Constitutional Conventions: Getting 20/20 Vision About Them by 2020

Crosspost from Balkinization

The Constitution in 2020 is at once an effort to articulate a theory of progressive constitutionalism that can counter the ascendency of conservative constitutionalism’s theory of originalism – and is an effort to imagine what such a progressive constitutionalism can realistically hope to accomplish in the medium term. Notably, a majority of the essays in the book appear to give up on judge-centered approaches to constitutional change and seek to bring about progressive ends through legislation and social movements. Whether this is because the authors of the essays just don’t have their five votes on the Supreme Court as of yet (the cynical perspective of one recent review) – or whether it is because they have really grown convinced of some of the disadvantages of judge-led constitutional change – the volume makes clear that today’s mainstream liberals in the legal academy are no simplistic defenders of judicial review, judicial supremacy, and judicial liberal activism. The romance of FDR might remain, but the romance of the Warren Court has faded for most. This shift has been underway for some time, to be sure, but today’s law students are more likely to see their liberal law professors questioning Roe in earnest than previous generations. Brown may still be untouchable; but this book helps the next generation see clearly that if they want to own their Constitution and have it represent the best of their own constitutions, there are democratic methods outside the judiciary to make that happen.