Thursday, July 23, 2015

The Great Refusal: Liberals and Grand Constitutional Narrative

This paper by Ken Kersch is the seventh from the first-ever WLR Online Symposium. It comes out of the conference November 7-8, 2014 at the UW Law School on "Is it Time to Rewrite the Constitution?" presented by the Wisconsin Center for the Study of Liberal Democracy.
"Is it time to rewrite the Constitution? Unlike the more delimited question of whether amendments are in order, this one suggests systemic failure, foundational mal/misadjustment to core purposes or objectives, or perhaps, less desperately, a simple conviction that, under a different framework of fundamental law, we could do better. It also suggests that the Constitution as currently written is the chief barrier to achieving our most important objectives—what Larry Solum calls 'constitutional fatalism.' I question this fatalism. [. . .] In a recent article in the BU Law Review, without taking the position against either the desirability or potential effectiveness of Article V amendments to remedy current constitutional deficiencies, I argued that the Constitution, as currently written, provides much greater opportunities for liberals to achieve their political objectives than many of them seem to realize—that, using Solum’s terminology, the 'actual' (i.e., currently existing) and 'possible' constitutions are not identical. I argued, moreover, that many of the successes of the conservatives in contemporary politics have stemmed from their enthusiasm for and talents in mobilizing constitutional arguments in the service contemporary political agendas and causes—in a concerted bid for instituting a 'gestalt shift' or 'constitutional reinscription.' While liberals certainly are forced to make constitutional arguments in courts, and make them on an ad hoc basis in politics, they seem uncomfortable with constitutional argument in the public sphere. Before fatalistically hoisting the banner for rewriting the Constitution, they might reflect on their singular debilities/ineptitude in this area. In this short Essay, I’d like to go beyond my BU Law Review article, which detailed the mechanisms of conservative successes in marshaling constitutional arguments in the public sphere, to reflect upon the wellsprings of liberal failures. I emphasized in the BU Law Review that conservatives have been energetic and creative not simply in advancing theories of constitutional interpretation—most famously, originalism—but in embedding those theories within compelling narrative or stories about the nature and trajectory of U.S. constitutional development, and, indeed, of the history of the country itself. Liberals have, in recent years, failed miserably in this regard, and it is worth asking why.
Ken Kersch is a Professor in the Department of Political Science at Boston College.