Rule of Law

Making the Constitution Work for Liberals

The Constitutional Accountability Center recently celebrated its tenth anniversary as a force for invoking the Constitution’s “text, history and values” to produce progressive results. We missed its celebration that took place at the offices of Mayer Brown, but recently caught up with center president Elizabeth Wydra to discuss the center’s accomplishments and future.

First, some background: When I (Tony) first wrote about the center in 2008, the first sentence in the story was: “The United States Constitution: It’s not just for conservatives anymore.” I didn’t know it at the time, but Wydra said that line became the informal motto of the center. “It’s fair to say we live that credo every day, and work to spread that message not only in courtrooms, but also in legislatures, newspapers and television screens across America,” Wydra said.

The goal of founder Doug Kendall, who died in 2015, was to recapture the “constitutional high ground” from conservative groups like the Federalist Society and the Heritage Foundation that had been very successful at channeling the debate about constitutional principles in a conservative direction.

“There’s nobody out there systematically making the argument that the Constitution’s text and history are on the progressive side,” Kendall said in 2008. It’s now ten years and 112 Supreme Court briefs later for the center. It has weighed in on cases ranging from Wyeth v. Levine (drug regulation) and McDonald v. Chicago (Second Amendment) to Obergefell v. Hodges (same-sex marriage.)

Just this week, the center was a key part of the legal team representing Senate Democrats who challenged the legitimacy of acting U.S. attorney general Matthew Whitaker.

Some thoughts from Wydra about the center’s past and future:

➤➤ “What hasn’t changed, from the very beginning, is CAC’s commitment to being an influential voice in the Supreme Court’s incredibly important work. Some we won, others we lost.”

➤➤ “As CAC’s first chief counsel, I built our litigation approach through careful arguments rooted in the Constitution’s text, history, and values aimed at appealing to Justice Thomas as well as Justice Ginsburg.”

➤➤ “The challenge of a conservative Supreme Court and administration is a challenge CAC was born with—we were founded during the last year of George W. Bush’s presidency. CAC was made for this moment. As scholars of the whole Constitution, we at CAC know that our arc of constitutional progress is strong and that the people have pushed our national charter through some of its darkest periods.”

➤➤ “Now that our fellow progressives are facing a staunchly textualist and/or originalist conservative majority, we hope to convince our progressive friends to embrace the text, history, and values of the whole Constitution with enthusiasm. Not as some short-term political tactic—though polling does show our approach is more popular than others—but instead as a sincerely-held conviction that the Constitution is on our side in the most contentious battles that lay ahead. Because it is.”

The center’s bottom line as it begins its second decade, according to Wydra: “We’re accustomed to speaking with conservatives and libertarians on their own terms, whether on the bench or in the public square. We will continue to approach constitutional advocacy that way now that the Court counts Justices Gorsuch and Kavanaugh among its members, just as we have never counted out conservative justices in the last decade.”