William Forbath to Progressives: Learn to Use Constitutional History

In a very important essay published this week in Politico’s “Arena,” constitutional historian William Forbath makes many of the same arguments that CAC has been making since its inception.

First, Forbath correctly observes that, in talking about our Constitution’s history, progressives have been losing the battle to conservatives who misleadingly lay claim to the document’s original meaning.  As Forbath puts it, “conservative judges use history to claim that when they strike down a law, they are merely applying the ‘original understanding’ or ‘intentions’ of the framers of the Constitution. This is bunk. But it… enables conservatives on and off the [Supreme] Court to claim that what liberal judges do is something different and illegitimate.”

To correct this, Forbath argues that progressives need to get better at invoking constitutional history when talking about the law.  And he bemoans the fact that high-profile liberal jurists have not widely articulated their own constitutional vision to match the efforts of conservatives.

Forbath highlights the important role that history can play in discussing judicial nominations.   Judges today, he writes, “must attend to the text the framers gave us, the general principles it enshrines, the Amendments Americans have added, and the meaning and range of applications generations of judges, lawmakers and citizens have poured into them. And judges must consult their own conscience and experience as they sift through these materials that history provides and decide how best to keep faith with the past.”  Liberals should embrace this approach, he says, rather than calling for judges who attempt to strictly adhere to the Framer’s 18th Century intentions, with no consideration for the amendments and treatment of the document in the 250 years since the Founding.

Finally, Forbath guides progressives on where to look within constitutional history.  He encourages us to consider “the bloodshed of the Civil War and the Civil War and Reconstruction Amendments that made the Constitution a charter of equal rights for all Americans, including the former slaves. It was the Republicans of the Reconstruction Era, the New Dealers, the Civil Rights Movement, and the twentieth-century Court who gradually enlarged Madison’s original conception of minority rights and majority tyranny to make it a safeguard for the poor and vulnerable.”   As Forbath eloquently summarizes, “the arc of constitutional history generally has bent toward a more inclusive and generous vision of rights-bearing membership in We, the People.”

We couldn’t have said this last sentence better.  We encourage readers to take a look at Forbath’s entire piece, as well as our work, which has sought to do exactly what Forbath suggests:  reveal and fulfill the progressive promise of the Constitution’s text and history.