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The End of an Idea
Progressive constitutionalism is a dead end


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Last week, Elena Kagan told senators on the Judiciary Committee that she did not know the meaning of the term “legal progressive.” Fortunately, in a New York Times Magazine article last week, Harvard law professor Noah Feldman provides Ms. Kagan and the senators a detailed articulation of a progressive vision of constitutional law and thus a précis of what may be at stake as the Senate considers the nomination of Ms. Kagan. In particular, Professor Feldman argues that the individual-rights agenda that has defined the constitutional Left is largely exhausted and that future constitutional battles will involve confrontation between the market and the state. He in effect urges the constitutional Left to recover its forgotten roots in the New Deal and the progressive movement. Without such a liberal resurgence, Feldman fears, a conservative Supreme Court could stand in the way of benevolent regulation of the market.

We certainly agree with Feldman that progressive constitutional thought is intellectually exhausted. Indeed, it has been intellectually exhausted for some time. Feldman is also probably right that the biggest legal battles in the future will be about market regulation. But we think he is mistaken about how those battles will and should unfold.

First, despite claims by various leftish professors of constitutional law, there is no well-articulated strand of pro-market constitutional activism on the Court right now. Indeed, the Court’s most “conservative” justices have repeatedly mocked the doctrine of “substantive due process,” which the Court once employed on occasion to protect economic liberties from undue state interference. We also think it is highly unlikely that the Court will constitutionalize debates over health-care reform, financial regulation, or programs designed to reduce carbon emissions.

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To be sure, there is something about wearing black robes and sitting in that marble building that can give people a God complex. Maybe Chief Justice Roberts and his merry band will decide that they are going to save the republic from Sarbanes-Oxley and Barney Frank, but we doubt it. Even the Rehnquist Court’s much-ballyhooed federalism decisions repeatedly acknowledged that Congress can regulate commercial activity, no matter how local, so long as the overall category of regulated activity has a non-trivial impact on interstate commerce. Indeed, no regulation of commercial activity, local or otherwise, has fallen prey to judicial review at the Supreme Court for more than 70 years. Just five years ago, the Court even went so far as to sustain a congressional ban on the mere possession of home-grown marijuana intended for medicinal purposes valid under state law.

It’s hard to imagine the Roberts Court, with its bare 5–4 conservative majority, interfering with Congress’s efforts to regulate, say, multi-national investment banks or companies traded on the New York Stock Exchange. In addition, it is by no means clear there will be a great deal of dramatic legislation for the Court to consider. A political backlash against perceived overreaching by the national government is already brewing. While we don’t think that this response will devastate President Obama or his Democratic allies, it may well prevent Washington from embarking on any additional ambitious regulatory projects in the foreseeable future.

Not only do we disagree with Feldman’s assessment of the current constitutional landscape, we also believe that his take on the history of progressive constitutionalism is off base — mistaken in a way that should undermine anyone’s enthusiasm for the sort of progressive agenda he advocates. The irony is that, for all his calls for new thinking, Feldman’s take on the economic history of progressive constitutionalism is, like that of many other progressives, badly dated. To be precise, Feldman’s analysis rests on two incorrect claims about the relationship between constitutional law and economic regulation before and during the New Deal.

First, Feldman errs when he suggests that Lochner-era justices were supine agents of business interests and thus reflexively opposed regulation that furthered the interests of consumers and powerless workers. In point of fact, even during the height of the Lochner era, the Court, to the chagrin of some libertarians, upheld most state and federal regulation of economic activity. As a result, the main impediment to such regulation, even during this period, was less constitutional law than ordinary politics. Moreover, many of the regulations the Court did strike down were attempts by incumbent businesses and workers to shield themselves against competition from new market entrants, hardly the sort of legislation a pro-consumer and pro-worker progressive should endorse.

For example, in some such cases the Court struck down purportedly progressive laws that in fact severely disadvantaged racial minorities, sometimes by explicit design. It is also noteworthy that the most notorious case from this period — Lochner v. New York — invalidated a law that burdened a small immigrant-run business by placing Lochner and other entrepreneurs at a competitive disadvantage vis-a-vis larger firms barely affected by the law. It turns out that big business and big labor cope quite well with big regulation, which they often come to support as a means of protecting themselves from competition. Indeed, West Coast Hotels v. Parrish, a key decision in the progressive canon, which effectively overruled Lochner in 1937, sustained as constitutional a minimum-wage law that did not apply to men, thereby pricing many women out of the labor market. The modern Court would properly ban such legislation as rank sex discrimination.

The second problem with Feldman’s narrative is his valorization of FDR and the “progressive constitutionalism” that affirmed the vast, post-1937 expansion of federal regulatory power. As Feldman tells the story, FDR’s 1932 election heralded the rejection of corporate fascism and socialism in favor of what he calls “liberalism” and “regulated capitalism.” Feldman also tells us that FDR had to wait patiently before appointing the progressive Supreme Court justices who would validate his efforts to preserve capitalism by reining it in.



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