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Senate majority leader Bill Frist (far left) and majority whip Mitch McConnell (far right) meet with judicial nominees Janice Rogers Brown (left center) and Priscilla Owens at the US Capitol on Tuesday. Last week, the Republicans formally began their push to change the rules on filibusters that have prevented some of President Bush's judicial nominees from coming to a vote before the full Senate.
Senate majority leader Bill Frist (far left) and majority whip Mitch McConnell (far right) meet with judicial nominees Janice Rogers Brown (left center) and Priscilla Owens at the US Capitol on Tuesday. Last week, the Republicans formally began their push to change the rules on filibusters that have prevented some of President Bush's judicial nominees from coming to a vote before the full Senate. (Getty Images Photo / Win McNamee)

Constitutional dreaming

Page 4 of 4 -- Pamela S. Karlan, a Stanford law professor, was one of several at Yale who found that notion troubling. ''There are a lot of things that can't be done through the political system,'' she said in an interview. In the 1950s, it was impossible to get school desegregation through Congress, she said. ''The idea that we would have been better off waiting is, to me, kind of loopy.''

. . .

Charles F. Sabel, a professor of law and social science at Columbia Law School, believes a new judicial model may be emerging that steers a pragmatic middle course. Citing court rulings on education reform, such as those in Massachusetts and Texas, he says courts are playing a vital role in insisting on equal rights to quality public education. Yet they are also willing to let legislatures figure out the specifics.

''It doesn't look like the kind of court intervention that was once much beloved by liberals and is now pretty much decried by everybody,'' Sabel says. ''I want courts to do less - less doctrinally - but I think courts have a fundamental role to play in asserting the broad contours of the fundamental commitments of our society.''

Avoiding the creation of a new constitutional doctrine, in fact, is a common desire of cautious judges. Yet when judges find clear language in the Constitution - such as the guarantee found in many state charters that all children are entitled to a free public education - their proper role, Sabel says, is to recognize the core right and then permit experimentation on how to implement that right. And in education reform, he notes, it's not just legislatures but communities that end up working out practical rules - a process he call ''democratic experimentalism.''

William P. Marshall, a law professor at University of North Carolina, says conservatives may have had an easier time taking their ideas about the Constitution to a wider public ''because they appeal to majoritarian interests.'' Yet Marshall believes there are ways for liberals to tap into the American attachment to pure constitutional principles such as freedom of speech and freedom of religion. Even in a nation with a vast majority telling pollsters they believe in God, he says, there are good reasons to argue that the First Amendment requires the separation of church and state. The Framers believed not in protecting the nation from religion, says Marshall, but in protecting religion from state intrusion - or from government favoritism of one religion over another. One of the ''talking points'' Marshall recommends is to insist that keeping government disentangled from religion is not ''anti-religious.''

When liberals and progressives regain national political power, they will surely turn to the courts again to drive at least part of their agenda - just as conservatives seem to want to do now, as they push for judges who share their interpretation of the Constitution. But in the meantime, conservative political success has made a deep impression on the left. Even those who see an important role for judges say progressives need to be ''less court-centric.'' In the near term, of course, they'll have little choice.

Dave Denison, former editor of CommonWealth magazine, is a freelance writer living in Arlington.  

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Former Attorney General Edwin Meese, who promoted the idea of ''original intent'' in a series of documents written by the Justice Department in the Reagan era.
Former Attorney General Edwin Meese, who promoted the idea of ''original intent'' in a series of documents written by the Justice Department in the Reagan era.
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