutional progressivism,” I do think it’s important for progressives to raise an occasional objection to the general idolatry of the Founders and their work before competing for the allegiance of their acolytes. Yes, the basic constitutional framework has held up relatively well, and probably better than the Founders themselves had any reason to anticipate. But it still required a bloody civil war and significant amendment (not to mention judicial interpretation) to function effectively at all.

“Constitutional conservatives” engage in making a Golden Calf of the constitution (as amended even before its adoption by the Declaration of Independence, of course) because they are interested in preserving eighteenth and nineteenth century governing norms against both democratic demands and more contemporary necessities. So they ignore the document’s imperfections and deem it blessed perpetually by Nature or God Almighty–so long as it serves their reactionary purposes. I’d prefer to stay well clear of that sort of obscurantism.

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Ed Kilgore

Ed Kilgore is a political columnist for New York and managing editor at the Democratic Strategist website. He was a contributing writer at the Washington Monthly from January 2012 until November 2015, and was the principal contributor to the Political Animal blog.