Two Thoughts About the Future: One Concerning Courts, The Other Geography -- post by David Barron

There seems to me to be some irony in a progressive constitutionalism that
siezes on the political process as the new preferred engine of
constitutionalism at the very moment when progressives seem to have lost
control of that process at the federal level. So I do not think that a
progressive constitutionalism amounts to much if it takes as its abiding goal a
de-emphasis of courts (or even a rasing up of politics). The capital P
progressives writing with Rooselevelt in mind at least had a Congress and an
executive branch that held out some promise of taking up the plan. I also think
that a key way in which the constitutional culture develops is through the
articulation of constitutional norms by courts - and while I realize that this
"fact" is a product of past court-centered practices, I do not believe that it
is likely to change much in the next 20 years. So I think, following Peter R.,
a major focus must be on articulating a progressive constitutional voice that
could be articulated by courts -- if even in dissents. Reflecting on my own law
school education, it seems to me that one of the most signficant developments
jurisprudentially has been the emergence of textualism and orginalism as
respectable jurisprudential claims that attract students and intellectual
energy in law schools and among the informed public. There have been
substantial efforts to refute these modes of arguments by progressives and they
have made some headway. But my sense is that the next 20 years - if dominated
by conservative judges as seems entirely possible -- is likely to produce new
jurisprudential modes of argument that will be designed to supplant texctualism
and originalism as the conservative philosophy. My guess is that at present
those modes of argument will be cast as structural claims about the
constitution's general preference for institutional autonomy over individual
rights. The more sophisticiated conservative authors already seem to be
pressing these types of arguments on behalf of outcomes as disparate as Dale,
the new federalism, and the president's prerogatives in the war on terror. For
a sampling, see recent pieces by Wilkinson. I expect these modes of argument
to get a lot of play in the law schools and to be very attractive to students,
and so I think a key task of progressives over the next 15 years will, as a
defensive matter, be to debunk or lay claim to this mode of analaysis. Work by
Bill Marshall shows the promise of doing just that and I think we ignore doing
this kind of work at our peril.

If the court/politics distinciton is not the right framework for structuring
our thinking about where we should be going, what is? My suggestion would be to
focus on geography. The old progressives were very much aware that the
constitution needed to be updated to account for an increasingly urbanized and
nationalized population and that it needed to be made responsive to the kind of
more urban and national society American was becoming. Reynolds v. Sims is but
the capstone or exemplar of that effort. But much of the progresve
constitutinal legacy could be understood in this way, I think. Our condition
is different and harder. It is one, I think, that is marked most directly by
the rise of suburbia and now exurbia within a newly gloablizing order. How
should progressives want the constitution to be made to respond to that
situation? We can't simply argue that we need to make the constitution more
responsive to these trends. That's why our situation is harder than the one
faced by the progressives of old. After all, neither globalization or
suburbanization points in a progressive direciton in the way that the move from
a rural to an urban society did. Still, one area surely concerns property
rights in land and the constitution's toleration of the regulation thereof.
Any effort to alter current decentering trends which by all accounts have
negative effects on progressive politics will require a degree of land use
regulation that it is not clear curreent views of due process or takings will
permit and that conservatives wil make a real effort in the future to ensure
are not permitted. We need to think of ways of showing how the conservative
progressive vision precludes us as a nation from responding to the deleterious
consequences of current spaital and demographic trends. Consistent with this
approach would be a renewed emphasis on the state of current state
legislatures, which by most accounts are really not suited to assume the kind
of planning tasks that a progressive vision would require. Should not the
renewed interest in federalism provide progressives with an opening to really
challenge the way state legislatures and executive branches are now
configured? Might we want to put some greater energy into thinking of state
constitutional referenda and the like that would help push states along more
progressive paths? And might we not also want to begin to emphasize the
dangers of balkinzation and to think of creative ways of thinking about a
decentralization that still binds the union. How, given the red/blue divide,
can we remain a union? Saenz, in this respect, seems likely to be a font of
important progressive constitutional jurisprudence, perhaps even more so than
Wickard v. Filburn was a generation ago. Similar kinds of questions need to be
directed at the globalizing trends. What is a progressive view of the role
that international institutions should have in shaping lawmaking at home -- be
it NAFTA tribuals or the WTO or international intellecutal property treaties?
And what should be the role of international lawmaking on our own understanding
of the constitution? These questions in and of themselves are not that novel,
but I do think it would be helfpul for progressives to see
themselves at present in a moment in which the spatial ordering of the society
they inhabit is changing dramatically from the ordering that produced prior
progressive constitutinal visions. Reflecting on that fact, I think, may be
helpful in structuring our thinking about what kind of constitutionalism we
should want to be making for the future. Or, I want to suggest, it would be more
helpful for structuring our thinking than would the courts/politics framework.

-- David Barron