A New Constitutionalism for Liberals


It has been apparent for at least a decade that liberal constitutional theory is in deep trouble. Of course there are many versions of liberal constitutional theory, but they have essentially no connection to existing practices of constitutional law, considering as practices of constitutional law all the activities of our institutions of government that implicate-interpret, advance, deal with, whatever-fundamental principle. Instead, liberal constitutional theory’s vision of the future is nostalgia for the past. For liberal constitutional theorists the Warren Court, or Justice Brennan, basically got everything right, at least in their approach to identifying constitutional law. True, they may have faltered sometimes in implementing constitutional principles, but all that needs to be done today (or tomorrow, or after the next presidential election, or… ) is to appoint justices in the mold of Warren, Brennan, or Thurgood Marshall. And here I really do mean all that needs to be done: No rethinking of what constitutional law is all about seems needed to liberal constitutional theorists.

The contrast with conservative constitutional theory is dramatic. Over the period that liberal constitutional theory basically stopped, conservative constitutional theory flourished. Conservatives articulated a vibrant discourse of originalism, even as they ignored originalism when doing so suited their more fundamental constitutional aims. They provided an intellectual foundation for programs of privatization and the transformation of the modem regulatory state, even as their allies in politics were forced to compromise by accepting much environmental and other regulation. Most important, though, conservative constitutional theory offered a vision of a place toward which constitutional law might move, while liberal constitutional theory looked backward and only grudgingly accepted that Earl Warren and William Brennan were dead.

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