No. 23 (1) June 2005 How to Think about Constitutional Change Part I: The Progressive Vision Michael S. Greve Liberal academics and newspapers have proclaimed that the Rehnquist Court and conservative intellectuals are attempting to resurrect a pre–New Deal “Constitution in Exile.” This absurd campaign illustrates the intellectual impoverishment of what now passes for “progressive” constitutional thought. Still, liberals are right in suggesting that conservatives may not have thought as sharply and constructively about constitutionalism as they should. This Outlook discusses the liberal constitutional project. The next Outlook will outline a conservative response. Ye Olde Newe Deale Law School, are themselves engaged in an ambi- tious project to imagine a “Constitution in 2020.”3 AEI’s Federalism Project has risen to fame. A long Jeffrey Rosen’s omission of this context not only article in The New York Times Magazine (April 17) casts the supposed exilists in a false light but also identifies the author of this publication as a leader obscures puzzling questions about the progressive of the “Constitution in Exile movement,” which agenda. Little in the record of judicial nominees— Federalist Outlook believes that the New Deal should be overturned and virtually nothing in the record of the Rehn- by judicial fiat.1 The movement, the article says, quist Court—suggests an incipient return to the has gained many adherents among federal judges. pre-New Deal Constitution. Equally perplexing, Conservatives no longer set their sights on Earl the Left not so long ago appeared to have surren- Warren but on FDR, and they may be only a few dered at the economic front, preferring instead to appointments from total victory. Who needs Social emphasize issues of race, sex, and homosexuality. Security reform? If Greve et al. have their way, Why now, when most Americans born after the the beast will be declared unconstitutional. baby boom probably think that the New Deal was We may hear more about the “Constitution in a rock band, has it come to occupy center stage in Exile” from Democratic senators on the Senate the liberal imagination? Judiciary Committee, who rarely pass up a talking Every thought is a child of its time. Much like point delivered by the New York Times even when conservative “originalism”—that is, the idea that it must be stripped from a largely fair-minded arti- the Constitution ought to be enforced more or less cle. But in truth, there is no plan to topple the as written—came about as an attempt to constrain New Deal by judicial decree. Few conservative or the Brennan Court, the “Constitution in Exile” libertarian scholars were familiar with the “Consti- talk is inseparable from the brutal fight over judi- tution in Exile” prior to its recent outing.2 The cial nominations. On every issue of interest to vaguely sinister phrase has been popularized by self- the Left—abortion, affirmative action, the death proclaimed progressives—who, under the auspices penalty, homosexual rights, campaign finance of the American Constitution Society and Yale law—the supposedly conservative Rehnquist Court has done as progressives desire. Liberalism’s theoc- Michael S. Greve ([email protected]) is AEI’s John G. Searle Scholar and the director of its Federalism Project racy scarecrow is beginning to look ridiculous, and (www.federalismproject.org). there is the added problem that decades of liberal 1150 Seventeenth Street, N.W., Washington, D.C. 20036 202.862.5800 www.aei.org - 2 - noodling have failed to unearth a principle to justify dictate acceptance. We should nonetheless resist further Roe v. Wade. For purposes of liberal mobilization, the best departures from the Constitution. The difficulty, though, part of wisdom may be to marry one fading icon (Roe) to is obvious. If one accepts the New Deal transformation, another (FDR) in the hope of sustaining a progressive then what is left of the originalist commitment? Perhaps constitutional tradition. the best response is that the alternatives—a suicide assault Not every child of its time, however, is a bastard. Origi- on the New Deal on the one hand, an infinitely mal- nalism merits serious intellectual engagement regardless leable, “living” Constitution on the other—are even less of its political context, and the same is true of the attractive. Originalism is the “lesser evil,” as Justice Scalia New Deal revival. Bruce Ackerman (Yale Law School) has put it.6 But while that may ultimately be right, a has developed his constitutional theory in an ambitious, lesser-evil theory depends on a juxtaposition with its rewarding series entitled We The People. Cass Sunstein competitors. Viewed and attacked in isolation, it simply (University of Chicago Law School) has made his case for looks implausible. And it will always be attacked in isola- a New Dealish Constitution in a torrent of forceful books tion: witness the “Constitution in Exile” campaign. and articles, such as The Second Bill of Rights: FDR’s Unfin- Progressives have put the New Deal front and center ished Revolution and Why We Need It More than Ever because originalists must forever tiptoe around it. But that (2004). Many conservatives are inclined to dismiss this advantage comes at a price. First, progressives must defend work with a complacent sneer: “It’s not originalism.” No, the New Deal as a matter of substance. If the policies it is not. But new New Dealers believe that they have dis- were worthless, why revamp the Constitution to accom- covered a political and intellectual weakness in the con- modate them? Second, progressives must defend the servative armor. They may be right. New Deal as a democratic constitutional change. If the Lochner Court simply capitulated to a mob in 1937, that Originalism’s Open Flank might demonstrate the inevitability of constitutional transformation—but hardly its legitimacy. Working Conservatives are committed to originalism. But the con- through this two-pronged project has proven a surprisingly stitutional understanding clearly, and radically, changed in demanding task. Let’s start on the policy side. 1937 in the aftermath of Franklin Delano Roosevelt’s “court packing plan.”4 So what is an originalist to do? Monopoly at Every Level The traditional answer, peddled by the New Dealers themselves and by their modern heirs (many of them con- One of the New Deal’s “constitutive commitments,” servatives), is that the pre–New Deal Lochner Court was Cass Sunstein has written, was against monopoly and as wrong as Roe v. Wade, and for the same reason: the monopolization. True, the New Dealers romanticized invention of “substantive due process” rights that have no small business. They sought to protect local merchants basis in the Constitution. But the New Deal notion that a against then-emerging chain stores, and they were critical few Neanderthals in black pushed their laissez-faire con- of standardized contracts through which large enterprises victions to the constitutional breaking point has been conduct consumer transactions. But that is chiefly because thoroughly discredited, especially by liberal scholars.5 the New Dealers had a pre-modern economic model: give The revisionists’ persuasive showing that the Lochner us low volume and high transaction costs, and maybe we Court was well within the bounds of the traditional can haggle our way out of the depression. In general, the understanding blocks the convenient position that the contention that the New Deal stood against monopoly is New Deal and its Court restored a recklessly endangered 180 degrees off. Monopoly at every level was the organiz- constitutional balance. The New Deal was a genuine ing principle of the New Deal. transformation—a “constitutional moment,” as Ackerman Nebbia v. People of New York (1934) is widely viewed calls it. And if conservatives concede the legitimacy of as a precursor to the New Deal revolution. Here, the that constitutional transformation, how can they contest Court sustained a state law and regulation criminalizing other transformations, past or proposed? the retail sale of milk at a price below nine cents per Justice Antonin Scalia, originalism’s most resourceful quart. The point was to “stabilize” the milk market—in defender, has declared himself a “faint-hearted originalist.” other words, to prop up dairy farmers and distributors. One constitutional transformation is probably one too The pro-cartel position of Nebbia had been urged two many, but precedent and political realities at some point years earlier in Justice Louis D. Brandeis’s dissent in New - 3 - State Ice Co. v. Liebmann (1932), which celebrated the of the nation’s raisin market, meaning that the monopoly states as “laboratories of democracy.” The Oklahoma ice profits were reaped almost entirely in markets outside industry had helped itself to a government scheme of California. The Supreme Court deemed this exploitation price fixing and output restrictions. The famed Brandeis a splendid exercise in federalism and, under the epony- dissent defended this “experiment” (which we don’t need, mous Parker doctrine, immunized state-sponsored cartels because we know it to be destructive) as an attempt to from challenges under antitrust and constitutional law. stabilize an industry that tends to monopoly because it has low entry costs—a contention that qualifies as a howler The Constitution, My Dear even by the distinctly modest standards of New Deal eco- nomics. In any event, the Oklahoma law did not prevent And on it goes, ad nauseam. Virtually all of the Supreme monopoly; it promoted it.7 Court cases surrounding the New Deal involved United States v. Carolene Products (1938) originated government-sponsored price fixing and output restric- the dual standard of judicial review that is the basis of tions. The National Industrial Recovery Act enabled post–New Deal constitutional law: essentially no scrutiny industries across the American economy to lock them- for economic regulation, and heightened scrutiny for selves into cartels, until a unanimous Court invalidated matters listed in the famous footnote four of the opinion the act in the 1935 Schechter case.