Constitution in 2020: Response to Professor Horwitz

October 6th, 2009

Over at PrawfsBlawg, Professor Horwitz provides a very thoughtful response to one of my comments on my liveblog of the Individual Rights Panel at the Constitution in 2020 Conference.

I wrote:

“It almost seems like the panelists want to achieve some end, and they flip through the Constitution trying to find something, anything to justify her beliefs. This seems backwards. Shouldn’t the text of the constitution inform what the law is? I do not have a political science or philosophy background, but I would imagine if this conference was entitled Political Science in 2020 or Philosophy in 2020, there would not be much of a difference. These scholars are creating brilliant theories of society, government, policy and then as a footnote, try to make portions of the Constitution support it. This troubles me in a sense. All of their concerns are valid from a policy standpoint, but from a legal standpoint I don’t get it. Or maybe, I am too naive in thinking the law has a form. Is being a formalist just foolish? If the law does not have a form, then the law is whatever smart people say it is. If that’s the case, why hide behind the veneer of a written constitution? All this talk of “norms,” “constructs,” and “infrastructures” seem like talismanic incantations of juristic concepts, but ostensibly serve as a fig leafs for the authors idea of what is right and what is wrong.”

Professor Horwitz writes in reply:

This is a well-worn criticism, one that of course is used against both left- and right-leaning constitutional theorists, and I can certainly understand its looming at this conference, for reasons I’ll expand on below.  I’m not sure, however, that it was an apt criticism of this panel.  All of us did, in an important sense, start with constitutional text — Elizabeth Emens, who spoke on disability rights, started with the Equal Protection Clause, Alice Ristroph spoke about the criminal procedure amendments, and Rick and I started with the First Amendment.

Perhaps 3 years of studying originalism at George Mason has made me somewhat of a purist to policy arguments about what the Constitution ought to be. Professor Horwitz is quite right that all of the panelists began by mentioning various clauses of the Constitution. Though, for the most part that is where the discussion ended.

But Professor Horwitz divided the speakers at the conference into 3 categories. This distinction helped put the conference into a much clearer focus

(1) Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists.

(2) Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable.

(3) Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don’t care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives.

This hits it right on the head.  We are in agreement over the panelists who fall into category #1. My comment regarding the Constitution as a footnote mirrors Professor Horwit’s comment that the constitution “was present but only sitting in the passenger seat.”

I think where I disagree with Professor Horwtiz is where the boundary blurs between group #1 and group #2. I am not exactly sure what a “Good-Faith” constitutionalist is. My view of the Constitution is such that there isn’t room for a “politically progressive constitutionalism” nor room for a “politically conservative constitutionalism.” There is only room for the Constitution qua Constitution.

Professor Barnett has written about whether the Constitution is Libertarian. I think this is a different inquiry than a “Good Faith Constitutionalist” arguing that there is room for a “politically progressive constitutionalism.” While Barnett argues that the founders wrote a libertarian constitution, modern progressive scholars say that the Constitution ought to become progressive due to changing circumstances.

For that reason, I don’t see too much of a difference in practice between Group #1 and Group #2.