Robert Post and Reva Siegel*
We applaud David Barron’s fine contribution to the Harvard Law & Policy Review Online.1 We have also made a special point of emphasizing that judicially enforceable rights are of great importance.2 In the United States they play a special role in enabling popular constitutionalism. Any substantive constitutional vision, even that of democratic self-governance, requires for its realization courts, rights, and the rule-of-law.
We write only to register a reservation, and some puzzlement, about the framework Professor Barron uses to characterize the work of progressive constitutional law scholars. He seems to divide all commentators into two camps; we must all be either “Anti-Court” or “Pro-Substantive.” We think that this dichotomy confuses more than it reveals. Any vision of constitutional law entails commitments to particular substantive values and to some set of institutional arrangements to vindicate them. For this reason one can have “substantive” positions that require judicial deference, and, conversely, “substantive” positions that demand vigorous judicial intervention.
Professor Barron’s dichotomy invites progressives to choose a constitutional vision that is either “substantive” or “process-based.” But posing the choice in this way obscures the question of how persuasive, substantive constitutional views–progressive or otherwise–come into being and assume legal authority. History shows that courts interpret the Constitution in dialogue with the political branches and the people; at different junctures in our past each has taken a leading role. Courts can interpret the Constitution in ways that break from past or prevailing understandings; but recognition of judicial judgments and vindication of the principles they embody ultimately requires popular embrace.
In fact, we have in press an article arguing that “originalism” has proved so strikingly successful as a jurisprudence precisely because it functions as a powerful vehicle for expressing the substantive political commitments of the mobilized right.3 Originalism is the right’s living Constitution: it provides a constitutional narrative in which the right can impugn the authority of particular decisions that offend contemporary conservative values. The left does not appear now to have a similar set of mobilizing political commitments, much less a constitutional narrative through which to vindicate them.
In the recent Roberts and Alito nomination hearings, for example, the left was forced to defendstare decisis and the independence of the judiciary in ways that were entirely divorced from a vibrant political vision,4 and as a consequence the left was defensive and unsuccessful. Our forthcoming article ends with the thought that progressives need:
a vision of collective life able to generate constitutional claims of equal motive and authority, whether those claims sound in the register of restoration or redemption. When progressives have such a vision, it will arouse them to mobilize in defense of their understanding of national identity, which is to say in defense of their idea of the Constitution. When progressives have such vision, it will animate and orient the development of a constitutional jurisprudence adequate to its vindication in both professional and popular arenas.5
Serious substantive constitutional commitments require concomitant popular support. The left seems to have lost track of this point. A framework that invites progressives to choose between substance and democratic self-governance threatens to lock in the left’s romance with the Warren Court, which celebrates courts in opposition to popular opinion. The focus on courts, to the derogation of politics, has distracted the left from the task of developing a political vision capable of generating broad popular support.
We agree, of course, that courts are important and necessary, and Barron’s reference to national security law is an outstanding example of this fact. But we also need an analysis of how courts actually function. Progressives are doomed to irrelevance if we think we can continue to argue “the law” to a bench increasingly dominated by judges appointed by the likes of the Bush Administration. If progressives want to appeal to courts to enforce a progressive vision of substantive law, they need to persuade the American people to elect a President and Senate who will confirm judges whose vision of the law is resonant with progressive values and its substantive commitments.
Progressives should not, therefore, frame their task as an “either-or” dichotomy., Progressives need to press the case for rights that reflect a substantive, progressive vision of the Constitution, and they must also mobilize support for that vision so that it can actually find fulfillment. Practicing constitutional law always requires balancing these two necessities.
Barron does make an excellent point about Goodridge: sometimes courts do act “in advance of political will.” There is a growing and fascinating literature about what happens when courts act in this way, particularly under state constitutions.6 Sometimes, as in Hawaii, it leads to severe backlash.7 Sometimes, as in Vermont, compromise produces a consolidated public opinion that has shifted significantly to the left.8 And sometimes, as in Massachusetts, proleptic judicial decisionmaking may succeed in consolidating extraordinary progressive gains.9 In any given case, the outcome will depend upon particular circumstances, including the likelihood of moving public opinion in a progressive direction.
These matters need to be carefully and contextually studied. Insisting on separating law from politics in order to preserve the purity of the law’s substantive commitments will do no good if it causes us to ignore the sources of the law’s actual legitimacy. Only in legal process textbooks is law about contentious matters wholly independent of politics. This is not simply a regrettable reality; it is a democratic good. Democracies require the rule of law — as well the kind of dialogue among courts, the political branches, and the voting public that makes the rule of law responsive to the community. No progressive would want to live in a state where the authority of “We the People” refers only to the professional opinion of judges.
* Robert Post is the David Boies Professor of Law at Yale Law School. Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School.
[1] See David J. Barron, What’s Wrong With Conservative Constitutionalism? Two Styles of Progressive Constitutional Critique and the Choice They Present, 1 HARV. L. & POL’Y REV. (Online) (2006), http://www.hlpronline.com/2006/07/barron_01.html.
[2] Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 CALIF. L. REV. 1027 (2004).
[3] See Robert Post & Reva Siegel, Originalism as a Political Practice: The Right’s Living Constitution, 75 FORDHAM L. REV. (forthcoming 2006).
[4] See Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, YALE L. J. (The Pocket Part), Jan. 2006,
http://www.thepocketpart.org/2006/01/post_and_siegel.html.
[5] Post & Siegel, supra note 2, (manuscript at 38, on file with authors).
[6] See, e.g., Douglas S. Reed, Popular Constitutionalism: Toward a Theory of State Constitutional Meanings, 30 RUTGERS L.J. 871 (1999).
[7] Id.
[8] See WILLIAM N. ESKRIDGE, EQUALITY PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS (2002).
[9] See Carlos A. Ball, The Backlash Thesis and Same-Sex Marriage: Learning From Brown v. Board of Education and Its Aftermath, 14 WM. & MARY BILL RTS. J. 1493 (2006).