A New Debate on the Court and the Constitution

The Constitution doesn't, it turns out, belong only to the handful of men who drafted it two hundred years ago. Ironically, it's thanks to the far-right bloc on the Court that Americans are more open than ever to hearing this message.
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For the last 25 years, Americans have been given a Hobson's choice when it comes to the Supreme Court, a choice that has served the right wing exceedingly well. But thanks to the Court's recent string of pro-corporate decisions, culminating in the infamous Citizens United v. FEC, progressives have a once-in-a-generation opportunity to take back the debate on the Supreme Court.

As Slate's Dahlia Lithwick has pointed out, the Republican message machine has managed to convince America at large that only two kinds of Justices exist: rigorous conservatives who scrupulously apply the original intent of the Constitution, and carefree liberals who flaunt the law to rule for whichever party their big, soft hearts prefer. It's a myth, but it didn't spring up from nowhere. It's the direct result of a concerted effort pushed by conservative ideologues like Ed Meese and supported by Ronald Reagan, George Bush, and eventually the entire GOP machine.

For decades, this campaign has paid enormous dividends to the Right, with ultra conservative judges frustrating progressive goals and allowing elected conservatives to trample our Constitution. But over the last few years, a series of decisions by the Roberts Court have exposed its flaws and given progressives an opening to take back the conversation.

Most notably, the Court ruled in Citizens United v. FEC that Congress couldn't put limits on corporate influence on elections, allowing corporate behemoths to pour millions, eventually billions, of dollars from their corporate treasuries into campaigns to support or defeat particular candidates.

The impact of the Court's decision will be enormous, but it also exposed the lie in decades of GOP talking points. In its wake, the GOP leaders can't talk about originalism -- the founders, with their deep skepticism of corporate power, would undoubtedly have considered the decision appalling. They can't talk about refusing to legislate from the bench -- the decision cast aside carefully crafted legislation enacted with bipartisan support. They can't talk about judicial restraint -- the majority overturned decades of Court precedent. And they certainly can't talk about "just calling balls and strikes" -- in baseball terms, Citizens United was the equivalent of grabbing the bat and using it to beat the pitcher.

Meanwhile, as John Roberts and Company have been engaged in mutilating the Court's precedents, progressives have been engaged in the deeply un-sexy work of developing serious scholarship about a judicial philosophy based on constitutional fidelity: keeping faith with the full text, history and essential principles of the Constitution, a document that has been amended by generations of Americans to make sure that We the People means all the people, not just a privileged few, and certainly not just corporations.

Progressives have a chance to talk about the Court and the Constitution in a new way, and President Obama seems to be on board. Instead of using a paler shade of the Ed Meese rhetoric perfected by the Right (remember "judicial modesty?") the President is talking about how our country needs justices who have a common sense understanding of how the law affects individual Americans. He's even taking direct aim at Citizens United, saying that "in democracy powerful interests must not be allowed to drown out the voices of ordinary citizens." And he's right.

The Constitution protects the rights and liberties of individuals, and it gives us a democratic process by which we can hold powerful interests, including corporations, accountable for their actions. The Constitution doesn't, it turns out, belong only to the handful of men who drafted it two hundred years ago. It belongs to us, and it's still relevant to the unprecedented challenges we now face.

Ironically, it's thanks to the far-right bloc on the Court that Americans are more open than ever to hearing this message. Given the national disgust with the level of influence corporations hold over our government and our lives, Citizens United has touched a nerve with progressives and the general public. Other decisions by the Court limiting our ability to hold corporations accountable for sex discrimination, oil spills and consumer safety have proven that Citizens United wasn't an anomaly.

It's time to start taking ownership of the law again, and the confirmation process for Solicitor General Elena Kagan's nomination to the Supreme Court is a superb place to start. Progressives have an opportunity to frame the debate on our terms, and we need to take it. Senators need to ask questions about judicial philosophy and General Kagan needs to answer them.

We need to know whether Elena Kagan will embrace a philosophy of constitutional fidelity as fervently as Justice Scalia has embraced originalism. It's far too soon to know if Elena Kagan will become a leader in the mold of her mentor Thurgood Marshall. But if we can wrest the conversation away from the far-right's framing, we'll be in the game for the first time in decades.

The chance to change the conversation we have about the Court, the law, and the Constitution doesn't come along often. All that progressives have to do is take it.

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