The U.S. liberal and progressive legal community’s response to George W. Bush’s 2001 ascension to the American presidency resulted in the formation of the American Constitution Society (ACS). Overshadowed in the public realm by the conservative Federalist Society, ACS provided a focal point for liberal/progressive resistance to originalist and other conservative jurisprudence. ACS came into its own with the election of Barack Obama—many of its members took positions in the new administration.
During 2009, the publication of Keeping Faith With the Constitution (KFWC) represented a focused statement of the jurisprudence undergirding the legal left in the U.S. KFWC‘s three authors also have Obama administration connections; Liu was nominated for a federal court of appeals seat, Schroeder took a senior position in the Justice Department, and law professor Karlan was reportedly considered for the Supreme Court seat that went to Justice Sotomayor. Oxford University Press will re-publish KFWC this fall, giving it a wider audience and helping brand it as the standard-bearer for the left.
In KFWC, Liu, Karlan, and Schroeder argue for an approach to American constitutional law that they call “constitutional fidelity.” They contend:
To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution’s meaning and democratic legitimacy over time.
They believe that “the overarching question [that constitutional fidelity] poses is not simply how the Constitution would have applied during the Framing era, but rather how it should apply today in order to preserve its meaning and authority in the light of evolving precedent, historical experience, practical consequences and societal change.” KFWC provides a rationale for both limited government and a government muscular enough to address the needs of a growing nation and economy.
They believe that constitutional fidelity underlies the commitment to equality found in Brown v. Board of Education, the landmark American school desegregation case, and stands as the best expression of how judicial and non-judicial interpreters of the Constitution have operated in the U.S. Within the perspective of constitutional fidelity, they examine the Reconstruction constitutional amendments and the New Deal-based transformation of constitutional law, as well specific illustrations provided by the War on Terror for separation of powers, voting for democracy, and criminal procedure. KFWC also argues for a nuanced view of liberty and privacy jurisprudence that both goes beyond abortion and appreciates limits on the power of the state.
Unfortunately, KFWC does not take up the religion clauses of the First Amendment. Yet it is intriguing to speculate on how constitutional fidelity can be applied to free exercise and establishment questions. While it could justify a rebuilding of the wall of separation between church and state, it need not do so. The secular state created by that wall could be succeeded by a religiously neutral state that enables full participation by citizens of faith, though many, but not all, of ACS progressives would go kicking and screaming into that new order.
Some Christians have been taken with conservative jurisprudence that is tied to an original expected application of the Founders’ words in the constitutional text. They will probably view KFWC with considerable hostility. For them, this book might be just another exercise in sociological law that ignores moral absolutes.
However, KFWC makes room for moral principles like equality and liberty as well as limited government. As retired Justice David Souter made clear in a recent commencement address at Harvard, a commitment to interpreting such principles expresses reasoned legal method, rather than just a sociological arbitrariness. Some Christians argue that KFWC‘s progressive reading of the law expresses something of the justice found in God’s kingdom. Many mainstream and progressive Christians can support a progressive jurisprudence that is a little less tied to liberal individualism. Progressively promoting substantive equality and liberty can find good Christian roots in the Old Testament, Jesus, and Paul. For some, the New Deal-related change in the ability of Congress, which enacts legislation to promote a general welfare in which older and vulnerable folk can be cared for within the structures of society, as consistent with a generous society and enabling a community that looks a little more like the kingdom of God envisioned in Isaiah and looked to by Jesus.
Yet, some evangelicals and judicial originalists find no notion of liberty that supports a right to privacy in the text of the Constitution. But within the practice of the craft of constitutional law, there is room for dialogue among the opposing camps. Is the abortion privacy decision of Roe v. Wade even understandable apart from earlier decisions of Pierce and Yoder, which carved out a realm of family as separate sphere that should not be dominated by government? Abortion jurisprudence may at least have sympathies with the Reformed and Catholic notions of subsidiarity and sphere sovereignty. Indeed, Griswold, which struck down a Connecticut law restricting contraceptive sales, grounded its privacy in the couple—even if a subsequent contraceptives decision interpreted this right in terms of an individualism that Roe and its progeny have followed. This individualism, as Michael Sandel has noted, practically deifies the individual and his or her notion of the good, as it deprives societies of the ability to develop and legislate common goods. Though KFWC might not admit it, the existing legal tradition has differing strands within it that can extend or pull back current political liberalism’s individualism and secularity.
KFWC embraces both the individualism of Roe and the group-awareness of the affirmative action and school desegregation decisions. However, their conservative opposites embrace the individualism of economic takings jurisprudence and a broader majoritarianism geared toward the controlling of pornography or sexual conduct. Christians and others of good will might critique this libertarianism of the left (think sex) and of the right (think markets) with a call for a more flexible approach that allows a more affirmative role for the state in enabling a society’s multiple communities to engage their differences and facilitate common good. Without going so far as to bind ourselves to any form of natural law, we can still talk to others as we work within existing political settlements to enable the different responsibilities that we find in many areas of our common lives. Christians can constructively engage KFWC at this point.
Symbolic visions of the good society or of the kingdom drive significant aspects of a society’s politics, jurisprudence, and theology. As a progressive vision, KFWC ties and even incarnates its vision to the life of a concrete community. In addition to intellectual outlooks, praxis and legitimacy in the broader society play important roles in establishing public justice. Indeed, rather than surrendering to autocratic commands of a sovereign, progressives believe that legitimacy with a society’s populace is an important facet of the role of law in a broader democratic society. While some Christians are comfortable with law enacting the earlier commands of a sovereign, others who take a plural society and democracy more seriously cherish an approach to law that values the diverse politics and conversations of a society. These conversations are critical to maintaining the legitimacy of that society’s law and politics to all of the groups and spheres of a differentiated society—including Christians, Jews, Buddhists, Muslims, Hindus and atheists.
In the words of a Billy Joel song, the stranger (as some in our less-than-civil society view their liberal or conservative foe) “is not always evil and is not always wrong.” We must continue conversation in our politics and to not exclude others from the common public table as we contend for our own views of the common good. Progressive views of the law have points of contact with the Christian tradition and, at times, argue for a law that affirmatively furthers Christian visions of justice in the kingdom of God.
KFWC‘s attempt at liberal consensus may still be too individualist in its grounding. But it also may enable a society to provide for the safe inclusion of all its members (if not their flourishing) in a way that restrains the domination of racial and ethnic groups, families, labourers, and those of varying religious faith by corporations unleashed by both market fundamentalism and the xenophobic passions of those seeking a more homogeneous and hierarchical society. Implementing kingdom principles will not come by way of a value-neutral liberal nirvana, but this work can progressively include commitments to liberty and equality that find common cause with Isaiah, Jesus, and Paul.