Progressives Debate Between Living Constitutionalism and Originalism

July 21st, 2011

Damon Root has a great piece at Reason about a recent Brookings Institution discussion on “Progressive Jurisprudence.”

As the event description helpfully put it, while conservatives have largely coalesced around the school of thought known as originalism, which says that the Constitution should be read according to its original public meaning, “progressives have floundered both in developing any sort of consensus as to what they want from the courts and in describing their expectations to the public at large.”

On hand to rescue the left from further floundering was University of Chicago law professor Geoffrey Stone, who preached the old-time religion of living constitutionalism, and his debate opponent, Douglas Kendall, founder and president of the Constitutional Accountability Center, who instead urged progressives to follow the Constitution’s text and history “because those sources are on our side.”

There is something to be said for Kendall’s approach. Unlike Stone, who declared originalism to be “inevitably a fraud in practice” because “the text of the Constitution is unbearably ambiguous,” Kendall correctly observed that the Constitution isn’t always so vague, and that conservatives, despite their purported featly to originalism, sometimes get the text wrong.

I’ve noticed this schism for some time, building on Kendall’s brief in McDonald v. Chicago. I’ve also heard Stone speak at the ACS Convention where he ripped apart originalism.  Keep an eye on this development.