The Progressive Constitution Versus the Real Thing

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The Progressive Constitution Versus the Real Thing

Published: Monday, August 9th, 2021 @ 6:34 pm
By: John Locke Foundation ( More Entries )

Publisher's Note: This post appears here courtesy of the John Locke Foundation. The author of this post is Mitch Kokai.

Elle Reynolds explains in a Federalist column what progressives mean when they say they love the Constitution.

Many Americans are rightfully indignant at seeing their country and its founding principles belittled and ostracized in ways big and small like this. Some are also wondering where it came from. Why such a sudden and dramatic rejection of basic American ideals? Can't we all agree on the Declaration of Independence?
This rejection of the American founding didn't come out of nowhere - it's been brewing and building for over a century. Leftists who engage in this kind of faultfinding do have a constitution to which they proclaim fidelity, and which they believe should rule America. It's just not the original Constitution. ...
... Despite its changes, conservatives still look to the 1788 document as the Constitution with a capital C. Its amendments have accented, not replaced, it. It is not simply "step one" in an endless process of revamping. It's more like a completed house that gets its plumbing redone or its carpet replaced as needed, than an empty skeleton of lumber that still needs to be filled in.
In contrast, that latter visual is what Yale Law professor Jack Balkin submits in his theory of "framework originalism" - the idea that the Constitution is simply a "framework" that "Americans must fill out over time through constitutional construction." This highly malleable, relativist view of the Constitution has enabled leftists over the years to use amending periods as constitutional rebirths, not just birthdays.
Another Yale Law professor, Bruce Ackerman, describes "constitutional moments" through which the sovereignty of popular opinion can create revolutionary constitutional revamps. He identifies the 1860s, the 1930s, and the 1960s as three such moments. ...
... [T]here is a weighty disconnect in the way conservatives and progressives view our constitutional legacy. That's what enables activists on the left to claim their radical agendas fulfill the spirit of the American Constitution, even as conservatives marvel at how far letting men into women's bathrooms is from the vision of 1788.