E. J. Dionne Jr.’s latest column attempts, in response to some recent arguments of mine, to make the case for a progressive constitutionalism. He wants to take a mile; I will give him an inch.
He begins by casting doubt on originalism.
One plausible progressive response is to see Ponnuru’s exercise as doomed from the start. The framers could not possibly have foreseen what the world would look like in 2014. In any event, they got some important things wrong, most glaringly their document’s acceptance of slavery. Moreover, because the Constitution was written primarily as a foundation for government, it can answer only so many questions.
Sentences two through four are absolutely correct. But originalism is compatible with recognizing the limitations of the Founders. The Constitution creates a lot of space for politics, and the original understanding of it yields more space than contemporary courts often give. It creates a political process that we can use to deal with problems that the Founders could never have foreseen. The Constitution’s provisions can be applied, with no undermining of originalist principle, to new circumstances: The President’s commander-in-chief powers extend to the Air Force even though the Founders did not know it; we can argue about how the idea of “unreasonable searches and seizures” should be applied to cell phones. And of course where the Founders got something wrong, we can amend the Constitution—as we have done, most gloriously, in the cases of the Reconstruction Amendments.
Dionne writes that conservative originalists’ interpretations of the Constitution “often seem to overlap with their political preferences.” That too is true—but it seems to me less of an indictment of originalism than Dionne believes. Certainly if your reading of the Constitution enshrines your party’s whole platform you are doing it wrong, and I think conservatives sometimes do fall prey to that temptation. (I think, for example, that affirmative action is constitutional even if unwise.)
A lot of non-originalist theories, on the other hand, not only have quite a bit of overlap between constitutional interpretation and policy preferences but make it hard in principle to distinguish between the two. If, for example, a judge is to use political philosophy to fill in constitutional terms with the fullest and best meanings for equality and liberty, then the tasks of determining the right policy and interpreting the Constitution become identical.
Finally, there is a good reason for the overlap on the Right: The Constitution is in many ways a conservative document, and originalism a conservative methodology. Those aren’t points that can be proven in a blogpost, of course; suffice it to say that if that’s right, then conservatives should not be embarrassed that insisting on the original understanding of the document will tend to serve conservative ends and subvert progressive ones.
Dionne wants of course to press a progressive reading of the document—and because it deliberately leaves so many matters unsettled, some of the space the Constitution creates can be filled by progressive initiatives. But progressivism does not seem to me as good a fit with the constitutional structure, which is why so many progressives over the years have expressed impatience with that structure. Dionne quotes a Gilded Age journalist who
argued that “imbedded” in the Constitution is “the principle” mandating “the widest distribution among the people, not only of political power, but of the advantages of wealth, education and social influence.”
If the Constitution truly mandates that principle, then an awful lot of political choices are foreclosed. If that principle is “imbedded,” though, it’s imbedded too deep for me to see it.
Update: Steve Hayward comments, with staggering generosity.