Do liberals have a coherent theory about the Constitution? A few years ago, this would be the question hanging in the air at the end of a Supreme Court confirmation hearing. Conservatives had their claim to a theory – call it “originalism,” “textualism,” “judges should interpret the law, not make it,” or Chief Justice Roberts' “judge as umpire.” Liberals could call out the contradictions in these slogans, but it wasn't clear where they stood themselves. As Yale law professors Robert Post and Reva Siegel wrote in 2007, “progressives have grown confused and uncertain. They speak timidly of 'super-precedents' or minimalism, but they are unable to advance any robust theory of constitutional interpretation.” Few liberals were willing to defend the loose “living Constitution” theories of the Warren Court era, but nothing positive had taken its place.
That year Doug Kendall, who know runs the Constitutional Accountability Center here and is an occasional TAP contributor, put forward the idea of "progressive originalism,” an effort to reclaim the idea of originalism and use the text and history of the Constitution for liberal ends. Yale's Jack Balkin encouraged use of the term “constitutional fidelity,” and a book published this spring by the American Constitution Society, expanded on the idea, as an alternative to both the “mechanical” version of originalism represented by Roberts' “umpire” metaphor and the loose idea of the Constitution as an evolving set of principles. (There may be other critical documents in this line of thought; I'm no expert here.)
Although Judge Sonia Sotomayor hardly made this case herself, wisely resisting every effort to pin her down on broad theoreticals by insisting that she would have to consider the facts of a case and the interests at issue, the overall tone of the hearing represented the ascent of a broadly understood idea of progressive originalism or constitutional fidelity, and the complete crash of the conservative argument. Perhaps the best example came when Sen. Lindsey Graham pushed her on whether there was a “cookbook” that would help her determine whether Second Amendment rights were “fundamental,” and thus applied to the states:
Judge, that's why the Supreme Court matters. I do believe, at the end of the day, you're not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the 2nd Amendment, that you're going to have to rely upon your view of America, who we are, how far we've come and where we're going to go in our relationship to gun ownership.
“No cookbook,” indeed. But how does the conservative “originalist” claim survive that admission? At the same time, newer members of the committee, like Sen. Al Franken, gleefully revealed the obvious dishonesty of originalism in practice, activism of Roberts and Scalia. The second-longest-serving member of the committee who participated this week, Arlen Specter, sounded anachronistic by comparison, pressing Sotomayor on whether she saw abortion rights as protected by “super stare decisis,” the kind of makeshift argument one heard in, say, the Souter confirmation hearings almost two decades ago.
There was not only a future Supreme Court Justice in that room this week, and possibly a great one, there was also, at last, a workable progressive legal theory. And not much to counter it.
-- Mark Schmitt