OWS is a critique of the system of American democracy and how the engines and devices of American democracy have been perverted for the benefit of the 1 percent and to the disadvantage of the 99 percent. This critique is clearly about the Constitution. And if we look at the text of the Constitution, we will see why that is so.Part 2 of 2. (Here is Part 1.)
The American Constitution is the framework for a democratic republic. A democratic republic, in turn, is system of government that is designed to be responsive to the people of the United States as a whole, and not to the wealthiest 1 percent.
[...] A broken government, unresponsive to the public, is more than a misfortune. It is a violation of our basic charter-- our Constitution. - Jack Balkin
As Occupy continues to march forward, it is important that we try to understand the role the Constitution, and the interpretation of it, will necessarily play in the articulation, execution and achievement of Occupy and progressive objectives. In the Jack Balkin article I excerpted above, I think he really gets to the heart of the Constitutional matter regarding what Occupy is about. In this piece, I will discuss two theories of constitutional interpretation that I believe are relevant to how Occupy approaches the Constitutional questions that its objectives raise.
I've written before (see, for example, Prof. Jack Balkin on Living Originalism and the constitutionality of the Affordable Care Act) and I attended a conference at Yale discussing the ideas in Balkin's book, Living Originalism. These writings and the conference got me to thinking about how to impart the critical importance of these issues to fellow progressives. My article last week and what follows is my meager attempt to do so.
Last week I concentrated on Professor Sanford Levinson's idea of a constitutional convention. This week, I turn to the related but somewhat competing ideas of Yale Law professors Balkin and Bruce Ackerman. Ackerman's theory posits the idea of "Constitutional Moments." In a review of Ackerman's 1991 book on this theme, WE THE PEOPLE: FOUNDATIONS, Cristy Scott described it thusly:
Ackerman postulates a constitutional structure that grants the Supreme Court the role of preserving law created by the People during highly energized moments of collective political activity. During these periods of extraordinary political mobilization, the People clearly express their wishes concerning issues of higher law. As the energy and collectivity of the populace fades and we return to "politics as usual," the Supreme Court must modify its constitutional adjudication to account for the law created during this constitutional moment, and the Court actively must protect this new constitutional law from erosion or violation. Because of this two-tiered lawmaking structure, consisting of "constitutional moments" and "politics as usual," Ackerman calls the American system a "dualist democracy."
In June, the Roberts Court will hand down its decision regarding the constitutionality of the Affordable Care Act and the individual mandate. Depending on the reasoning followed, this could be the most significant decision regarding our system of government since 1937, when the New Deal style national government became "constitutionalized." What can it mean for progressives generally and Occupy specifically? I'll explore that and how the theories expounded by Professors Ackerman and Balkin provide ways of thinking, not only about the ACA decision, but the Constitution itself, in a manner which may lead to smart strategic activism by progressives and Occupy. A discussion on these themes will occur on the flip.
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Before discussing in detail the relevance of these theories, I think it is important that we understand how they differ. First to recapitulate Professor Balkin's central thesis:
[F]idelity to original meaning and the idea of a Living Constitution that adapts to changing time and conditions are not rival theories of constitutional interpretation; they are actually compatible positions. When we understand how and why they are compatible, we will also understand how democratically legitimate constitutional change that is faithful to the Constitution's original meaning occurs in the American constitutional system.[...] Understood as an account of the process of constitutional decisionmaking, Living Constitutionalism makes a great deal of sense . It also has the advantage of describing the actual history of our nation. - Living Originalism, pp. 277-78.My own articulation of the idea is contained in this post:
I reject the idea that proponents of a Living Constitution are not originalists, in the sense that the idea of a Living Constitution is to promote original Constitutional purpose to current circumstances.I think Balkin and I are essentially saying the same thing. Balkin also takes a moment to describe how his theory differs from Professor Ackerman's. I relate the most significant for our purposes here:
My view is that a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented. I believe that the proper function of Constitutional interpretation does not entail reading the Constitution as one reads a statute - it requires more than a formalized reading of the text and search for specific findings of the original understanding of the specific text in question and the applicability to the case at hand. It requires a unifying approach, one that seeks to read the Constitution as a whole, harmonizing the component parts of the Constitution, the empowering provisions, the limiting provisions, the individual rights created and preserved. It requires understanding the purpose of the creation of a third coequal branch, the judicial branch, with the attendant common law judicial powers and restraints.
The first great Chief Justice, John Marshall, did yeoman work in establishing this role and approach for the Supreme Court. I argue that Marshall's jurisprudence established that Constitutional interpretation requires both respect for the original purpose and application of Common Law principles to discern the proper application of original purpose to the specific case presented.
The phrase "Living Constitution" is often used to disparage this approach. But I think, properly understood, the phrase is very appropriate - the purpose of the Constitution lives and grows - and the original PURPOSES are essential to that growth - by understanding the WHY the Framers wrote what they wrote and serving the original PURPOSE by transposing that purpose upon the specific case.
[T]here are [...] important differences [between Balkin and Ackerman] which produce a different account of both constitutional revolutions and a living constitutionalism.What does this all have to do with Occupy and progressives? A lot I think. While I believe Professor Balkin's thesis the more accurate as a matter of constitutional interpretation, I believe Professor Ackerman's may be the more accurate in terms of describing the constitutional history of the nation. Constitutional transformation really did happen the way Ackerman describes them.
First, Ackerman's theory focuses only on the very largest changes in constitutional development that produce new constitutional regimes like Reconstruction and The New Deal. [...] Ackerman's model of change is not gradual, but revolutionary. [...]
Second, Ackerman argues that regime changes are democratically legitimate because they enjoy the self-conscious, mobilized, and broad support of the American people. This means that the American People [...] must understand that the Constitution is being amended [...] and they must actively support these changes [...]
Third, Ackerman's constitutional moments [...] involve 'unconventional adaptations' of existing constitutional machinery that the people accept or reject. [...] - Living Originalism, pp. 309-12.
Further, in terms of Occupy and similar progressive movements, the Ackerman model is clearly the more populist and the model more geared to political action. In this sense, it is the more immediately relevant to Occupy and other progressive movements.
In a conversation I had with Professor Ackerman, I told him "you are a populist." He responded "precisely." Progressivism and Occupy are populist movements. And Professor Ackerman's constitutional theories truly adapt well to today's progressivism.
But change is not enough. Transformation implies endurance. How can the progressive change we want not be fleeting? How is it legitimized and institutionalized? Here is where Professor Balkin's theory becomes critical. It is a sort of second step to constitutional transformation.
To my way of thinking progressivism and Occupy must look to both the Ackerman approach and the Balkin approach.
But there are other concerns. It seems to me that the top worry in terms of the Constitution and its interpretation for progressives and Occupy is that many, if not most, of the Constitutional values we cherish are under assault by a radical and extreme conservative Republican movement that may very well have a working majority of the Supreme Court.
Are we facing a conservative Constitutional Moment? If the Roberts Court strikes down ACA (and even more ominously, does it by signaling a return to the Lochner Era) and in the fall strikes down affirmative action (Grutter, the 2003 SCOTUS decision reaffirming the constitutionality of affirmative action) is on the table and after Parents Involved, a case where the Roberts Court struck down locally devised desegregation plans), the odds are overwhelming it will be overturned), AND THEN Romney wins the presidency and Republicans control the Congress, can extreme and radical Republicans legitimately claim THEIR Constitutional Moment has come?
I've written before that every progressive must work hard for the reelection of President Obama if for no other reason than his defeat would imperil every progressive value we cherish and in ways we've never seen in recent history.
Today, the Supreme Court is the ultimate prize. Our Constitution is at risk. Our opportunity for progressive values being further enshrined in Our Constitution is in peril.
A Constitutional Moment may well be at hand. We must fight for our values as hard as we can. And that means fighting for President Obama's reelection so that he can name progressive jurists to the courts, especially the Supreme Court.
Of course there are many other monumental battles to be fought, but for my money, this is the biggest one we face today.