Simon Lazarus (National Senior Citizens Law Center) has posted Hertz or Avis? Progressives' Quest to Reclaim the Constitution and the Courts (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:
This article expands on a presentation to an April 15, 2011 symposium of the Ohio State Law Journal on Progressive Constitutionalsm. It is written to be included in the Journal's symposium issue, to be published in the last quarter of 2011. The article reviews progressive responses to conservative theorizing and messaging about the Constitution and the courts, in both academic and real-world advocacy arenas. The article notes how progressive court-focused advocacy has been enriched by creative academic research and thought. But, it concludes, progressive advocacy is no longer well served by what the academic debate has mainly been about: focus on supposedly "conservative" versus "progressive" methods of constitutional interpretation – i.e., "originalism" versus the "living Constitution," and their respective revisions and refinements. The article identifies three new approaches to which progressive advocates on judicial, political, and media fronts are turning to meet new opportunities and, especially, new existential challenges to progressive governance: 1st, emphasizing the threat posed by conservative pro-corporate "activism" to basic, mainly pocket-book needs of "ordinary people;" 2nd, stressing fidelity to the Constitution and democratically enacted laws, and grounding arguments in the content and original meaning of constitutional and statutory provisions (sometimes referred to as "progressive originalism"); and, 3rd, detailing the drastic real-world consequences of conservative and libertarian constitutional (or statutory) interpretations. The article evaluates these three strategies and offers suggestions as to how their impact can be enhanced. The article recommends that real-world progressive advocates cease focusing on "originalism" and other interpretive methodologies. Instead, progressive advocates need to concentrate on arguing directly how and why constitutional text and relevant history support progressive positions, and to harmonize their appeals with the "civics class canon" that guides most Americans' (and judges') expectations about the role of courts in applying the law. In the civics class canon, legal text is the paramount source for interpreting constitutional or statutory provisions, and original meaning is an important, though not exclusive source for interpreting how a provision should be applied to specific cases and circumstances, often unanticipatable by its framers or ratifiers of the provisions in question.
Posted at 7:00 AM