My contribution to the blog discussion of The Constitution in 2020 is up here, in advance of next week’s conference, on which I’ll be speaking on the individual rights panel along with Rick; I’ll have another post in a few days specifically targeted to First Amendment questions raised by the book. In this post, I focus on the project as a whole, asking whether it is interested in “merely” putting some version of progressive constitutionalism into practice on the courts, or whether it is interested in proposing some genuine new vision of constitutionalism; if it’s the latter, I argue, 2020 is too early a date for this to be possible. Here are some snippets:
There are revolutions, and then there are Revolutions. The big, capital-R type Revolutions are the major sea changes in the way we think and act or in our political structures, the moments in which some concept moves, seemingly overnight, from being unthinkable to being incontestable. Then there are revolutions, in something like the literal sense: the same old turning of the wheel, bringing the return of some set of ideas or political views to dominance, but with the certainty that its moment will inevitably pass, and return, and pass and return, and so on. These small-r revolutions are the stuff of our usual politics. They are one reason (the other may be summed up in a name: Keith Moon) why the Who’s “Won’t Get Fooled Again” still sounds fresh. “Meet the new boss….”
What do the authors of The Constitution in 2020 want: a revolution, or a Revolution? Are they interested in something genuinely new, a real paradigm shift in how we conceive of the Constitution? Or are they really just looking for a regime change, one that will bring them the results they want but that is destined to be merely temporary? . . . . [O]ne gets the sense that at least the editors of this collection would like to frame their project in more Revolutionary terms.
If that is actually the case. then I want to suggest that The Constitution in 2020 is the wrong title for the book. Small-r revolutions, mere turnovers in power, happen relatively frequently. Big-R Revolutions are a different matter altogether. They do not happen often or overnight. Paradigm shifts, like rockslides, only appear to happen all of a sudden. In reality, they develop slowly before they happen quickly. . . .
The Constitution in 2020 looks only a little more than a decade ahead. In that short time, we might see some small-r revolution on the federal courts. We might see the outs become the ins, and liberal rulings might replace conservative ones. But we are unlikely to see any Revolutions in so short a time. Science fiction in the 1950s looked a couple of decades ahead and imagined that we would soon be moving around with jetpacks and serving our robot overlords; by the 1970s, all that managed to happen was that we replaced our eight-tracks with cassette players. The same thing is likely to prove true if we try to imagine a genuinely Revolutionary movement in constitutional interpretation but place it just around the corner, temporally speaking. . . .
If the editors and authors of The Constitution in 2020 want to encourage a real Revolution in constitutional law, . . . they will need to start by rethinking their title. On the other hand, if all they want is a revolution – if all they really care about is the development of more or less the same old ways of thinking, but from a progressive rather than a conservative perspective; if they just want to be the “new boss” for a while, with a corresponding change in outcomes – then 2020 seems like a reasonable date to shoot for. That is time enough for the new guard to take over. Unless we are just motivated by politics and a concern with outcomes in particular cases, though, that does not seem so terribly worthwhile a goal. It is certainly a short-sighted one: if all we are concerned about is a shift in who holds the reins of power, instead of a real shift in how we think about the Constitution, then the “progressive” Constitution of 2020 will be replaced by a conservative Constitution in 2040, and so on. Instead of planning for a constitutional revolution in 2020, perhaps we might instead try to imagine what a real constitutional Revolution might look like – in 2030.
Posted by Paul Horwitz on September 25, 2009 at 02:19 PM
Comments
With the proliferation of submissions to “The Constitution in 2020” and perhaps more to come, instead of a “Revolution” or “revolution,” this may be merely a prelude to a constitutional convention. Such a convention would not be limited, of course, to contributors to “The Constitution in 2020.” I’m sure there are many waiting in the wings, especially outside of academia, to contribute, including from extreme elements. But what about “We the People”? Would such a constitutional convention lead to a new constitution or to a code? I’m thinking of the EU experience. Even though here we all speak the same language (but interpret or construe it differently), there just might result a constitutional “Tower of Babble” as surely consideration would be given to the many decisions of SCOTUS, especially the controversial ones, over its long history. And such a new constitution (or code) might recognize or address the role of originalism in interpreting it over the years following its enactment. Sounds exciting.
Posted by: Shag from Brookline | Sep 29, 2009 7:47:43 AM
Paul, I’m grateful for your very thoughtful and gracious response, and I agree entirely with you that your institutional approach to the First Amendment is indeed an entirely new way to look at one particular constitutional question (or, it may be more accurate to say that at least as to the religion clauses, you have breathed new life into a much older way of thinking about religious freedom).
I suppose that is why I might resist the ascription to your views of the term “Revolutionary.” One other thought occurred to me after reading your response. There are two characteristics of capital R Revolutionaries that fit at least somewhat uneasily with both the substance and the mood of the project that you have developed. First, Revolutionaries generally have a clear, uncompromising and white-hot vision of the way that they want things to be. Second, and perhaps more importantly for purposes of your first post, they want their new world order to take place *now* — they do not want to wait. Change for change’s sake — innovation! — drives their engine and they tend to react poorly if they are told that they ought to wait 20 years for their visions to be realized.
You might reply (plausibly, I think) that not all Revolutionaries think this way. One might be an ‘evolutionary Revolutionary’ — I think that John Adams was described in these terms by Joseph J. Ellis in his recent book on the American Revolution. But I still think that the evolutionary Revolutionary is the exception, not the rule, when one is dealing with the cast of mind that is attracted to Revolutions.
Marc
Posted by: Marc DeGirolami | Sep 28, 2009 7:54:49 PM
Marc, thanks for a typically incisive question. I acknowledge provisionally the point you make in your second paragraph, although I think there is a difference between some huge Revolution occurring, especially overnight, and its actual implementation and entrenchment. And, regarding your last paragraph, I would say my post doesn’t take a stand in favor of Revolutions as such, although in the post I offer at least one rethinking of constitutional law that I obviously have favored in my writing. I think I am asking exactly what it is the authors want, and arguing that if they want something other than a turn at the trough — something that is inevitable given our two-party system and the usual cycles of our history — then, given the need for genuinely revolutionary (big-R, here) ideas to circulate through the profession, it is unlikely they will occur within the next ten years.
Posted by: Paul Horwitz | Sep 27, 2009 3:44:41 PM
Paul — I enjoyed your piece, but I am not certain that I agree with its premise, but this is probably because I do not understand.
The idea seems to be that a capital R Revolution would take about 20 years to implement, while a little lower case r revolution would only take about 10. But I am not sure that is right. Some Revolutions occur very quickly, with or without the sort of strategic planning by academics that this book seems to represent (I have not read the book. I am making this statement based on what I can glean from the essays I’ve read about it). Other revolutions (small r) occur extremely gradually.
Dreaming (or theorizing) about Revolutions or revolutions, on the other hand, can occur instantly. I could go to sleep this evening and have wild and fantastical Revolutionary visions. That takes no time at all — just the wink of an eye.
I guess what I don’t understand is why you think that it would take 20 years to operationalize Revolutionary dreams, rather than 10. Are you making predictions about what the writers of the book are looking forward to in the next years of the Democratic party’s likely continued ascendancy, and do you mean that they ought to aim in a higher, or different, direction? Are you tacitly chastening the book for a ‘now its our turn at the trough’ view? If so, what exactly is necessarily lovely and admirable about *R*evolutions anyway? Some Revolutions have been admirable; some have not. All too often, Revolutions are best left exactly where they can do the least damage — as unrealized fantasies. At least revolutions, to their great credit, are more predictable in the damage that they can do.
Posted by: Marc DeGirolami | Sep 25, 2009 3:07:04 PM