*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Progressive litigators who have to deal with the Supreme Court unsurprisingly count votes and understand that to win there they have develop arguments that have some chance of getting votes from Justice Kennedy and perhaps Chief Justice Roberts. That leads them into what I have called a defensive crouch: Maybe we can win by showing how what we think the Constitution means in this specific case is consistent with what Justice Kennedy has said the Constitution means in some other case.
For a litigator that is a sensible tactic (though not the only one – sometimes you can ask for the sky and let the justices think of themselves as moderates by coming up with a solution that gets you pretty much what you wanted in the first place). And, to the extent that scholars think of themselves as providing reflective or theorized arguments that litigators can adopt, it is also a sensible course for some progressive scholarship – even if that scholarship sometimes seems to treat Justice Kennedy implausibly as having especially deep insights into what the Constitution really means.
But defensive crouch arguments are not the only ones worth making. Rousseau described his project as taking people as they are and laws as they might be. There is a similar project for progressive constitutional scholarship of taking the Constitution as it is and the Supreme Court (and Congress and the polity) as it might be. I call that the project of utopian constitutional theory.
Readers can generate for themselves examples of utopian constitutional theory. Consider affirmative action: A robust – utopian – defense of affirmative action might sound in restorative justice, reparations and distributive justice. And, indeed, before the Supreme Court forced progressives into the defensive crouch of justifying affirmative action as promoting a valuable diversity in society’s institutions, progressives did indeed defend affirmative action on those broader grounds. Instead of developing increasingly ingenious articulations of the diversity rationale for affirmative action, utopian progressive theory might return to these earlier themes.
Similarly with campaign finance. Because the Supreme Court has held that regulation of campaign finance can be justified only by showing how the regulations reduce the risk of corruption, progressives like Larry Lessig and Zephyr Teachout have come up with sophisticated accounts of what corruption actually is. Nothing wrong with that, but there is another path to take: Work out an account of political equality that makes strict regulation of campaign finance consistent with the account, or even required by it. That is not going to be easy, in my view, but – defensive crouch aside – it is pretty clearly worth doing.
There are lots of other areas in which utopian constitutional theorizing might be useful. For me a prime candidate would be developing a theory of constitutionalized social welfare rights, others might be more interested in developing a theory of constitutionalized environmental protections. Both, of course, would reach well beyond where the Supreme Court currently is.
And that raises another question: In what sense is this sort of project one in constitutional theory rather than, for example, in (merely) political theory? How could these theories be connected to the Constitution?
The first point to make here is that the Constitution is not, contrary to Chief Justice Charles Evans Hughes, only what the Supreme Court says it is. The Constitution is also what the American people say it is, as the scholarly literature on how social movements shape constitutional law demonstrates. Of course one has to make some lawyerly moves to connect the utopian claims to the Constitution, but – at least for the topics I have suggested – those moves are not esoteric; indeed they are pretty straight-forward. Invoking the way the language of “equal protection of the laws” has been used in U.S. political discourse, for example, would go a long way to connecting the utopian accounts of affirmative action, campaign finance and social welfare rights to the Constitution.
Second, because the Constitution is “owned” by the people, we can look to the ways in which constitutional language has figured in political discourse in the United States to find the connections we need between the utopian accounts and the Constitution. In all the examples I have used, and I am sure in many others, we can find a reasonably robust tradition of constitutionalized public discourse. And, often enough, everyone knew that the Supreme Court then in place – the Supreme Court as it was – was not going to adopt the utopian arguments. That did not stop people from saying that the Constitution allowed or required what they were arguing for. The fact that the American people have defended seemingly utopian programs in constitutional terms puts the programs within the domain of the Constitution.
Doing utopian thinking of course requires adopting a long time perspective. The Supreme Court as it is – and as it is likely to be for the next how-many years – is not going to endorse utopian interpretations (although we should not discount the possibility that one or two justices might do so). But, without disparaging the admirable efforts of litigators to squeeze out of the Supreme Court as it is the victories they can achieve by taking a defensive crouch, we can also build a repertoire of arguments about the Constitution as it is and the Supreme Court as it might someday be.