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