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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 3 of 4 -- Yet others argued that the Constitution should be seen as offering an expansive vision of a better life for the broader community. Cass R. Sunstein, a law professor at the University of Chicago, spoke of ''economic rights'' - the right to a job with adequate pay, to health care, to a home and an education - and recommended the kind of campaign advocated 61 years ago by Franklin Delano Roosevelt in his call for ''a second Bill of Rights.'' Yale Law professor Bruce Ackerman advocated a ''citizenship agenda.'' The ''citizenship clauses'' of the 14th Amendment (which state that ''the privileges and immunities'' of citizens shall not be abridged), for example, could be invoked to support for ''stakeholder'' grants of $80,000 to every citizen at birth in order to guarantee economic opportunity. Others saw potential political appeal in an immediate voting rights campaign to correct flaws in the electoral system.

Of course, all of this can be easily caricatured by conservatives, with their ready complaints about ''legislating from the bench.'' But while there are certainly those on the left who look for inspiration to court rulings like the Massachusetts Supreme Judicial Court's decision last year on same-sex marriage, there are also those who advocate for a ''popular constitutionalism,'' which seeks to revive the tradition of Jeffersonian democrats and early-20th-century Progressives, who distrusted the power of judges and pushed for legislative victories. In recent years scholars such as Mark Tushnet of Georgetown University and Stanford Law dean Larry D. Kramer have dusted off the argument that, as Felix Frankfurter put it in the 1920s, ''the real battles of liberalism are not won in the Supreme Court.''

Tushnet, author of ''Taking the Constitution Away from the Courts'' (1999), has urged progressives to rediscover ''the dignity of legislation.'' He argues for a populist politics in which the citizenry rallies around the highest principles of the Constitution's preamble and the Declaration of Independence, bringing pressure to bear on legislators and other elected officials. Indeed, Tushnet questions the very notion of ''judicial review'' - the power of courts to be the final authority on the Constitution.

(Tushnet was not at the Yale conference, but his influence was felt. At one point Stanford law professor Kathleen M. Sullivan felt compelled to take what she said might sound like a controversial view: ''Courts are good.'')

While few other scholars go so far as to challenge judicial review, Sunstein does advocate a ''judicial minimalism,'' which he describes as ''giving the democratic process wide room to maneuver.'' After all, he emphasizes, Roosevelt wanted the ''second Bill of Rights'' to be pushed through Congress, not written into the Constitution itself. And at Yale, Sunstein caused a good deal of grumbling by questioning the legitimacy of Roe v. Wade, and even went so far as to suggest that progressives should stop looking to the Warren Court and Brown v. Board of Education as their model for judicial intervention.   Continued...

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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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