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How Progressives Take Back the Constitution

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University of Chicago Law Professor Geoffrey Stone and I have both come to Huffington Post many times in recent years to talk about the U.S. Constitution, how to respond to attacks by Tea Partiers and other conservatives on our Nation's founding charter, and how the Constitution is a progressive document. This week, we have also taken to the pages of Democracy Journal to debate each other about our respective views of the best way to go about this work.

Professor Stone is joined in his side of the debate by UNC Professor Bill Marshall. On my side is University of Virginia Law Professor Jim Ryan, the author of a paper called Laying Claim to the Constitution: The Promise of New Textualism, which my organization, Constitutional Accountability Center, released recently as a discussion draft.

As Jim and I explain in our contribution to the debate, progressives have been maneuvered by conservatives into running from, rather than embracing, the text and history of the Constitution. For decades, conservatives, led by Justice Antonin Scalia, have been asserting that judging is "easy as pie": you simply follow the text of the Constitution, and you reach conservative results. The progressive response has been to attack originalism, Scalia's purported judicial method, and to explain that judging is much more complicated than Scalia makes it seem. This hasn't worked, leading to polling showing that the public, by overwhelming margins, favors conservative judges over progressive judges in interpreting the law and the Constitution

What progressives need to do, we argue, is to spend a lot less time and energy talking about how little the Constitution answers and how hard judging is and to spend much more time and energy taking on Scalia and other conservatives about why they are wrong about the Constitution itself. Rather than arguing that the Constitution is vague and ambiguous, we should be arguing that it is clear and progressive, particularly when due consideration is given to the Amendments adopted over the past 220 years.

Professors Stone and Marshall think we are wrong. They argue that "liberals should not pretend that honest answers to vexing constitutional questions can be gleaned simply by staring hard at an ambiguous text." While admitting that their argument in favor of a celebration of the need "for judges to bring constitutional principles to life in an ever-changing and ever more complex society" is a "harder sell to the public," they assert that only their approach represents a "principled understanding of the Constitution."

I won't try to win this debate in a blog post. The intellectual arguments behind the sound bites on both sides are serious and should be considered in full. But I do want to flag the debate for Huffington Post readers because Professor Stone and I agree about at least one thing: conservatives control the debate over the Constitution and the courts right now to the considerable detriment of progressives. And I will take the liberty of including the final paragraph of Jim's and my contribution to the debate:

In our view, to be legitimate and accepted as such by the public, constitutional interpretation must be grounded, first and foremost, in the Constitution's enacted text. Unless and until liberals accept that basic proposition, we will lose arguments with conservatives over the Constitution and the courts. The public will continue to favor conservative judges when seeking fidelity to the Constitution, and we will continue to miss critical opportunities to explain to America in plain and compelling terms why the Constitution is in its most vital respects a progressive document. It's time for progressives to take back the Constitution.

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