The Constitution in 2020: Progressives as Pragmatists, and Conservatives as Formalist

October 6th, 2009

Over at Volokh Conspiracy, Ilya Somin writes about The State of Constitutional Theory on the Left and the Right

My dominant impression is that there is a great deal of consensus among left of center con law scholars about which way most important cases should come out, but much less agreement about why. If you look at the big constitutional issues facing the Supreme Court – federalism, property rights, criminal defendants’ rights, the death penalty, executive power in wartime, abortion, campaign finance – there is very little disagreement among liberal scholars about the question of what the Court should do; though there is some divergence about how fast the courts should go in getting from here to there.On the other hand, there is a great deal of debate about the theoretical reasons justifying these preferred results. Big-name liberal constitutional law scholars range from originalists like Akhil Amar, to Bruce Ackerman’s “constitutional moment” approach, to “living Constitution” theories of various types (e.g. – Laurence Tribe), to representation-reinforcement theories (e.g. – the late John Hart Ely and those who have build on his ideas), to “judicial minimalism” (Cass Sunstein), and several other theories I won’t go through here. The Constitution in 2020 book and conference largely sidestepped these theoretical debates by focusing on preferred outcomes in particular issue areas. As Paul Kahn (a participant in the conference, but not a contributor to the book) put it, the Constitution in 2020 project seems to call for “less talk and more action.”

I also attended the conference and made many of the same observations as Ilya. They did little to reconcile the Amar view from the Sunstein view from the Tribe view. But, I think that may be byproduct of their views, rather than an unintended consequence. When Progressives eschew formalism, and focus on pragmatism, the means to achieve a goal are largely irrelevant. All that matters is that the desired outcome is achieved. Taken to an extreme, a few dozen constitutional law scholars may find it only slightly unbearable that they cannot agree on a specific means to achieve progress goals.

Conversely, conservative constitutional theorists (more or less) tend to hedge towards formalism. The means matter more than a desired outcome. So while conservatives tend to agree with an originalism methodology, they use those means to achieve different outcomes.

So the schism between the two may be an essential byproduct of how the Left and the Right view the Constitution.

Check out my liveblog of the conference for more details: