Puzzles of Progressive Constitutionalism

Abstract

This Review examines the relationship between progressivism and constitutionalism. In doing so, it considers three different ways of thinking about a constitution’s role in a political system. First is constitutionalism as a distinct ideology of governance in which an apex court plays a major role in deciding issues of public policy and articulating national values. Second is the way constitutional culture prompts political actors to argue for their preferred policies in constitutional terms, even when calling for legislative rather than judicial action. Third is constitutional design, the rules of the political game that dictate how lawmaking takes place. Each of these three lenses reveals distinctive costs that confront progressives engaged in constitutional politics. Courts that play an outsized role in policymaking can impede progressive agendas. A narrow band of acceptable constitutional arguments can make it hard for progressives to make the best case for their preferred policies. And efforts at institutional reform are made challenging by conflicting progressive commitments and fear of how a less restrained government could be deployed by conservatives. While progressives have no practical choice but to engage in constitutional politics, that reality should not obscure the difficulties that constitutional politics, as currently practiced in the United States, pose for progressive agendas.

Keywords: Constitutional Law, Constitutional Structure, Constitutional Theory, Democracy, Institutional Design, Judicial Review, Liberalism, Progressivism