BOOKS SEPTEMBER 1, 2009
The Constitution in 2020
Edited by Jack M. Balkin and Reva B. Siegel
(Oxford University Press, 355 pp., $19.95)
There is a genre, the "constitutional manifesto," that sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics. The latter category may be nicely illustrated by the competing slogans of interest groups contesting the Sotomayor nomination: "judicial activism," "empathy," and so on. The constitutional manifesto, by contrast, attempts to expound a philosophical vision of constitutional law and politics that is nonetheless accessible to a broad audience, and is also politically savvy, so that it may guide a political and legal movement in particular directions over time. The constitutional manifesto therefore declines to take short-term political constraints as a given, and instead attempts to lay out a program of action that can shift the location of those constraints in the future. It is both intellectual and political, and its integrity is determined by the relationship between those terms. The Constitution in 2020 is the latest example of a constitutional manifesto: a collection of essays by self-identified "progressive" scholars of law and politics.
To understand its genesis, one must begin the story further back, with the progressive movement's antithetical twin: the conservative legal movement that began in the 1970s. Reacting in part to the perceived "activism" of the Warren and Burger Courts, conservative lawyers, many associated with the Reagan administration, founded or captured a range of institutions and used them to develop a cadre of conservative legal elites. The pipeline for young conservative legal talent begins with membership in law-school chapters of the Federalist Society, followed by a judicial clerkship, a job in the Reagan/Bush/ Bush administrations or in a prestigious conservative law firm, a quasi-academic post in a conservative Beltway think tank, or all of the above. But the institutional side of the conservative legal movement was not the main source of its energy. The movement drew its strength from its theoretical and ideological wing. Conservative academics and judges, including Raoul Berger, Robert Bork, Frank Easterbrook, and Antonin Scalia, developed a suite of legal theories and commitments centering on "originalism," or the idea that the original public meaning of the Constitution in the founding era should control its interpretation today.
Originalism stitched together diverse elements of the conservative legal coalition, who could each see something congenial in the "original" Constitution and in originalism's purported corollary, the promise of a "restrained" judiciary obedient to the rule of law. Economic libertarians, who pined for the old laissez-faire Constitution that was largely dismantled by the New Deal, could hope for a restoration of the Lochner Court's protection of property rights. (Lochner was a 1905 case that struck down a maximum-hours law, and therefore symbolizes judicial review to promote economic liberty.) Law-and-order conservatives could believe that originalism promised to undo the work of the Warren and Burger Courts in creating procedural rights for accused criminals. Traditionalist pro-business conservatives could hope that originalism meant stability, and respect for settled precedent, and an end to the unsettling creativity and redistributive tendencies of liberal judges. Social conservatives could anticipate the overturning of Roe v. Wade. Statist conservatives could hope to restore what they saw as an original commitment to strong presidential power and a "unitary executive." And old-fashioned populists could see in originalism a fetish that would ward off cosmopolitan judicial elites who make policy and displace the people's hard-won democratic prerogatives.
Originalism was easy to sell, because of its simplicity and its resonance with the larger American culture of Founder worship. Originalism enjoys enduring appeal among the middlebrow public, the sort of people who buy biographies (or hagiographies) of the Founders in astonishing numbers. But there were latent tensions and fault lines within the conservative legal coalition. A major theoretical and political fissure developed over the role of precedent, or stare decisis--the legal principle that past decisions should be respected. Business-oriented and traditionalist conservatives wanted stability, not counter-revolution, and at the theoretical level it proved hard to reconcile originalism with the raw fact that large chunks of the original constitutional order are, from the standpoint of the present, normatively horrifying, economically obsolete, or politically unacceptable to supermajorities of the current citizenry. Moreover, in the usual way of ideological movements, new developments threatened to splinter the conservative legal coalition. After 2001, for example, statist conservatives concerned about national security supported the Bush administration's expansive counter-terror policies with legal arguments, while a small but vocal group of libertarian conservatives opposed them, and made alliances of convenience with civil libertarians of the left.
Originalism also suffered withering, and quite justified, criticism from the legal academy. Originalism was shown to be theoretically problematic on several scores: it is unclear why exactly the original public meaning should control all subsequent constitutional interpretation, and it is unclear that the founding generation expected that it would do so, or that it meant the Constitution to so instruct. The latter point creates a kind of paradox at the heart of originalism. From the standpoint of political theory, originalism created the problem of the "dead hand," which is that past generations effectively rule over current majorities of the living. The Founders tried to anticipate this problem by permitting constitutional amendment, but their amendment procedure imposed excessive hurdles and stifled reform except in the most extreme cases. Also, left-leaning academic critics of originalism pointed out a long series of politically opportunistic decisions by conservative-originalist judges, who sometimes avoided the politically unpalatable implications of their own theory or squared desirable results with the theory only by means of implausible epicycles. A leading example was the conservative judges' opposition to campaign finance regulation on free-speech grounds: taken seriously, the original meaning of the free-speech clause of the First Amendment would be much narrower, and would easily permit such regulation to go forward.
Despite these ongoing problems, the conservative legal movement has been a spectacular success overall, judging by its own aims. It has managed to institutionalize itself in major law schools, despite the overwhelmingly leftward tilt of law school faculties. And it has become a leading mode of justification among the justices of the Supreme Court, both right and left. In the recent case of District of Columbia v. Heller, which identified an individual right to keep and bear arms under the Second Amendment, justices on all sides argued in originalist terms.
Distressed by the success of the conservative legal movement, liberal and progressive legal scholars, at odds on many other matters, have sought to create institutions that would mimic, and counter, the conservative success--most prominently the American Constitution Society, founded as an explicit counterweight to the Federalist Society. Until recently, however, there has been less attention to the conceptual or ideological side of the movement. If the conservative legal movement started with an outraged and deeply political reaction to the Warren and Burger Courts, the upheaval of the 1960s, and the Carter administration, it is nonetheless true that the conservative movement's theoretical ideas largely preceded their institutionalization. In the progressive legal movement, the pattern has been that the institutions come first and the ideas are secondary.
The Constitution in 2020 attempts to fill this gap. Its editors, Jack Balkin and Reva Siegel, start off with a call to arms. Conservatives have "stock[ed] the bench with movement jurists who will adopt positions favored by conservatives on key questions of constitutional law." Conservative jurisprudence, with its commitment to originalism, "simply disguises the values of a contemporary political movement as the framers' intentions." Conservatives show "blind deference to the past" and a "dogmatic obedience to the Founders' expectations" that "would infantilize the living." They proclaim that "in cases where decisions deviate from the substantive results that conservatives prefer, conservatives denounce judges as arrogant villains. In cases that announce decisions conservatives favor, conservatives depict judges as impersonal arbiters of a law of the distant past in which they exercise no judgment and no responsibility." The tension here--a jurisprudence that compels judges to give blind deference to the past could hardly allow them to implement a modern-day political agenda that bears only a passing relationship to eighteenth-century constitutional understandings--merely underscores originalism's success in sowing confusion among the left.
Having identified the monster, and expressed grudging respect for its political successes, Balkin and Siegel acknowledge that mere criticism cannot penetrate its hide. Progressives need their own movement jurisprudence. The editors, in the introduction and in their separate contributions, suggest several labels--"fidelity to the constitution," "democratic constitutionalism," "redemptive constitutionalism"--but the relationship among these is unclear, and the editors lay out only the vaguest themes. They say that redemptive constitutionalism reflects the notion that "we must work to restore past understandings and sometimes we must try to redeem constitutional guarantees that have not been met"--a vaporous formulation in tension with itself. The editors reject a return to the "glory days of the Warren Court," and they vaguely praise "dialogue" between courts and "political mobilizations." They insist only on the premise "that our understanding of our constitutional commitments evolves in history, that the nation has yet fully to meet many of these commitments, and that the aspiration to do so helps make this nation great." The contributors to the volume will flesh out the idea of the evolving Constitution.
The book's twenty-two contributors divide into two groups. The minimalists, led by Cass R. Sunstein, endorse an approach that conservatives used to call judicial restraint. Minimalists reject "broad, ambitious judicial rulings." Courts should advance doctrine through small steps. They should avoid striking down statutes as much as possible. They should respect precedent. They should avoid Warren Court-style judicial heroics--but, since Warren Court opinions have precedential value, they should not overturn them. Courts can avoid taking controversial positions on great constitutional questions by focusing on the facts of the case, waiting until the issue is squarely presented, deferring to legislative judgments, and even refraining from giving a ruling. Minimalists criticize District of Columbia v. Heller, the case that established Second Amendment gun rights, but they also criticize Roe v. Wade. Sunstein candidly admits that he is not sure whether minimalism is progressive or conservative. He argues that it is an appealing judicial philosophy that avoids excessive judicial interference with democratic politics.
Many other contributions have a minimalist flavor, though not all of the contributors in this group identify themselves as minimalists and none repeats Sunstein's criticism of Roe v. Wade. Robin West argues that progressives should attempt to persuade legislatures, not courts, to implement the progressive agenda. Larry Kramer says that progressives should develop local institutions for promoting their values. Bruce Ackerman repeats his proposals for a new campaign finance system, a national holiday that encourages national deliberation about policy, and a massive redistribution of wealth to guarantee all citizens an $80,000 "stake" in society.
These and other contributors are skeptical that courts can advance progressive values, so they emphasize practical politics or legislative cures. In Ackerman's words, "our right-wing judiciary will be in no rush to vindicate the privileges of citizenship against the economic forces threatening their effective exercise. In the run-up to 2020, the greatest legal contribution lies outside the courts." If courts do not endorse the progressive agenda, then inventing theories of constitutional adjudication that would advance progressive goals is an idle exercise. Mark Tushnet, one of the contributors here, has elsewhere made an institutional case for "taking the constitution away from the courts," pointing out that judicial review of statutes for constitutionality has produced morally objectionable outcomes as well as morally salutary ones.
In minimalism, then, we see the same tension as in originalism. For some, such as Sunstein and Tushnet, minimalism is a genuine institutional commitment, driven by a particular conception of the role of the judiciary in a democratic society or the long-run consequences of the institution of judicial review. Such minimalism has no political valence. For others, minimalism is a short-term tactic, to be dropped as soon as the Supreme Court returns to Democratic control. Sunstein reaches across the divide, asking conservatives to adopt a position based on a shared commitment to democratic politics and skepticism about judicial activism--but this position is constantly undermined by the other contributors to the volume, who imply that they are minimalists only as long as their party lacks judicial power.
The second group of contributors reject minimalism, but mostly agree that the Warren Court went too far in some undefined way. Although they concede, in a gesture to minimalism, that some kind of unspecified "dialogue" between courts and other actors is desirable, they are committed to a substantive constitutional vision that would compel courts to uphold progressive laws or strike down laws that are not progressive. But rather than giving us a theory, they give us a riot of labels--redemptive constitutionalism, legislative constitutionalism, popular constitutionalism, democratic constitutionalism, constitutional fidelity, the method of text and principle, equal liberty, progressive constitutionalism--and vague restatements of the idea that the Constitution evolves, yet somehow differs from public attitudes and legislative bargains, and thus remains somehow connected to the past.
This approach is most clearly reflected in Robert Post and Reva Siegel's chapter. They argue that we need a substantive "constitutional vision" rather than a mere theory of interpretation. Progressives need a vision--that is, a package of constitutional rights and rules--that will inspire Americans. This vision needs to be articulated in legal terms because of the power of law in our society. And theories of constitutional interpretation should be selected with this political program in mind. Rather than arguing, like Sunstein, that one should start with a general theory of constitutional interpretation which appeals also to values shared by conservatives, Post and Siegel work backward, arguing that progressives should "select from among the traditional modalities of interpretation those which are the best suited to give authoritative legal expression to their constitutional understandings," which--again--are resolutely "substantive." Post and Siegel unembarassedly suggest that progressives pick a theory of constitutional interpretation that advances their legal and political preferences, which are not clearly distinguished.
Other authors content themselves with piecemeal claims. Pamela Karlan wants the Court to expand the right to vote so as to give courts a greater warrant to restrict gerrymandering and other shenanigans. Robert Post advocates a modification of First Amendment speech doctrine so that courts can approve campaign finance regulation and strike down copyright laws that "diminish the capacity of persons to participate in the public sphere." William Marshall advocates a reinterpretation of the religion clauses that advances (largely unarticulated) progressive views about religious liberty. The right-wing judiciary is presumed to go along.
In the most theoretically ambitious contribution, Jack Balkin argues for what he calls the "method of text and principle." The main feature of this approach, which echoes the legal philosophy of Ronald Dworkin, is its emphasis on general "principles" in the Constitution (equal protection, freedom of speech) as opposed to specific rules and standards. A principle such as equal protection can have different meanings in the eighteenth century--when slaves and women clearly lay outside its scope--and the twenty-first century. Balkin tries to hoist the originalists on their own petard by claiming that the original principles of the Constitution imply different things at different times. When the Founders condemn "cruel and unusual punishment," they must be understood to condemn not only what they understood to be cruel in their own time, but whatever future generations might consider cruel.
This argument does not so much provide an alternative to Warren Court constitutionalism as offer a special kind of argument for it, one that boosts originalism to a higher level of generality in order to yield progressive results. So Balkin must make a gesture to democratic constitutionalism, and he does so by de-emphasizing courts. He argues that citizens, not judges, must be the source for most constitutional innovation. He also disparages the ability of judges to innovate. They are appointed by presidents, they face various institutional constraints--and so they will never veer far from public opinion. This, of course, undercuts the claim that Balkin's "method of text and principle" could make any difference for how judges behave. As for non-judicial interpretation of the Constitution, one wonders why citizens who do not antecedently agree with Balkin's political commitments would adopt his method of constitutional interpretation or any other method at odds with their political preferences.
Three other contributors--Vicki Jackson, Harold Koh, and Frank Michelman--up the ante by urging courts to use foreign and international law to interpret the Constitution. In several recent cases the Supreme Court has done just that, holding that the execution of mentally retarded people and people who committed capital crimes as juveniles violates the Eighth Amendment, in part because most countries do not permit executions of such people, and because some international instruments frown on such practices. The involvement of foreign courts provides the needed chastening of Warren Court hubris: American judges will work humbly arm in arm with foreign judges to improve our political order.
This approach might yet become the progressive successor to Warren Court-style "activism." But it has several problems. First, most countries are not in fact more liberal than the United States, and many are far less so. So which foreign law to use? Reliance on foreign and international law to achieve progressive ends would have to resort precisely to the sort of selective use of sources that critics of originalism impugn conservative judges for employing in domestic law. Koh agrees that American courts should not incorporate the law of Zimbabwe, but should engage in the "selective incorporation of the best practices of international and foreign law." Best, according to what standard? Koh's own academic work is an industrious picking and choosing of international and foreign law that protects the rights of women and minorities, as opposed to the countless illiberal foreign norms that curtail free speech, protect against "religious defamation," and promote an inquisitorial model of criminal procedure. Parochial to the core, Koh seems to think that whatever is not progressive according to American lights is not "best."
And there is another significant problem, a cultural problem, about the proposal that American courts rely upon foreign law. It is that Americans hate the idea of global constitutionalism. The idea is a godsend for conservative talk-show hosts. It dips deeply into two vast reservoirs of American populism: the fear that cosmopolitan elites will sell us out to foreigners, and the fear that judges will impose their policy preferences on democratically elected representatives.
So where are we left? Balkin and Siegel promise a distinctive approach to constitutional interpretation that relies on the notion of an evolving or living Constitution, and will promote a progressive agenda. It will avoid the Scylla of judicial restraint and the Charybdis of Warren Court constitutionalism. But as a group the contributors avoid neither hazard. The minimalists endorse judicial restraint. The non-minimalists offer various piecemeal or comprehensive constitutional visions with courts at the core. Some suggest greater deference to the legislature or public opinion, or a greater willingness to revisit precedent after public rejection. But these wrinkles have always been a part of the broad tent of Warren Court constitutionalism.
The idea of dialogue--a back-and-forth between the Court and political actors--offers more promise as a genuine third way. But the contributors fail to flesh out this concept. For all their cosmopolitanism, they ignore the constitutional debates in other countries where the use of this term in constitutional settings originated. Some countries, such as the United Kingdom, use a weak form of quasi-constitutional judicial review in which judges can declare statutes incompatible with higher legal obligations, but lack the power to actually override those statutes. In other countries, courts can strike down laws but governments can reinstate them. Some constitutions give legislatures the formal authority to override a judicial decision by reenacting the law that has been struck down, sometimes after additional legal formalities. Foreign constitutions are also usually easier to amend than is our own. In many cases, foreign governments can amend the constitution after a court interprets it in a way that the government disapproves of. Foreign commentators sometimes refer to these processes as dialogue, because of the back-and-forth between legislature and court.
But the experience in foreign countries offers little hope for progressives. Foreign courts develop constitutional norms, but legislatures have some ability to veto. When courts keep their rulings within the mainstream of public opinion, the legislatures will not veto. In such a model, judicial doctrine can be only as progressive (or as reactionary) as public opinion is. In any event, the American political system offers only the most limited opportunities for dialogue between courts and political institutions. Supreme Court interpretations of the Constitution cannot be overturned except by constitutional amendment--a nearly impossible procedure--or through the slow process of replacing justices after they retire, or through an occasional spasm of public outrage, which by its nature cannot realistically occur every time the courts depart from both law and public opinion to enforce the judges' idiosyncratic preferences. The upshot is that in the United States dialogue occurs, but only rarely.
And when dialogue does occur, the results are not necessarily progressive, as may be seen in a recent flap over the use of foreign and international law in judicial review. As mentioned above, the Court used this method in a handful of cases involving the death penalty and other issues; Congress got wind of the practice and protested. One legislator proposed a resolution opposing the practice generally, and the Military Commissions Act of 2006 prohibited the use of "foreign or international source[s] of law" as a basis for judicial decisions on the subject. In Senate confirmation hearings for Chief Justice Roberts and Justice Alito, senators pressed the nominees on this issue, and the nominees offered assurances the senators that they would have no truck with foreign-and international-law-influenced interpretation. Meanwhile, the liberal wing of the Court has, for the time being, reduced its citations to foreign and international law in constitutional cases, though some members continue to defend the practice in speeches.
This is probably not the sort of dialogue that the liberals in The Constitution in 2020 have in mind. Since legislators are not uniformly or even mostly progressive, not even after President Obama's rout of the Republican Party, dialogue offers few opportunities for progressive politics. Some of the contributors seem oblivious to the problem that dialogue can produce reactionary or retrograde outcomes. Victims of an updated version of the Whig theory of history, they implicitly equate all "change" with "progressive change, " overlooking that--as Justice Scalia has emphasized--change is liable to go backward as well as forward. The minimalist progressives, to their credit, are worried about this in the judicial setting, and fear that empowering the courts will harm the progressive cause on balance. A large number of Rehnquist Court and Roberts Court opinions--striking down a gun control law, affirmative action programs, campaign finance legislation, a violence-against-women law, and much else--provide ample cause for alarm.
The more sophisticated of the non-minimalist progressives in this book are aware of the downside of dialogue between progressive courts and a relatively conservative populace. This may explain why they eschew the foreign model of dialogue between courts and legislatures, and instead try to develop an American version that emphasizes dialogue between the courts and social movements, such as the civil rights movement on the left and the gun rights movement on the right. These movements have goals that are more extreme than those of public opinion as reflected in legislatures, but they can advance their agenda if they find a receptive audience in the Supreme Court. Decisions that go their way can stick as long as minority coalitions in the legislature can block a move back to the status quo. So the progressive agenda in legal theory boils down to this: wait for the eruption of a new left-wing social movement, and hope that enough Supreme Court justices sympathize with its aims.
Yet the contributors bewail the right-wing political movements that formed in reaction to Warren Court decisions. They do not praise them as a contribution to the type of dialogue that can provide the basis for a progressive jurisprudence. Indeed, their bCte noir--originalism--is for them the excrescence of a social movement in dialogue with the courts. So social movement dialogue offers no more certain hope for progressive politics than dialogue with legislatures, or indeed straightforward minimalism. This may explain why the contributors never develop this idea, but just wave it like a flag. The vaguely left-wing connotation of the word "dialogue" is the whole of their argument.
In this respect, and also more generally, The Constitution in 2020 displays an odd mix of sophistication and naivete, of brazen political scheming and political caution. Although some of this is doubtless due to latent disagreements among the book's multiple authors, there is a key tension at the heart of the book's enterprise. Common to nearly all the authors are two commitments--a commitment to using law to promote a progressive political agenda, and a commitment to public candor about the first commitment; but these are incompatible, at least in pragmatic terms.
In what used to be the standard legal-theory game, legal scholars would attempt to derive their theories from normative premises and factual beliefs that nearly everyone accepted. Originalists, for example, appealed to the idea of a separation of law from politics, the genius of the Founders, the commitment to democracy, and the institutional limitations of courts, including the tendencies of judges to be influenced by their political preferences. Other schools also appealed to democracy while de-emphasizing the genius of the Founders because of the fear of the dead hand. The representationreinforcement school associated with John Hart Ely, for example, argued that courts should ensure that everyone can participate in politics but should not impose substantive political outcomes. Those advocating judicial restraint or minimalism also appeal to democracy and the limits of the judiciary. Critics would accuse theorists of smuggling in their political values, but theorists would never admit to this, and seemed sincerely committed to finding a constitutional scheme to which all could agree.
The progressives in this book, with a handful of exceptions, do exactly the opposite: they try to reverse-engineer a constitutional methodology that would produce their preferred political outcomes. Even more oddly, they do not confine this discussion to a back room or a faculty lounge. They are open about the political motives of their thinking. They proudly announce their agenda. "We progressives," they say, over and over, need a methodology that does for progressivism what originalism (in their view) has done for conservatism: reliably cause the Supreme Court to implement progressive outcomes, or at least provide rationalizations for those outcomes.
The candor would be commendable if it were not also loopily self-defeating. Whatever you think of the motivations of Supreme Court justices, they never say that they decide cases in order to advance a political agenda. Yet the contributors to this volume are in effect asking them to do just that. By adopting democratic constitutionalism, redemptive constitutionalism, or any other method openly defended as a tactic for achieving a political agenda, the justices would be signaling their intention to use their position to advance political aims. For The Constitution in 2020, the abandonment of the ideal of judicial impartiality is too obvious to deny. No nostalgic dwelling on lost illusions here. But Supreme Court justices could hardly take this stance, whatever they may believe.
And so this book may be the first of its kind: it announces and terminates its research agenda in a single volume, strangling itself in the crib. Likewise, it is self-contradictory of the contributors, or at least the editors, to advocate a dialogic theory of constitutionalism and in the same breath to assume, to stipulate in advance, that the dialogue will or must produce progressive results. One of the pragmatic preconditions for genuine dialogue is a willingness on the part of sincere participants to change their commitments, and to follow the exchange of views wherever it leads. Otherwise dialogue is merely a tactic, all the more cunning for sounding so benign.
The conservative legal movement, despite its severe failings, at least adopts an internally consistent theory of judicial motivations and an internally consistent account of the relationship between politically oriented legal theorists and the judges who consume their output. The conservative legal academics who offer originalist arguments to conservative judges in effect provide those judges with theoretical tools to rationalize their policy preferences. But neither the academics nor the judges ever admit that this is what happens, perhaps because of norms against so admitting, or because of self-deception and cognitive biases that militate against self-awareness. Whatever the causes, it is an essential condition for the success of the conservative legal movement that this should be so. It must believe in the innocence of its reasons, or at least pretend to believe in them. The conservative political inflection of originalism is a truth that dare not speak its name, and it only succeeds because it is such.
We are left with a puzzle. The Constitution in 2020 is not only less than the sum of its parts, but also much less than the progressive legal movement requires. Why is this? The contributors to the volume are legal theorists of goodwill and intelligence, sincerely dedicated to the common good as they see it. But they have little that is new to contribute to legal theory, beyond vague talk of "justice" and "dialogue," and a few reflexive tics of the progressive legal academy, such as the repeated insistence that a "substantive" constitutional vision is both necessary and unavoidable--a kind of contentless meta-conviction that something or other simply must be believed. The clearest conviction that emerges from these pages is the belief that if originalism has worked for conservatives, there must be a left-wing doppelganger that will work for progressives--but this is a wish, not an idea.
The central problem for today's progressive legal movement is that successful institutions, manifestos, and political programs must draw their strength from theoretical innovation, and not the other way around. The basic concepts of the conservative legal movement, above all originalism, are in our view pernicious innovations, theoretically untenable and applied selectively in practice: about this we agree with the progressive critics. But the conservative legal movement did one big thing exactly the right way. Its theoretical ferment and innovation, while inspired by politics and funded by groups with political agendas, preceded the institutionalization of the movement and the development of its catechisms.
Judging by the evidence here, the progressives have not as yet found a coherent alternative to the conservatives' originalism. Wishing for alternatives and talking a great deal about a "living constitutionalism" and "justice" are not enough. What might be enough is a prolonged exile in the wilderness, chafing against an extreme conservative-originalist Court. A progressive Long March would generate the deeply felt political anger and sense of desperate isolation--as opposed to the cozy, mutually supportive, semi-serious progressive outrage so evident during the Bush years--that impelled the initial creative phase of the conservative legal movement. Progressive scholars might do well to hope for things to get worse, so as to get better. If Obama's victory is a triumph for progressive politics, it may portend disaster for progressive legal theory.
Eric A. Posner is Kirkland & Ellis Professor of Law at the University of Chicago. Adrian Vermeule is John H. Watson Professor of Law at Harvard Law School.