Constitutional Law Prof Blog
Debating the Progressive Constitution
By Steven Schwinn, August 2, 2011

Douglas Kendall (Constitutional Accountability Center) and Geoffrey Stone (Chicago) debated progressive visions of constitutional jurisprudence last month at Brookings.  (The link contains video of the event.)  The debate continued their pieces in the current issue of the journal Democracy and includes perspectives on both theories of interpretation and the politics of those theories–that is, which theory can best challenge the political right’s originalism and capture the confidence of the people.  This is a refreshing debate–one in a growing line now that does not center on either the faults or virtues (or both) of originalism, but rather seeks to move the entire frame of the debate over constitutional interpretation.

Stone (and William Marshall (UNC), his co-author on the Democracy pieces) argued where constitutional text is ambiguous, judges should apply the “values, concerns, and purposes” of the document to new problems:

[The Framers’] values, concerns, and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner.  They must be considered as the Framers themselves understood them–as a set of general principles and aspirations, rather than as a collection of specific and shortsighted “rules.”  To be true to the Framers’ Constitution, we must strive to implement faithfully the Framers’ often farsighted goals in an ever-changing society.  That is central to any theory of princpled constitutionalism.

Democracy, at 65.  How to do this?

Constitutional interpretation is not a mechanical enterprise.  It requires judges to exercise judgment.  It calls upon them to consider text, history, precedent, values, changing social, economic, technological, and cultural conditions, and the practical realities of the times.  It requires restraint, wisdom, empathy, intelligence, and courage.  Above all, it requires recognition of the judiciary’s unique strengths and weaknesses, a proper appreciation of the reasons for judicial review, and a respectful understanding of our nation’s most fundamental constitutional aspirations and how we hope to achieve them.

Democracy, at 66.

Kendall (and Jim Ryan (UVA), his co-author on the Democracy pieces) argued that Stone and Marshall “fall into the same traps that have gotten progressives into a hole in the first place,” including seeing the text as too ambiguous.  Seeing the text as ambiguous, they argue, lends itself as much to a conservative reading as to a progressive reading.  A better approach is New Textualism:

Constitutional adjudication often requires two steps–determining the meaning of the constitutional provision in question as precisely as possible, and then applying that meaning to the issue at hand.  That second step may entail following precedent, or it may require reliance on broader theories of adjudication summarized by Stone and Marhsall, like judicial restraint or political process theory.

What we are saying is that progressives should linger far longer on the first step, even in cases involving the Constitution’s most open-ended language, rather than sailing right past this step in the often mistaken belief that a close examination of the Constitution’s text and history will offer little of value.

Democracy, at 71.

Whatever else their disagreements, they agree on at least these points:  All agree that originalism, any variety, is a bankrupt theory; and they all agree that progressives need their own strong, persuasive theory of constitutional interpretation.