INTRODUCTION: A BRIEF REVISIONIST HISTORY OF LIVING CONSTITUTIONALISM
It was 1924, and Princeton’s Edward Corwin had seen enough. Disciplines and their boundaries still being worked out, Corwin wondered in the American Political Science Review “whether it would not be a good thing if constitutional theory could be abolished” (Corwin Reference Corwin1924, 300). Tired of opposed claims about “the intention of the law-maker” vis-à-vis the scope of Congressional power, Corwin pointed out that “[c]onstitutional theories the most contradictory” both laid claim to “the real honest-to-goodness intentions of the framers” to justify “states’ rights” and “nationalistic” readings of the Constitution (ibid., 295–96, 301). This was an obtuse debate. The Constitution was necessarily “a living statute, to be interpreted in the light of living conditions” (ibid., 302). For Corwin, the Constitution’s Preamble was a good meta-principle, if not an express “grant of power,” that should be Americans’ guiding light (ibid., 301–02).
Corwin was inchoately articulating “living constitutionalism,” then largely the province of Progressive politicians, activists, and intellectuals. Indeed, living constitutionalism had formed the basis of their concerted attack on the received American constitutional tradition for two decades by the time Corwin expressed his frustration with “constitutional theory.” Influenced by American philosophical pragmatism and the knowledge they were quite literally constructing in the new research universities, capital-p Progressives’ living constitutionalism was, to them, more a description of empirical reality than what we now think of as a “theory” of constitutional interpretation (Ross Reference Ross1991; Kloppenberg Reference Kloppenberg1996). In its more polemical forms, living constitutionalism imagined the Constitution in name only, but once institutionalized in Franklin Roosevelt’s Departments of Justice, its more unruly tenets were domesticated by the New Dealers (Milkis Reference Milkis2009). The New Deal was famously pragmatic, even catch as catch can (Brinkley Reference Brinkley1995). Thus, while living constitutionalism remained lightly theorized during these years it served its political purpose: providing a flexible approach for an emerging liberal public law.
Academic constitutional lawyers, however, were unsure of how to proceed as the post-war era emerged. As historians and political scientists—the latter devising a quantitative approach they would call “judicial politics” (e.g., Pritchett Reference Pritchett1948)—ceded normative constitutional theorizing to the legal academy, liberal constitutional lawyers searched for an “objective” basis such that constitutional law was not reducible to politics but also capable of preserving the public law gains of the New Deal. An effort to cabin the strongest versions of legal realism and critique Warren Court liberals’ ostensibly sloppy opinions, scholars at (primarily) Harvard and Columbia law schools developed the “legal process” school in the late 1950s and into the 1960s (Kalman Reference Kalman1996, 22–42).Footnote 1 But the legal process school—more of an approach to, rather than a theory of, constitutional interpretation—was ultimately a political and theoretical waystation.
Three decades after the New Deal, left-liberal legal academics finally turned to providing a theoretical basis for the Warren Court’s contemporaneous remaking of constitutional politics. “There is a poverty of theory which will explain and justify the ‘living’ Constitution,” one accurately explained (Miller Reference Miller1963, 912). The Warren Court proved hard to keep up with. During the 1960s height of the Warren Court, living constitutionalists praised its major decisions, but the lack of a forward-looking blueprint left them open to creditable conservative charges that this theorizing was simply academic cover for politically desirable results.
With the advent of the Burger Court (1969–1986), liberal lawyers turned outside the legal academy for theoretical support to preserve the Warren Court’s constitutional politics and defend, especially, Roe v. Wade. Liberal constitutional theory in the late 1960s and 1970s invoked moral philosophy—epitomized by John Rawls’s A Theory of Justice (1971) and Ronald Dworkin’s scholarship—to construct arguments for welfare rights, abortion, and the whole of the then extant left-liberal political project (e.g., Michelman Reference Michelman1973). This body of scholarship openly embraced nontextual rights and ethereal conceptions of doing “justice.” To conservatives and some on the Left, this had the feel of a thin, natural law-inflected constitutional theory (e.g., Tushnet Reference Tushnet1979). Yet, to mainstream legal liberals it seemed obvious that there was an “unwritten constitution” that necessarily evolved to support their notions of left-liberal constitutionalism (e.g., Sandalow Reference Sandalow1977).
This was a blueprint for a Court that never manifested. In the early and mid-1980s, though, proponents of legal liberalism were still self-confident. This confidence manifested by welcoming in constitutional and movement conservatives’ law and economics, the Federalist Society, and a nascent “originalism,” while keeping at arms’ length those to its left: Critical Legal Studies (CLS) (Baumgardner Reference Baumgardner2020). To legal liberals, CLS’s project threatened the very foundations of (constitutional) law as they conceived it (e.g., Bobbitt Reference Bobbitt1989). If (constitutional) law was mere politics by another name, both the status and intellectual worth of what had become the legal academy’s most prestigious product—constitutional theory—seemed much less valuable.
But as President Ronald Reagan gave way to President George H. W. Bush, this confidence dissipated. Some of the more modish turned from Rawls to postmodern theorists such as Derrida, Lyotard, and Jameson for answers, but many more made it their mission to critique an increasingly politically powerful conservative “originalism” (e.g., Powell Reference Powell1987). Legal liberalism was thrown fully on its heels by Rehnquist Court defenses of states’ rights and sovereignty in the 1990s and Bush v. Gore in 2000.Footnote 2 Liberal legal elites now responded by rebranding living constitutionalism (e.g., “constitutional fidelity”) during the George W. Bush and Barack Obama presidencies (and aping the institutions of the conservative legal movement (Teles Reference Teles2008)). But because constitutional theory never strays far from the Supreme Court’s constitutional politics these projects did not gain traction.
One constant, however, of the past century is that legal liberals have not questioned their background assumption—a Progressive-inspired living constitutionalism with an ill-defined but optimistic telos of “progress.” Indeed, insofar as living constitutionalism has a “useable past,” one needs to turn back to Corwin’s day when Progressives argued that great nationalist judicial “statesmen,” like Chief Justice John Marshall, and President Abraham Lincoln had interpreted the Constitution as a “flexible” political instrument (e.g., Goodnow Reference Goodnow1911). Even now, legal liberals appear content to tweak, to finetune, to imagine they are in a “dialogue” with the Supreme Court: “Judges are imperfect, but they are better suited than others to view rights conflicts from a distance, to investigate the truth, and to resolve the controversies respectfully, without fear or favor” (Greene Reference Greene2018, 132). In contrast, and consonant with a revivified democratic socialism in electoral politics, those to legal liberals’ left have taken head on the pathologies of our current constitutional politics and theory. The critical constitutionalism they have (and are) developing is a powerful broadside on contemporaneous American constitutionalism undergirded by the social sciences, history, and critical theory.
This essay considers three books by legal liberals and a book and an important article by progressive constitutional scholars as exemplifying the current state of the debate.Footnote 3 The argument here is that legal liberals have misapprehended the development of constitutional politics since the Progressives and the uses (and limitations) of constitutional theory. As developed throughout this essay, for primarily ideological and professional reasons, constitutional theorizing is effectively in the same place Corwin disclaimed nearly a century ago. Professionally, academic constitutional lawyers have a deep emotional and professional attachment to the Court; they cannot seem to look away (see Bonica and Sen Reference Bonica and Sen2021).Footnote 4 Ideologically, and intertwined with its unique professional space vis-à-vis a formal governing institution (the Supreme Court), constitutional theory has never been able to escape being, at bottom, elaborate justifications or provocations for preferred political results. It has been baked into the very nature of this scholarly enterprise.
The essay proceeds as follows. I explore legal liberalism via Geoffrey Stone and David Strauss’s Democracy and Equality: The Enduring Constitutional Vision of the Warren Court, Erwin Chemerinsky’s We the People: A Progressive Reading of the Constitution for the Twenty-First Century, and Jack Balkin’s The Cycles of Constitutional Time. Turning to archival and primary source evidence, I then argue for an alternative interpretation of the political and intellectual history of legal liberalism. This updated understanding in hand, the essay engages in a critical if friendly delineation of Mark Tushnet’s Taking Back the Courts and David Pozen and Adam Samaha’s article “Anti-Modalities.” These progressive scholars have offered a serious critique of American constitutionalism—what I call “critical constitutionalism”—and put on offer a new research agenda for constitutional theory.
The Conclusion takes stock. The political history of living constitutionalism, the current state of constitutional law, and today’s progressive critique have left legal liberalism at a pivot point. Rather than repeat the mistakes of the 1980s (on which more below), I suggest that legal liberals acknowledge that most conservative legal elites have shown their cards during the Trump and post-Trump era (Saldin and Teles Reference Saldin and Teles2020), extricate themselves from originalist cogitations and “debates” hosted by the Federalist Society, and begin a proactive project: to think anew about what (legal) liberalism has to offer American constitutionalism.
LEGAL LIBERALISM AT THE DAWN OF THE 2020s
Chief Justice Earl Warren retired in 1969. But the Warren Court still looms large in the legal liberal imagination. Liberal scholars now echo beleaguered conservatives who contemporaneously cried foul at “the Warren Revolution” (Bozell Reference Bozell1966). In 2012, one Stanford law professor used the prestigious Harvard Law Review Foreword to praise the Warren Court’s “revolution” in juxtaposition with the Roberts Court’s frustrating “counterrevolution”—“Democracy and Disdain” was the comparison (Karlan Reference Karlan2012). This is the theme adopted by University of Chicago law professors Geoffrey Stone and David Strauss’s book on the Warren Court. Stone and Strauss contend that assessments of the Warren Court from conservatives, moderates, even liberals are misguided: “All [their] criticisms are mistaken,” these scholars insist (Stone and Strauss 2020, 2). Insofar as the Warren Court can be subjected to any sustained criticism, it must flow from the occasions when the justices were “too cautious” (ibid., 10). Conservatives have succeeded in painting the Warren Court’s greatest decision as “lawless” using the “rhetorical garb” of originalism (ibid., 2, 8). But the Warren Court’s decisions “were principled, lawful, and consistent with the spirit and fundamental values of our Constitution” (ibid., 3).
To that end, Stone and Strauss delineate accessible, Supreme Court-centric summaries of major Warren Court decisions regarding race (Brown v. Board of Education (1954), Loving v. Virginia (1967)); one person, one vote (Reynolds v. Sims (1964)); the rights of criminal defendants (Mapp v. Ohio (1961), Gideon v. Wainwright (1963), Miranda v. Arizona (1966), and Katz v. United States (1967)); reproductive rights (Griswold v. Connecticut (1965)); welfare rights (Shapiro v. Thompson (1969)); and First Amendment free speech and religious rights (Engel v. Vitale (1962), New York Times v. Sullivan (1964), and Brandenburg v. Ohio (1969)).
These, and many more Warren Court era decisions (ibid., 159), reflect the best of American constitutional law—a Supreme Court willing to fight for “the most vulnerable” and reinforce “the most central tenets of our democracy” (ibid., 158). More than that, Stone and Strauss ask the reader to engage a counterfactual—“imagine a counter-reality” (ibid., 160)—where Hubert Humphrey prevailed over Richard Nixon in 1968 (with George Wallace garnering over 13 percent of the vote, Nixon received 43.4 percent to Humphrey’s 42.7). Nixon of course appointed four justices—Burger, Blackmun, Rehnquist, and Powell—who halted the Supreme Court’s consistent left-liberalism. If Humphrey had appointed four liberals, Stone and Strauss envision that equality in public school financing would have been a constitutional right (San Antonio Independent School District v. Rodriguez (1973)); school busing might have significantly reduced school segregation (Milliken v. Bradley (1974)); and, among other missed opportunities during the Burger Court years, affirmative action would have been placed on a more durable constitutional footing (ibid., 160–68).
Erwin Chemerinsky is also disturbed by the Court’s conservatism over the past forty-plus years. But wishing for a return of the Warren Court is not enough: “progressives have been wedded for too long to the Warren Court’s vision and not thought enough beyond it” (Chemerinsky 2018, 25). Liberals—Chemerinsky prefers “progressive(s)”—need to respond “by developing a progressive vision for the Constitution”—“[a] new vision is long overdue” (ibid., 14).
Chemerinsky, too, is focused on constitutional interpretation and the courts. “How should progressives interpret this majestic but flawed document?,” he asks (ibid., 26). In addition to rejecting conservatives’ originalism—“the Constitution is and always has been regarded as a living document” (ibid., 39)—Chemerinsky, again echoing Corwin, wants the textual hook to be the Constitution’s Preamble. “The process of interpreting the Constitution,” Chemerinsky insists, “always involves beginning with document’s text” (ibid., 49). This propitious text reads:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Preamble, however, does not address perhaps the central constitutional politics debate since Brown: the nature of constitutional equality. Chemerinsky turns to the Fourteenth Amendment’s equal protection clause to add this “core value[]” to those of the preamble (“democratic government, effective governance, establishing justice, securing liberty”) (ibid., 74–81).
The toolkit set, Chemerinsky turns to a whirlwind tour of a Preamble-inspired reading of the Constitution in 2020. To ensure “democratic government,” the Court should declare the Electoral College unconstitutional or “at the very least, the courts should declare winner-take-all—provided by state law and not by the Constitution—unconstitutional” (ibid., 87–89). Partisan gerrymandering must go (ibid., 90–97) as with racial discrimination in voting—Shelby County v. Holder (2013) is the target here (ibid., 97–105). In order to “provide effective governance,” the Rehnquist and Roberts courts’ state rights’ and sovereignty decisions, and the 2012 Affordable Care Act case, must be repudiated (ibid., 106–25), along with the Unitary Executive Theory (ibid., 125–35). To “establish justice,” police misconduct as protected by the qualified immunity doctrine should be reformed (ibid., 136–46), indigent criminal defense protections strengthened (ibid., 146–58), courts must guard against propping up mass incarceration and should also declare the death penalty unconstitutional (ibid., 160–64).
The Preamble also “secures liberty.” Chemerinsky “predict[s] that two aspects of liberty will be especially important in the years ahead: privacy and religious freedom” (ibid., 165). In addition to a right of “informational privacy” (ibid., 178), reproductive rights must be secure (ibid., 180–87). Religious freedom is best protected by “a separation of church and state” (ibid., 188) and the Court should not allow pretextual discrimination (such as in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)) to infringe on minority rights (ibid., 198–99). Finally, to “achieve equality,” disparate impact should be the constitutional standard in race discrimination cases rather than requiring the claimant to prove intent (ibid., 202–13). Affirmative action programs must be held constitutional and “a right to minimum entitlements from the government” should be constitutionalized (ibid., 213–30). Even if this collectively seems like a castle in the air, Chemerinsky is undeterred and believes in the inevitably of progress. “I deeply believe,” he writes in conclusion, “that what I have argued for can and will happen someday. History has been kind to progressives” (ibid., 233).
Jack Balkin is also optimistic—but not about renewing the Warren Court’s jurisprudence or constitutional reform though the courts. Leveraging political scientist Stephen Skowronek’s theory of political time, Karen Orren and Skowronek’s concept of “intercurrence,” and political scientists’ “regime theory,” Balkin argues that three recurrent “cycles” of American politics converged during Donald Trump’s presidency: political regimes, political polarization, and constitutional “rot.” Together, these three cycles create what Balkin calls “constitutional time.” Balkin’s central argument “is that our Second Gilded Age is likely to give way to a Second Progressive Era” because of Trump’s presidency (Balkin 2020, 11). On this account, Trump was presiding over an exhausted political regime and a new “political regime” was to (or did) emerge in November 2020—we should know now or in “about five to ten years” (ibid., 8, 11). This regime was to (or will) replace the Reagan regime over which Trump saw through to its conclusion. Thus, Balkin’s optimism.
Balkin provides readers much to chew on. But his treatment of the politics of constitutional theory since the Progressive era is most salient here. His argument is that as a new political regime achieves electoral power and is faced with a Supreme Court controlled by justices from the displaced regime—for example, the Court FDR faced—it will advocate for the elected branches’ views of constitutionalism to predominate. That is, the Court’s regnant notions of constitutionality will be harshly criticized by political actors in the new regime who have their own ideas about what is (is not) constitutional. As the regime appoints judges and gains control of the courts, political actors, sympathetic academics, and elite lawyers will make the case for more robust constitutional doctrine and muscular judicial review. Then, as the regime loses electoral power it again returns to arguing for judicial restraint as it finds itself the out-party—the cycle is complete (ibid., 99–111).
Concretizing this, on Balkin’s reading, “the early version of living constitutionalism [proffered by Progressives] was a theory of judicial restraint” (ibid., 99). Progressives, in other words, devised living constitutionalism to “criticize[] decisions of the Lochner-era Supreme Court that limited federal regulatory power and protected freedom of contract from economic regulation” (ibid.). For Balkin, the “early version of living constitutionalism” was not only the Progressives’ attacks on the courts, but is also exemplified by FDR’s famous criticism of the Court as implementing a “horse-and-buggy” Constitution and standing in the way of the New Deal (ibid., 99–100). Put differently, for Balkin both the Progressives’ attack on Lochner and FDR’s battle with the New Deal Court are instantiations of judicial restraint.
Once the Court was stocked by FDR and Truman, however, there were internal fissures regarding the direction of living constitutionalism. On Balkin’s understanding, “mid-regime legal intellectuals” like “liberal legal process scholars” and Justice Felix Frankfurter had a crisis of confidence (ibid., 100–02). The extent to which civil rights and civil liberties should be protected by the courts, and the especially thorny problem of race discrimination, split the “regime’s” intellectual and judicial legal elites into those who wanted a full-throated judicial supremacy and those true to living constitutionalism’s ostensibly judicial restraint roots (ibid.). “By the 1960s and 1970s,” Balkin argues, “the concept of a living constitution had mutated from a Progressive-era critique of how the Lochner Court had engaged in judicial review to a liberal justification of judicial review to protect important rights and liberties” (ibid., 101, emphasis in original). Today, liberals have cycled back to their original starting point: “We have come full circle: the early 2000s are the early 1900s all over again, and one might well forget that the Warren Court happened in the middle” (ibid., 108).
Each of these scholars have shaped the content and course of liberal constitutionalism over the past forty-plus years. Stone served as a clerk to Justice Brennan and helped chart the course of, notably, liberal theories of free speech. Strauss wrote what is perhaps the most eloquent normative defense of living constitutionalism of the past generation (Strauss Reference Strauss2010). Through his treatise, law review articles, and bar review classes, Chemerinsky helped teach the last two generations of law students constitutional law. Balkin has been an important participant in each of the internal left-liberal debates in the legal academy since the 1980s and developed a theory of liberal originalism—living originalism—in the George W. Bush era.
But beyond broad programmatic agreement on a liberal constitutional vision, there is little agreement on how to achieve this goal other than the vague telos of history bending, or cycling, toward “progress,” however caveated. Chemerinsky is persuasive that liberals need to think anew about the content of their project rather than resuscitating the Warren Court or engaging in “debates” about originalism. Balkin in turn is persuasive that the neither the courts nor simply a new “interpretation” of the Constitution is the most plausible path to a “Second Progressive Era” (Balkin 2020, 171).
But it is not clear that the optimism in these accounts is called for. We have not reached the trough of political polarization in American politics. Economic elites are realigning in unique ways (Broockman et al. Reference Broockman, Ferenstein and Malhotra2019). And as “the axis of [economic] conflict is increasingly rooted in the uneven geographic distribution of economic activity and divergent cultural norms,” capital and business groups are polarizing into “liberal” and “conservative” camps (Teles n.d.). Indeed, the reaction of (especially) large, cosmopolitan-oriented corporations to the Insurrection of January 6, 2021 demonstrates this phenomenon. This will inevitably affect a potential “Second Progressive Era” in ways that do not map neatly onto the first.Footnote 5
Moreover, despite many predictions that we were watching Trump preside over an exhausted regime, secular time may have slipped past cyclical “constitutional time.” Along with the Constitution’s institutional thumb on stasis, as cautioned not long ago, the “progressive thickening of the institutional universe” (Skowronek Reference Skowronek1997, 30), and the accompanying “policy complexity” (Teles Reference Teles2013), has made large-scale structural and institutional reforms increasingly difficult to pull off. Whether or not the state is “weak,” it is deep (Skowronek, Dearborn, and King Reference Skowronek, Dearborn and King2021).
In short, reviving again the canon of legal liberalism or expecting a new regime to materialize on time does not seem up to the challenge of the political moment. Contemporary legal liberalism has few compelling answers to meet the building political stress on our (constitutional) politics (Skowronek and Orren Reference Skowronek and Orren2020). This does not mean Progressive, New Deal, and Great Society constitutionalism has nothing to teach us. Like any broad-based ideological movement, they got some things right and misapprehended others. To better understand what is useful, and not, about these constitutionalisms, though, we need to reorient the study away from ahistorical notions of a “Lochner regime” or “era,” and “judicial restraint”—the Progressives would have been puzzled by these understandings—and view constitutional politics on their terms (Skinner Reference Skinner2002). The constitutional ideology Progressives’ created, living constitutionalism, was a powerful idea, indeed such that it struck many as an obvious truth. It is worth better understanding how that came to be.
CREATIVE DESTRUCTION
In 1912, former Republican Indiana Senator-turned-Progressive insurgent Albert Beveridge gave the keynote address to the Progressive Party’s national convention. “The Progressive party,” he declared, “believes that the constitution is a living thing, growing with the people’s growth, strengthening with the people’s strength, aiding the people in their struggle for life, liberty and the pursuit of happiness, permitting the people to meet all their needs as conditions change” (Milkis Reference Milkis2009, 186).
The Progressives’ constitutionalism was a sustained assault on the received American constitutional tradition (ibid.). These new ideas worked to make their developing ideology, one that would set forth the broad contours of modern liberalism, make constitutional “sense” (Skowronek et al. Reference Skowronek, Engel and Ackerman2016; Noel Reference Noel2013). Modern day conservatives and libertarians are right to perceive the Progressives as their “mortal enemy” (Teles Reference Teles, Skowronek, Engel and Ackerman2016). Progressives, though, would have been puzzled by latter-day scholarly claims of a “Lochner era” or “Lochner regime.” Their constitutionalism did not form in reaction to specific Supreme Court decisions such as Lochner v. New York (1905). While Lochner and a New York state case, Ives v. South Buffalo Railroad Company (1911), were often damned in the runup to the 1912 presidential election and at times during the 1910s, the overall, sustained Progressive attack was more fundamental.Footnote 6
Taking stock in 1924, a scholar writing in American Political Science Review noted that the Progressives did not criticize “single [judicial] decisions,” but “attack[ed] instead the entire system” (Monroe Reference Monroe1924, 748). For Progressive political scientist Frank Goodnow, the problem was “our practically unamendable federal constitution” (Goodnow Reference Goodnow1911, 332). Herbert Croly’s influential Progressive Democracy repeatedly attacked “the undemocratic Constitution” and demanded that the Constitution be “alterable at the demand and according to the dictates of a preponderant prevailing public opinion” (Croly Reference Croly1914, 61, 231). The Constitution, having “bound us together during a period of political adolescence,” had outlived its usefulness.Footnote 7 Some went further: the Constitution was born in unredeemable undemocratic sin: “we are trying to make an undemocratic Constitution the vehicle of democratic rule” (Smith Reference Smith1907, 31). Flipping the received American constitutional tradition on its head, a Progressive periodical argued: “The Constitution did not create the Nation, the Nation created the Constitution” (Outlook 1908).
Part of the confusion, then, over Progressive constitutionalism stems from definitional imprecision as to who the capital-p Progressives were; partly from the Supreme Court-centric nature of much of constitutional law scholarship; and partly from the inherent normativity of constitutional theorizing in law schools. Legal scholars tend to roam over the period from 1890 (sometimes earlier) to 1932 and deem the actor as “Progressive” because it occurred during the “Progressive Era.” Following Eldon Eisenach (Reference Eisenach1994) and Milkis (Reference Milkis2009), the focus here is on those political actors who defined themselves as Progressives—who they believed was and was not a (capital-p) Progressive, and how this informed their politics.Footnote 8
Central to better understanding the construction of their ideology is the Progressives’ house organ: The New Republic. Founded in the wake of 1914 midterm elections when “the apparently reactionary revulsion of popular opinion” resulted in significant GOP gains in the House of Representatives,Footnote 9 this group of ideological entrepreneurs, along with their fellow-travelers, defined the substance of Progressivism and, equally important, who failed their ideological test (Noel Reference Noel2013; Link Reference Link1954, 289). Saliently, Progressives viewed President Wilson’s New Freedom as cut-rate Progressivism (Eisenach Reference Eisenach1994, 7). In the third issue of TNR, Croly read Wilson out of Progressivism. Wilson “had utterly misconceived the meaning and the task of American progressivism.”Footnote 10 In short, like any other political project, Progressivism cannot be defined by reference to a platonic set of political principles or a diffuse “era”; we should let the historical actors speak for themselves (Skinner Reference Skinner2002).
One such actor was the “nonpartisan” though sympathetic Benjamin Parke DeWitt. In 1915, he set out to define Progressivism vis-à-vis the Republican and Democratic parties, socialism, communism, and the Prohibition Party. Distilling the Progressive movement’s policy desires into three “tendencies,” DeWitt argued that Progressivism meant: the destruction of political parties, majoritarian political institutions at all levels of government, and an unshackling of state and federal government power to “relieve social and economic distress” (DeWitt Reference DeWitt1915, 3–5). More concretely, the Progressive Party’s 1912 platform called for majoritarian amendment processes for state and federal constitutions, women’s suffrage, banning child labor and campaign contributions, lobbying reform, restricting the power of state courts to declare laws unconstitutional, minimum wage laws, and, among much else, establishing a Department of Labor (Progressive Party Platform 1912). This would make the “the people” the “masters of their Constitutions,” the Progressives promised (ibid.).
The “people,” a “potentially democratic mass,” was the coalitional vision of Progressive elites, one that foreshadowed the New Deal coalition:
[A] prosperous Montana farmer, a Baltimore grocer, a Maine lumberjack, a San Francisco bricklayer, an Atlanta cotton factor, a Schenectady drill-hand, a saving Polish miner in Wilkes-Barre, a Negro lawyer in Philadelphia, a Jewish peddler in San Antonio, and an Irish or German saloon keeper in New York. This composite, with thousands of subtypes, is the American common people, the fount of the confused American public opinion, the potentially directive force of American life. (Weyl Reference Weyl1912, 239).
So, to achieve their ambitious political program with this potential majority coalition, the Progressives repeatedly emphasized an understanding of the Constitution motivated by “general principles” and thus “living,” “elastic,” or “flexible” enough such that it could not stand in the way of their policy goals (out of many examples, see Amidon Reference Amidon1907; Bowman Reference Bowman1910, 34; Goodnow Reference Goodnow1911, 114–16; Vrooman Reference Vrooman1911, 253; Croly Reference Croly1914, 137; Cardozo 2009 [Reference Cardozo1921], 8). While this living constitutionalism had deep roots in nineteenth-century evangelical thinking (Compton Reference Compton2014), the Progressives were too busy constructing research universities, modern journalism, and the state and federal administrative states to notice the historical continuity (Skowronek Reference Skowronek1982; Ross Reference Ross1991; Eisenach Reference Eisenach1994). Political and philosophical “pragmatism” was their touchstone (Kloppenberg Reference Kloppenberg1996) and emphasizing the state’s inability to satisfactorily respond to the “actual” or “changing” “social and economic conditions” was the near constant refrain (e.g., Goodnow Reference Goodnow1911; Croly Reference Croly1914; Cohen Reference Cohen1915).
Starting from the premise that judges were engaged in an essentially legislative activity, Progressives argued that the resulting constitutional politics should be analyzed as such (Smith Reference Smith1907, 106). “Our constitutional law is losing what legal character it may have once had,” Goodnow argued, and “the Supreme Court of the United States has really become a political body of the supremest importance” (1911, 16). The Progressives judged this institution not up to the public policy task. A budding legal philosopher argued in 1915: “To make the law fit the complicated facts of modern life requires considerable expert knowledge. Judges as a rule are not experts in every technical matter that comes before them” (Cohen Reference Cohen1915, 32). Others were harsher still. “If judges were experts in all the complex social questions on which they have to pass,” TNR’s masthead argued in 1915, the judiciary “might conceivably be a useful institution.”Footnote 11
After moderating in the 1910s—to the Progressives’ delightFootnote 12—the Supreme Court took a hard right turn under Chief Justice Taft in the 1920s. Now, there was “no problem in the institutional life of the country” that needed more “fundamental scrutiny” than the Supreme Court.Footnote 13 The Court’s blockage of child labor regulation and its continued defense of states’ rights was particularly galling to Progressives: “The Bourbons have come out into the open with the anti-constitutional doctrine that the Constitution must be left intact as it stands.”Footnote 14 While Prohibition spurred the debate over states’ rights and cleaved the Democratic party (Craig Reference Craig1994), the Progressives focused on how the Court used states’ rights to block their policy goals. Frustrated that “the old states’ rights theory of sovereignty” had come roaring back in the 1920s (they had also thought this defeatedFootnote 15), TNR again and again attacked reliance on this conception of the Constitution. Not by chance, then, did the Progressives increasingly see that the South was not and perhaps could not be “progressive.” Because Southern Democrats were Republicans “with a different set of local interests and prejudices,”Footnote 16 if anyone believed there existed “a Southern progressivism which can capture control of the Democratic party,” they were “indulging in a beautiful dream for which there is no foundation in fact.”Footnote 17 Thus, it was at the Progressives’ behest that the parties’ secular realignment first got its start (see Rosenfeld Reference Rosenfeld2018).
What made living constitutionalism powerful, then, went far beyond occasional dissenting opinions by Justices Holmes and Brandeis or Roscoe Pound’s cries for a “sociological jurisprudence.” Rather, Progressives saw that a coalition could coalesce around a combined assault on, and thorough reimagining of, constitutional possibilities such that it could not prevent accomplishing their policy goals or the rapid growth of the administrative state (which they would staff and dispense what they claimed was apolitical expertise).Footnote 18 First, though, these ideas had to embed in formal governing institutions and make new claims for institutional authority (Dearborn Reference Dearborn2021; TerBeek Reference TerBeek2021).
Domesticating Living Constitutionalism in the Law Schools and Roosevelt Administration
In 1927, Columbia law professor Howard Lee McBain set out to document recent and more distant American constitutional development. Situating his scholarship as one that rejected “reactionary” forces and those “liberals”—Progressives began claiming the label after World War I—who were arguing for a wholesale constitutional revision, McBain’s The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law thought it by now obvious that “a living constitution,” which American had, “cannot remain static” (1927, 11, 275–77). Another political scientist insisted that Americans had an “unwritten constitution” as well as a written one: “It has made the government of the United States a different affair from that which the framers of the written Constitution intended it to be” (Munro Reference Munro1930, 1). Frankfurter, too, insisted that “the Constitution is not a dead document. It is, perhaps, the liveliest of our political traditions” (Frankfurter Reference Frankfurter1930, 61). In short, living constitutionalism had achieved enough intellectual dominance that it was elite legal academics’ common sense.
Some mistakenly point to McBain (or Edward Corwin) as “populariz[ing]” living constitutionalism for the academic and jurisprudential communities (e.g., Solum Reference Solum2019, 1256). What these academics were doing, however, was repackaging the Progressives’ political claims about the Constitution and turning them into constitutional “theory.” Many of these liberal academics would migrate to FDR’s executive branch and start writing these political ideas into law (Milkis Reference Milkis2009). Thus, it is no surprise that New Dealers’ constitutional politics sounded in the Progressives’ living constitutionalism. Footnote 19
This was an optimistic vision, one that implicitly saw linear progress, but with a telos that was never quite nailed down. “The law is not dead. The law is not static. It is a living, growing, vital thing,” the liberal Democrat Homer Cummings would routinely claim in early 1930s. Even before he became FDR’s first attorney general (1933–1939), Cummings was out on the campaign hustings on behalf of living constitutionalism. Sounding much like the Progressives, Cummings reminded his audience that the law should be “the servant of human need.” Footnote 20
Now Attorney General Cummings, he worked to evangelize living constitutionalism to legal elites. In a widely circulated speech (“Modern Tendencies and the Law”) delivered to the American Bar Association in 1933, Cummings chastised the largely conservative bar. They must accept that “the law is not a mere body of precedents. I visualize it as a living, vital, growing thing, fashioned for service and constantly being refashioned for further service.”Footnote 21 In an address at the University of Virginia titled “Liberty Under Law,” Cummings preached: “The letter of the law, even the text of any written Constitution, is dead unless it conforms to the needs of living men.” In fact, “We are even coming to regard private property itself in new ways. We think of it, shall I say, not purely as a right of absolute individual ownership but as impressed with something of both a moral and a social trust.”Footnote 22 And in another speech titled, “Liberty Under Administration,” Cummings defended the burgeoning “nonpolitical” administrative state. Dismissing constitutional separation of powers as “too much of a constitutional fetish,” FDR’s attorney general argued that a strong federal bureaucracy was “the only nonpolitical medium through which trained men can be brought into the public service.”Footnote 23
This body of thought made the first generation of constitutional conservatives, especially those at the Liberty League, anxious (Rudolph Reference Rudolph1950; Wolfskill Reference Wolfskill1962). But legal liberalism was ascendant. Decades of intellectual and institutional work by Progressives had resulted in control not only over the New Deal but many elite law schools—and thus the scholarship produced in elite law reviews. Many of these scholars disdained the idea of interpreting the Constitution by reference to the authorial “intent.” It was rejected as “impossible” by Yale’s Walter Nelles (Nelles Reference Nelles1934, 878). The preeminent public law scholar of his generation mocked the intent framework (usually offered at a high level of generality) in the American Political Science Review as an exercise in “clairvoyance into the intentions of men long dead as to things which did not exist when they lived!” (Corwin Reference Corwin1936, 1080). The student editors of the Tennessee Law Review imbibed this thought; they remarked that “the intent theory of constitutional construction” existed “more in phraseology than in fact” (Tennessee Law Review 1944, 388).
Hardly confined to the DOJ and the legal academy, living constitutionalism found champions in the media and among public intellectuals. (It did not hurt that Cummings went on NBC Radio to give a talk titled, “The Constitution as Living Document”).Footnote 24 In 1936, now-legendary journalist Drew Pearson co-authored his now-classic The Nine Old Men. Relentlessly gossipy with a rapier wit, the best-seller told lay audiences “the nine justices believed that they, and they alone, stood as guardians against flexibility in the economic and social life of the nation” (Pearson and Robert Reference Pearson and Allen1936, 1). The justices “had become legislators, not jurists” (ibid., 72). The liberal social gospel magazine, Christian Century, noted “no merely textual or literalistic interpretation of the Constitution is sufficient” for the rapidly changing modern world (Christian Century 1940, 845). Now a living liberal legend, Charles Beard insisted that “the Constitution as practice is a living thing”; “How could it be otherwise?,” he asked (Beard Reference Beard1936, 30–31).
Trying to Save Constitutional “Law”
It is no mistake that when constitutional theorists recount the intellectual lineage of living constitutionalism there is a “dead space” between the New Deal and the Warren Court’s 1960s rights revolution, save for Brown v. Board of Education (e.g., Solum Reference Solum2019). Further archival research is necessary to provide a more empirically grounded argument as to why there was no felt need to “theorize” living constitutionalism into a legal academic theory as FDR’s presidency gave way to the post-war era. But after the “Constitutional Revolution of 1937” (Kalman Reference Kalman2005) constitutional lawyers were mostly preoccupied with divining the appropriate role for the judiciary in this time of relative political dominance at the federal level. More fundamentally, the difference between constitutional law and politics needed shoring up. If, as political scientists were beginning to argue, constitutional law could be more profitably analyzed as “judicial politics,” and as the discipline ceded normative constitutional theorizing to the law schools, academic lawyers set upon taming legal realism and ensuring a professional space for constitutional law (Pritchett Reference Pritchett1948; Abbott Reference Abbott1988). Constitutional law professors, they argued, could teach the justices how to write a proper judicial opinion with an eye toward their institutional competence.
The aging Progressive, Zechariah Chafee at Harvard’s law school, simultaneously welcomed and worried about the legal realists’ critique. But he was clear—some of the realists had gone too far in thinking “that empirical science portrays the real world”; “they worship scientific method” (Chafee Reference Chafee1936, 516). In the Michigan Law Review another scholar noted that the “newly reconstituted” Court forced theorists to wonder about “the true role of the Court in constitutional interpretation” (Barnett Reference Barnett1940, 213). Attacking “the so-called ‘mechanical theory’” of judging, and admitting the Court’s role was “to great extent a truly legislative one,” this scholar maintained there had to be reliance on law. What will limit the justices? The “received legal tradition, by his desire to meet with approval of bench and bar, by the power of precedent, and by his ideas of the justice and the nature of social and legal order” (ibid., 225).
But liberal constitutional theorists had gotten no closer to “The Search for Objectivity in Constitutional Law” nearly a decade later (Braden Reference Braden1948). In the Yale Law Journal, a theorist admitted scholars were witnessing an “era of avowed sophistication in the Supreme Court.” But Chief Justice Stone’s not yet famous Footnote Four “in the otherwise little noticed Carolene Product case” was not yet seen as a basis upon which to build theory.Footnote 25 “There is no objectivity in constitutional law because there are no absolutes,” he concluded (ibid., 579, 581–82, 594).
This was not good enough for the emerging legal academic elite: the legal process theorists, embodied on the Court by Felix Frankfurter. Frankfurter viewed himself as an Olympian judge in the mold of Holmes and Brandeis (Purcell Reference Purcell2000, 203; Urofsky Reference Urofsky1991, 45–50). He set forth his confident conception of judging at the American Philosophical Society less than a month before Brown v. Board of Education was issued. While the “law presupposes sociological wisdom as well as logical thinking,” a judge must be able:
To pierce the curtain of the future, to give shape and visage to mysteries still in the womb of time, is the gift of imagination. It requires poetic sensibilities with which judges are rarely endowed and which their education does not normally develop. These judges, you will infer, must have something of the creative artist in them …. But a judge worth his salt is in the grip of his function. Footnote 26
This was the pith of legal process theory (see Purcell Reference Purcell2000, 222–40). Rather than a theory it was more an approach to judging, one self-aggrandizing of the law, the justices, and their supposed unique institutional competence. As one legal process adherent admitted in Harvard Law Review, judges “make law” (in scare quotes). But “at its best” judging was “an understanding process, not an emotional one, a self-effacing process, not a means of vindicating ‘absolute conviction’” (Griswold Reference Griswold1960, 94). On a lower plane, one Frankfurter acolyte repeated back to the justice their shared belief that judges must have “institutional awareness,” be aware that they “are fiduciaries”—“The realization springs from humility, a strong sense of history, and a true appreciation of the Court’s place in our system of law.” Footnote 27
The most influential Frankfurter protégé, Alexander Bickel, embodied not only legal process but serious constitutional theory in the law schools in the 1950s and 1960s (see Kalman Reference Kalman2005, 44–56, 293–341). The Yale law professor’s—it mattered that it was Yale (ibid., 33–40, 222–27)—most enduring contribution to constitutional theory was the “counter-majoritarian difficulty.” This was the claim that judicial review was a serious problem for democratic and constitutional theory: How could the Court justify overturning (congressional) legislation? Bickel’s abstract thought experiment set off an enduring “obsession” of constitutional theorists that continues to this day (Friedman Reference Friedman2002), though it never corresponded to the empirical reality of constitutional politics (Whittington Reference Whittington2019). But Bickel’s considered justification for judicial decision making given the institution’s “undemocratic” role was substantively thin. While judging involved policy making, “indeed, must,” courts had a special institutional competence: “dealing with matters of principle that legislatures and executives do not possess” (Bickel Reference Bickel1962, 24, 25). The justices have “the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government” (ibid., 26).Footnote 28
The Warren Court’s liberal justices, and liberal federal judges more generally, were mostly uninterested in being legal process pupils. The Court’s liberal core—Warren, Brennan, Douglas, Black (in the 1950s and early 1960s), and, in 1962 and 1965, Goldberg and Fortas—had already instantiated an untheorized living constitutionalism from Brown and beyond. Whether its outer limits were exemplified by Brennan’s famous “five votes” power politics or Fortas’s admonition to his law clerk to “Decorate it,” these justices were confident in their ability to remake constitutional law notwithstanding the academy’s griping.Footnote 29 J. Skelly Wright, a respected liberal federal appeals court judge, reached his limit in 1971 when the editors of the Harvard Law Review opened their pages to him. Wright pointedly warned the academy that “times are changing” and it might be legal process, not the Warren Court, that was “headed for obsolescence” (as one academic (Bickel) predicted) (Wright Reference Wright1971, 772, 804). That same year, former Justice Goldberg defended the Warren Court’s record against academic criticism. Using justifications that Herbert Croly and the Progressives would have immediately recognized—“dislodge traditional formalisms,” “grapple with everyday reality,” “bring legal rules into consonance with human reality,” mold “our constitutional protections into a workable and working reality”—Goldberg insisted that the Warren Court’s rights revolution was legally and morally correct (Goldberg Reference Goldberg1971, 23–26, 38).
Even understanding the legal process scholars on their own terms, it is difficult to see a “theory.” Their core argument was little more than optimistic assertion: “the marvelous mystery of time gives courts the capacity to appeal to men’s better natures, to call forth their aspirations, which may have been forgotten in the moment’s hue and cry” (Bickel Reference Bickel1962, 26). In the face of professional pressure to make an argument that constitutional law and theory still had content meaningfully distinguishable from constitutional politics—that is, to be an academic enterprise—legal process scholars could only offer that judges could “reason” their way to a “correct” legal result if armed with the right “principles.” Instead of theorists, then, legal process scholars are better understood as cross-pressured legal elites, both ideologically and professionally, who offered a heroic—and elitist—account of judging. Ostensibly interested in “judicial restraint,” in practice it was a self-aggrandizing and self-preservationist account of the justices and themselves.
Living Constitutionalism Leaves the “Law” Behind
To the left-liberals then in the legal academy, legal process was hardly “a liberal and progressive force in academia” (cf. Peller Reference Peller1988, 563); it was a well-placed “Frankfurter cult” (Miller Reference Miller1963, 910). For them, the legal process scholars only charily accepted “the ‘living constitution’”; they still required judicial “opinions written in that pseudo-logical form that so comforts lawyers and that so mystifies laymen” (ibid., 888). Rewritten within the strictures of law, the opinions could then be bestowed with “academic imprimatur” (ibid.). Rejecting legal process, some left-liberal scholars set out to defend the Warren Court without reservation. There was no future in continuing to rely solely on the traditional legal toolkit (text, precedent, history, and a dose of right-thinking policymaking). Judges had “always” understood the Constitution as “a ‘living’ document, one sufficiently flexible to be adaptable to the social problems of different periods of history” (Miller Reference Miller1963, 884).
Joined by Thurman Arnold, a New Dealer who helped found a politically powerful D.C. law firm, left-liberal scholars critiqued, sometimes harshly, legal process thought (e.g., Arnold Reference Arnold1960) while working to develop a more theoretical living constitutionalism. In a 1960 University of Chicago Law Review article, two law professors mocked the legal process scholars’ hand-wringing that “the Court is losing the ‘professional respect of first-rate lawyers’” (Miller and Howell Reference Miller and Howell1960, 662). The quest for “neutral principles” was, “save on a superficial and elementary level, a futile” one (ibid., 661). In the Yale Law Journal, a prominent liberal academic (Charles L. Black) dismissed the legal process scholars’ concerns with Warren’s opinion in Brown: “Elegantia juris and conceptual algebra have here no place” (Black Reference Black1960, 429). And a former Hugo Black clerk, portrayed the justice as thoroughgoing living constitutionalist. As Black had ostensibly shown, courts have the “duty” to give the Constitution “meaning in new settings as society changes, even if this requires facing issues which could be avoided, overruling precedents, or affirmatively undertaking to change some aspects of society” (Reich Reference Reich1963, 703). It would be a shame if a Supreme Court with a five-vote liberal majority would “adopt a judicial philosophy of passivity and self-restraint” (ibid., 722). Americans had a “Living Constitution,” and an “active court is the indispensable means” of ensuring the document “adapt[ed] to the changes in society” (ibid., 750). Footnote 30 In short, it was the living constitutional theorists in the 1960s, not the legal process “school,” who are more credibly deemed the intellectual heirs of Progressives’ constitutionalism.Footnote 31
And some of these heirs wanted to do more than simply theorize living constitutionalism. They saw worth in the Progressives and legal realists’ attempts to link more tightly law and social science (Schlegel Reference Schlegel1995). Miller exhorted fellow left-liberals to provide “greater help to the Justices in their dealing with the problems of the Positive State”—“there is a need for more than the traditional types of data” (ibid., 907, 909). But the next generation of elite left-liberals in the academy did not follow this more empirical path. Ethereal concepts like “reason” and “neutral principles,” were traded in for “justice,” “equality,” and “the new property” en route to constructing competing “theories” that each promised to provide the most clever constitutional basis for the Great Society and more.
These scholars were more “interested in ways of thinking about certain legal problems” (Michelman Reference Michelman1969, 10) than social science or the traditional legal materials. Instead, they looked to moral philosophy, especially John Rawls’s A Theory of Justice (1971). “Some books are like cathedrals,” a Harvard law professor gushed in a book review (Michelman Reference Michelman1973, 962). Ronald Dworkin—the most influential left-liberal constitutional theorist of the past fifty years—took the legal process scholars’ heroic assumptions about judges and made them mythological. Unlike a policy focused legislator, “a philosophical judge,” should devise a constitutional theory “in the same manner as a philosophical referee would construct the character of a game”—“I shall call him Hercules” (Dworkin Reference Dworkin1975, 1082–83). In contrast to the politics of legal process scholars, Dworkin and Hercules’s political sensibilities were that of “New York Review of Books” readers (Ely Reference Ely1978, 37).Footnote 32
Pushing even further, some left-liberals began to argue that judges were not really constrained by the text of the Constitution. This was due both to the felt need to provide a better justification for sexual privacy and abortion rights decisions and to combat an early academic variant of originalism—what Stanford’s Thomas Grey (and others) called “interpretivism” or “interpretive” judicial review (Grey Reference Grey1975, 703–04). In the Stanford Law Review Grey argued that rather than judges constructing “bad legislative history” or “strained reading[s]” of the Constitution’s text, the left-liberal constitutional project should be “justified by explication of contemporary moral and political ideals not drawn from the Constitutional text” (ibid., 706). A University of Michigan law professor had it that, in fact, the Constitution “is not fixed by the limits that the framers imposed upon the power of the majority,” but “upon evolving conceptions of the proper role of government in our society” (Sandalow Reference Sandalow1977, 1165). The “central problem” of judges’ role in the American constitutional system, then, was to identify and “justify” those “societal norms” that now gave “content to constitutional law” (ibid., 1185). Others, too, set out to “demonstrate” that Roe v. Wade—and more—could be justified by “values and norms not derived from the constitutional text” (Perry Reference Perry1976, 692).
But as the 1970s closed out, the Court’s constitutional politics had turned increasingly, if slowly, more conservative. Thus, articles arguing for a full panoply of left-liberal rights claims untethered from the constitutional text had a limited audience. More than that, the conservative legal movement began to make its presence felt in elite academia (Teles Reference Teles2008). The increasing salience of Robert Bork’s (Yale) and Raoul Berger’s (Harvard) “interpretivist” attacks on “noninterpretivism” became, if briefly, the theoretical jargon for conservative versus liberal arguments in the law reviews as the New Deal coalition collapsed (Ely Reference Ely1978; Michelman Reference Michelman1979, 665–66). The attempt to ground living constitutionalism in moral philosophy had failed.
Driving Out Critical Legal Studies, Welcoming in the Federalist Society
In the 1980s and early 1990s, legal liberals in the upper echelons of the academy made a consequential disciplinary choice: Critical Legal Studies (CLS) would be contained and then marginalized. The conservative lawyers connected to the Federalist Society would be their theoretical interlocutors. CLS will soon have its full history delineated (Baumgardner Reference Baumgardner2020; see also Schlegel Reference Schlegel, Dubber and Tomlins2018; Kalman Reference Kalman2005, 281–312). For now, it suffices to say that CLS shook legal liberals to their core (e.g., Bobbitt Reference Bobbitt1989). Not simply concerned with constitutional law, the “crits” attacked the nature of law itself from the political left. The law was indeterminate, CLS scholars argued, and inevitably political in the broadest sense of the term. Indeed, according to the crits, the legal liberal project of finding or creating new individual rights had amounted to precious little on the ground, a conclusion to which Gerald Rosenberg’s The Hollow Hope lent significant empirical support (Rosenberg Reference Rosenberg1991; see Unger Reference Unger1986; Kelman Reference Kelman1987; Tushnet Reference Tushnet1994; Kennedy Reference Kennedy1997). The implications were not hard to glean. Legal education needed to be reworked and the very mission of the law schools—imparting legal knowledge—was a subterfuge for reifying structural inequalities.
In the process, too, CLS and its academic sympathizers sullied what had become the most prestigious field of academic law: constitutional theory (Kalman Reference Kalman2005). If constitutional theory was “not political theory but advocacy scholarship” (Brest Reference Brest1980, 1109)—another clear implication of the CLS project—then much of this academic work could not credibly be thought of as knowledge production. Legal liberals could not accept this critique. They still believed that the law schools were not only professional schools, but “academic institutions” where the “discover[y] of truth” occurred (Martin Reference Martin1985). If constitutional law was reconceived as a distinct policy language and analyzed as such—the pith of the Progressives’ and CLS’s critique—then constitutional theory seemed much less worthwhile. Instead, the crits were, at bottom, “nihilists,” who perhaps deserved a respectful hearing, but little else (ibid.).
Indeed, with the advent of “originalism”—which flowed directly from Edwin Meese’s DOJ into the law schools—and its exciting battles with liberal justices on the Rehnquist Court, constitutional theory seemed in full flower (Baumgardner Reference Baumgardner2018). If the crits were legal nihilists, the increasingly politically relevant theory of originalism and the “liberal vs. conservative(s)” debates, panels, conferences hosted by the rapidly growing Federalist Society were much more congenial professionally, if not ideologically (Hollis-Brusky Reference Hollis-Brusky2015). The Federalist Society’s de facto official theory, originalism, with its focus on the traditional concerns of constitutional text, structure, and history did not seem to threaten the integrity of academic constitutional law and theory. As it was increasingly institutionalized by the GOP, the political success of originalism also reset the boundaries of what counted as mainstream constitutional theory. Legal liberals first developed a Founding era competitor, “republicanism” (e.g., Sunstein Reference Sunstein1988).Footnote 33 As one legal historian notes: “liberal law professors marketed republicanism as a theory that could … revive Warren Court liberalism, provide progressives with even more than they had received from the Warren Court, and had the Founders’ imprimatur” (Kalman Reference Kalman1996, 160). Professionally, republicanism was liberals’ answer to conservatives’ originalism. Intellectually, it was an attempt to, like originalism, locate constitutional authority in the Founding Era. But because of the nature of originalists’ political project these conservative and right-libertarian scholars were uninterested in understanding the Founding in this way.
With the election of President George W. Bush, it became clear originalism had staying power. One legal liberal tried to take down originalism from within. Yale’s Jack Balkin “converted” to originalism and devised an idiosyncratic theory that married aspects of living constitutionalism with components of originalist theory (e.g., Balkin Reference Balkin2007). By virtue of his professional placement in the legal academy and the dangerous political implications of “living originalism,” Balkin’s theory was cited and discussed in the originalist wing of the legal academy and at Federalist Society panels. But it did not change any conservative originalist minds. Some legal liberals followed Balkin’s lead, taking text and history more seriously than their 1970s predecessors (e.g., Liu, Karlan, and Schroeder Reference Liu, Karlan and Schroeder2010). The through line in this work suggested the theoretical insecurity of legal liberals who had internalized originalist critiques of living constitutionalism—they emphasized “constitutional fidelity,” “text and principles,” even the “redemptive” qualities of their theoretical offerings. Others began a more historically grounded project of “democratic constitutionalism” (Post and Siegel Reference Post and Siegel2007).
In sum, while still maintaining their numerical dominance in the legal academy, legal liberals watched while conservatives formed their own “interlocking directorate” with the Court (Kalman Reference Kalman2005, 80). With the appointments of Roberts and Alito, there were five movement conservatives on the Court. Now the conservative justices could rely increasingly rely on their own body of politically useful scholarship from the academy to help justify conservative outcomes. Legal liberalism found itself on the outside looking in.
REDIFINING CONSTITUTIONAL LAW
Those to legal liberals’ left have been working on a project of critical constitutionalism. In one sense, these scholars are not “building” on CLS; they do not ground their arguments in the canon of CLS scholarship. Critical constitutionalism—roughly, the wider scholarly network in and around the Law and Political Economy Project—is grounded in legal history, the history of capitalism and colonialism historiography, critical theory, and the social sciences (e.g., Bali and Rana Reference Bali and Rana2018; Tani Reference Tani2016; Johnson Reference Johnson2016; Kessler and Pozen Reference Kessler and Pozen2016; Grewal Reference Grewal2014). But the political through lines from CLS to this critical constitutionalism are apparent. Critiques of capital are now critiques of neoliberalism and racial capitalism, and the citations to the canon of political philosophers and theorists are updated and reinforced by history and social science (ibid.). While less rambunctious than CLS in its heyday, critical constitutionalism is its progeny.
Harvard law professor Mark Tushnet, and his latest book, Taking Back the Constitution, serve as intellectual bridges between the two movements. One of the core group of scholars who put CLS on the map in the late 1970s (Baumgardner Reference Baumgardner2020), Tushnet has long been a trenchant critic of constitutional theory. This book is, to be sure, “about” the Supreme Court but it implicates constitutional theory and law in its critique. The first part of the book explains the state of the constitutional doctrine in most every area of salient political importance (Tushnet 2020, 3–108). And, while overlapping some with Balkin’s Cycles, it can also be read as a less deterministic account of Reagan era constitutional development and one that takes constitutional theory qua theory less seriously (ibid., 113–88). A third reading reinforces Tushnet’s prior work on “popular constitutionalism,” the theory that American constitutionalism can better reach its aspirations by substantially reducing the role of courts and legal elites and empowering “the people” (ibid., 241–57).
But one aspect of the book brings into focus the revivified critique of constitutional law critical constitutionalists have (re)developed. Discussing the justices’ opinions, Tushnet writes, “What matters is that law—all the way down—consists of those argument forms or, more informally, moves” the justices deploy to end up at their preferred result, at least most of the time (ibid., 13). The “argument forms” are, essentially, the famous “modalities” of constitutional interpretation that Phillip Bobbitt identified long ago—arguments from text, precedent, “structure,” policy, and abstracted out “first principles” that are, according to Bobbitt, part of the “American [constitutional] ethos” (Bobbitt Reference Bobbitt1982, 12–13).
Thus Taking Back the Constitution is also an extended argument on what standard legal arguments modern-day progressives and liberals can use in the near- to medium-term to best realize their constitutional and institutional reformation goals. Even if written and published before Justice Barrett’s confirmation, Tushnet’s well developed scenarios show that the modality-based constitutional arguments available to progressives are rather limited (Tushnet 2020, 192–240). For Tushnet, popular constitutionalism is the long run progressive hope to remake constitutional politics in a more democratically representative and egalitarian fashion (ibid., 243–75; see also Kramer Reference Kramer2005; Zackin Reference Zackin2008).
Perhaps, then, the central problem of constitutional law and theory is the modalities themselves. This is what concerns David Pozen and Adam Samaha in their article, “Anti-Modalities.” Not simply a model of knowledge production in the field of constitutional theory, it has the potential to set a new research agenda. “Anti-Modalities” brings into sharp relief how the modalities of constitutional law—that is, what everyone thinks of as “doing law”—transmogrifies it. Certain argument moves are forbidden in constitutional law; they are not “legal” arguments. Pozen and Samaha find there are six “anti-modalities.” Perhaps the most important area is “policy arguments that are formulated as openly instrumentalist inquiries into welfare effects” (Pozen and Samaha 2021, 731).Footnote 34 Express policy arguments must be excluded for constitutional law to function as distinct from constitutional politics. But of course policy arguments (and the rest of the anti-modalities) get smuggled into constitutional argument. The result is an “ersatz, superficial hybrid of social science and philosophy” (ibid., 787). Through “legal” arguments that trade in “[a]nalogies, slippery slopes, ipse dixit, and causal speculation” constitutional lawyers (academic and practicing) keep constitutional theory (and law) distinct from constitutional politics but substantively thin (ibid.). The “law” in constitutional law is doing little analytical work.
Pozen and Samaha see two paths out of this dilemma. Constitutional lawyers can either work on “reducing the distance between constitutional and nonconstitutional argument” or “reducing the area of active constitutional decisionmaking” (ibid., 788, emphasis in original). Fully integrating constitutional law and theory into the rest of the university would “reduce the distance” but it is “unrealistic for our lifetimes” (ibid., 790). For Pozen and Samaha, that would entail “transforming the practice of constitutional law beyond recognition” (ibid.). “Reducing the area” is their provisionally preferred approach. The goal should thus be to remove policy areas from what is considered the domain of constitutional law “and assigned elsewhere” to minimize the “pathologies” of traditional constitutional law (ibid., 792). Put differently, constitutional theory might change constitutional law by elite academic lawyers teaching their students—future judges, justices, and the next generation of legal academics—that there is a limited set of problems on which lawyers’ expertise can usefully be brought to bear.
This is a powerful critique. Yet, it is not clear that absent major reforms (e.g., jurisdiction stripping), reducing the terrain of constitutional law in the law schools (and then beyond) is more easily achievable than changing the nature of what counts as constitutional law. The courts have long been empowered to do their work by the political branches (e.g., Whittington Reference Whittington2008). A secular project from within the legal academy arguing for reducing the terrain of constitutional law would need significant support from the wider university and Democratic and Democratic Socialists of America (DSA) political elites—and then sympathetic attorneys general and judicial nominees. There are deeply vested professional and ideological interests that make voluntarily ratcheting back the terrain of constitutional law difficult. It is more likely that, with the help of sympathetic legal elites, another discipline credibly claims that academic constitutional lawyers should lose their “jurisdiction” over constitutional theory because they can better perform or repair the intellectual task (Abbott Reference Abbott1988).
This points up, too, why legal liberals have failed to meaningfully dent originalism in the legal academy or on the Court over the past four decades. As movement conservatism became increasingly politically powerful, there developed a corresponding professional need to take their brightest legal minds, and their theories, seriously. Much like the living constitutionalists of the 1960s and 1970s, the academic and political point of originalist scholarship is devising new arguments to justify more (now) conservative doctrine rather than knowledge production per se. The critiques of the past generation of historians who specialize in the Founding era highlights the political point of originalism (and constitutional theory). Historians have repeatedly shown the theoretical and empirical impossibility of originalism as practiced on the Courts and in the law schools (e.g., Rakove Reference Rakove1997; Cornell Reference Cornell2009; Cornell Reference Cornell2013; Gienapp Reference Gienapp2018). Outside of a few originalists there is little effort to substantively engage this research (e.g., Baude and Sachs Reference Baude and Sachs2017). Even more conspicuously, the last five years have laid bare that many academic originalists’ political and professional commitments outstrip any dedication to the theory as a scholarly enterprise (Saldin and Teles Reference Saldin and Teles2020).
The same holds true for the reinforced conservative majority on the Court. Today, constitutional conservatism now seems as obviously true for the GOP as the living constitution did to liberals in the 1960s and 1970s. No more than the Warren Court’s justices were interested in movement conservatives’ critiques of their work (to say nothing of the legal process scholars) there is little reason to think that clever liberal legal or theoretical arguments will stop five self-professed originalists—or, put slightly differently, six movement conservatives—from abandoning core ideological and coalitional commitments. Absent repeated electoral victories by a sustained Democratic majority, over the medium term a very conservative court will do as much as it can for economically and culturally conservative groups’ rights claims, especially those that sound in a minoritarian register.
In sum, Pozen, Samaha, and Tushnet’s collective diagnosis of the problems with constitutional law is far more penetrating than what legal liberals have put on offer. Whatever disagreement one might have with their prescriptions, theirs is a research agenda for academic constitutional lawyers capable of knowledge production. Rather than thinking that trojan horse arguments—and endless critiques—might take down constitutional conservatism and originalism from within, rather than “debating” or “showing” the justices (and federal judges) how their opinions are not the “best” reading of the “law,” rather than staking out an empty “pox on both your houses” middle ground, critical constitutionalists have learned the lessons of the past century and have laid the intellectual foundation to propel a new American constitutionalism. Legal liberals might take a page from their book.
CONCLUSION: LEGAL LIBERALISM IN 2050
Nearly a century after Corwin expressed frustration with constitutional “theory,” little has changed—living constitutionalism and constitutional conservatism (now in the patois of originalism) have fought to an intellectual standstill and a political rout. The Progressives’ living constitutionalism shattered traditional American constitutionalism (Milkis Reference Milkis2009), but beyond the central insight that constitutional law was policy in the professionalized language of law there has been little advance in knowledge production. This is due in significant part to elite academic constitutional lawyers’ unique institutional position in the post-war era (Abbott Reference Abbott1988; Baumgardner Reference Baumgardner2018; Baumgardner Reference Baumgardner2020; Saldin and Teles Reference Saldin and Teles2020; Bonica and Sen Reference Bonica and Sen2021). Distinct among academic disciplines that do not deal in the hard sciences, academic lawyers have an abiding attachment to a formal governing institution—the Supreme Court. As they colonized normative constitutional theorizing in the post-war era, it is not surprising that constitutional lawyers became activist-intellectuals. Because academic lawyers have a deep emotional and professional investment in the Court’s work it should come as no surprise that an express political judgment of the Court was built into the very nature of constitutional theory as a scholarly enterprise. In short, given the deep professional ties to the Court and the inherent normativity of the enterprise, social scientists and historians should understand constitutional theory and the law schools as important institutional sites of political contestation—sources of data and sites of study (e.g., Bonica and Sen Reference Bonica and Sen2021; Hollis-Brusky and Wilson Reference Hollis-Brusky and Wilson2020; Baumgardner Reference Baumgardner2018).
Living constitutionalism’s undertheorized telos of “progress” worked well enough to support liberalism through the Civil Rights movement, the Great Society, even Nixon and Ford’s buildout of the administrative state. The Roberts Court, Trump, and the aftermath of the 2020 presidential election have thrown into sharp relief legal liberalism’s lack of compelling answers for our “beleaguered republic” (Skowronek, Dearborn, and King Reference Skowronek, Dearborn and King2021). As modern-day progressive constitutional theorists have shown, debating the Court’s conservatives and their academic and political supporters has resulted in little intellectual or political gain. What they apprehend, and what legal liberals lost sight of, is that living constitutionalism and originalism achieved their dominance based less on intellectual horsepower, but because these constitutional ideologies made modern liberalism and post-war conservatism make constitutional sense (Noel Reference Noel2013). Put differently, liberal (and conservative) constitutional theory tends to perform best—that is, have the political efficacy that is built into the enterprise—when it sets out to remake in the policy language of law the constitutional concerns of the groups that make up an electorally successful coalition (e.g., Karol Reference Karol2009).
Since the Progressives’ political creation of “living constitutionalism,” left-liberal constitutional theorists and justices remade it theoretically and politically into numerous permutations. There were many choices made and paths not taken as professional and ideological concerns consistently took pride of place. The last of these professional and ideological pivot points was the 1980s (Baumgardner Reference Baumgardner2020). By agreeing with conservatives that the traditional legal materials (the modalities) were the only permissible constitutional law arguments, legal liberals turned their back on their own radical history. The Progressives’ central insight that constitutional law is policy and the “law” must take that reality into express account was downplayed by liberal legal elites who could not abide the professional and intellectual consequences of fully admitting that. Instead, conservative and right-libertarian originalists’ claims to objectivity via dilettante historiography and philosophy, wordsmithing of constitutional text, and structural syllogisms were taken seriously. The consequences of that choice are now apparent.
