Posner and Vermeule Critique "The Constitution in 2020"

Outcomes, Outcomes
Eric Posner and Adrian Vermeule
The New Republic
August 12, 2009

The Constitution in 2020
Edited by Jack M. Balkin and Reva B. Siegel
(Oxford University Press, 355 pp., $19.95)

There is a genre, the "constitutional manifesto," that sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics. The latter category may be nicely illustrated by the competing slogans of interest groups contesting the Sotomayor nomination: "judicial activism," "empathy," and so on. The constitutional manifesto, by contrast, attempts to expound a philosophical vision of constitutional law and politics that is nonetheless accessible to a broad audience, and is also politically savvy, so that it may guide a political and legal movement in particular directions over time. The constitutional manifesto therefore declines to take short-term political constraints as a given, and instead attempts to lay out a program of action that can shift the location of those constraints in the future. It is both intellectual and political, and its integrity is determined by the relationship between those terms. The Constitution in 2020 is the latest example of a constitutional manifesto: a collection of essays by self-identified "progressive" scholars of law and politics.

To understand its genesis, one must begin the story further back, with the progressive movement's antithetical twin: the conservative legal movement that began in the 1970s. Reacting in part to the perceived "activism" of the Warren and Burger Courts, conservative lawyers, many associated with the Reagan administration, founded or captured a range of institutions and used them to develop a cadre of conservative legal elites. The pipeline for young conservative legal talent begins with membership in law-school chapters of the Federalist Society, followed by a judicial clerkship, a job in the Reagan/Bush/ Bush administrations or in a prestigious conservative law firm, a quasi-academic post in a conservative Beltway think tank, or all of the above. But the institutional side of the conservative legal movement was not the main source of its energy. The movement drew its strength from its theoretical and ideological wing. Conservative academics and judges, including Raoul Berger, Robert Bork, Frank Easterbrook, and Antonin Scalia, developed a suite of legal theories and commitments centering on "originalism," or the idea that the original public meaning of the Constitution in the founding era should control its interpretation today

Eric Posner