Is Progressive Constitutionalism Possible?
Georgetown Public Law Research Paper No. 11-91
19 Pages Posted: 24 Jun 2011
Date Written: 1999
Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to our societal account, nor is it within our control. A, "lesser life," marred by the early loss of a parent, a parent's mourning occasioned by the accidental death of a child, or an adult's ongoing trauma set off by a childhood disease, although cosmically unjust, is neither unjust in the ordinary sense, nor is it easily ameliorated through politics. In contrast, the suffering attendant to poverty or stunted opportunities for growth, the suffering attendant to the absence of supportive communities, or the suffering attendant to the desperate attempt to nurture children while unsure of one's own physical or economic safety is largely chargeable to our moral account and may be ameliorated through politics, at least in a social world like our own, marked by abundant natural resources, vast economic opportunity, thriving neighborhoods, and competent police and security forces. The question I want to raise first is whether it is possible to read the Constitution, or any part of it, as a part of this progressive moral imperative? Does the Constitution, as well as political and moral conscience, require of us ("Us," meaning all citizens, or the polity, or people who vote, or those who engage in political discourse or have political influence, or anyone who pledges to uphold the Constitution) a collective response to the needless suffering attendant to private maldistributions of power, wealth, or privilege? It should already be clear that what Steve Shiffrin helpfully calls the, "Positive Constitution,"' and what I have elsewhere called the, "Adjudicated Constitution," is not a part of any such moral imperative, and indeed, mutes its force. I have described the suffering that triggers the distinctive progressive imperative as caused by private power combined with state or collective neglect, and the positive Constitution, as it has been authoritatively interpreted for the last one hundred years, at best simply does not address the suffering attendant to private action and state neglect: Neither private action nor state inaction, we have all been taught to say, comes within the ambit of constitutional concern. Indeed, quite the contrary. At various times in our all too familiar constitutional history, and through the construction of various individual, "rights," the Constitution, far from being concerned with such suffering, has been authoritatively interpreted in such a way as to quite aggressively protect the conditions which give rise to such suffering against ordinary forms of political intervention. That our positive constitution is so clearly at cross purposes with the moral imperative that animates progressive politics in this country does indeed imply that that body of law does actual harm to this country's disenfranchised. That it has not been the object of sustained critique from the progressive left is indicative of the indirect harm it has done to our moral and intellectual culture. Nevertheless, I want to argue against the positive, posited, adjudicated Constitution, and to suggest instead that the constitutional story, properly understood, is a part of progressivism's core moral and political imperative: To wield collective action toward the end of ameliorating the suffering that is consequent to private maldistributions of wealth and security. Thus, what I want to suggest is that the Constitution and our constitutional history should be read as a part of the progressive moral response to such suffering, that it is indeed unjust and the progressive political response to it as well is unjust, and that the state or some other form of collective action representing the will and sentiment of the people must be aimed at eradicating it. Unwarranted private suffering brought on by private maldistributions of wealth or power, in other words, is of constitutional as well as moral significance, and our collective indifference to it is unconstitutional and shameful. That it is unconstitutional is a part of what makes it shameful, and the shame is what makes it unconstitutional.
Keywords: Equal Protection Clause, Fourteenth Amendment, Due Process Clause, Constitution, positive Constitution, progressivism, wealth redistribution, lesser life, individual rights
JEL Classification: K19, K39
Suggested Citation: Suggested Citation