Progressive Constitutionalism: Reconstructing the Fourteenth Amendment.

• Author: Nagel, Robert F.

Most people, naturally enough, have a benign opinion of themselves and believe that they would like to see social conditions improve. Oddly, however, few seem especially motivated to contest the appropriation of the label "progressive" by some on the political left. The concession is not minor. If what these people favor is progress, those who disagree with them must favor either stasis in an imperfect world or deterioration. For those who, like me, have been assigned to the wrong side of the rhetorical divide, this should be insulting.(1) More important, accepting this label is intellectually limiting; it insinuates a presumed answer for a question that ought to be the subject of wide-open debate -- namely, which direction is forward. While Progressive Constitutionalism contains real insights for constitutional theory, it does not say enough about the harder moral and political questions that must be addressed if there is to be any justification for the confident claim made by the book's title.

I

There is much that is worthwhile about Professor West's book.(2) It makes some interesting and potentially far-reaching legal arguments. In emphasizing the abolitionist purposes behind the Fourteenth Amendment, West makes a needed start toward replacing rationality analysis with substantive moral claims based in constitutional history. In urging a particular meaning for the word "protection," she makes a limited but possibly important textual argument.(3) The book contains strong moralizing about the need for "progressive" reforms, and, although these passages are a bit platitudinous for my taste, they are at least forthright and heartfeld.(4) West's proposed interpretations of the Equal Protection and Due Process Clauses prove useful and interesting,(5) even if not entirely convincing, but her book's greater significance lies in its jurisprudential and institutional analyses.

As a general rule, one of the most fundamental limitations of constitutional scholarship is its myopic fixation on appellate decisions. This fixation, which to some extent is to be expected of lawyers, is exacerbated by the incestuous relationship between judicial clerkships and the professorate and by scholars' short-sighted ideological opportunism. It distorts historical research, discourages empiricism, and diverts attention from realistic social and political analysis. More generally, it produces a good deal of tolerance for complete nonsense. Progressive Constitutionalism serves as a bracing antidote to all of this.

West insists that we examine the possibility that judicial interpretations of the Constitution are not merely occasionally or marginally "incorrect" but consistently and fundamentally inadequate from a moral perspective (pp. 118, 192, 282). She traces these inadequacies past the usual culprits -- Republican judges, racist Framers, and so on -- to the institutional context in which adjudication occurs (pp. 48, 89). She argues that this context is inherently conservative, constricted, and authoritarian (pp. 192, 282). She is properly impatient with the obviously improbable but trendy claim that the Supreme Court can somehow provide an opportunity for republican deliberation (p. 283). In short, she helps to open the way for a full-scale critical evaluation of our identification of "the Constitution" with judicial interpretations.

As a corollary to this critique, West attempts to refocus attention on the political process as a means of enforcing the Constitution. In this, of course, she is not alone; modern writers as diverse as Louis Fisher, Richard Parker, Edwin Meese, and Paul Brest have sounded similar themes.(6) West's contribution is distinctive in that, although not abandoning traditional sources of meaning like text and history, it carries a warning against importing into the political arena habits of judicialized discourse (p. 192). It is also specific and emphatic in linking political-constitutional interpretation with the possibility of an extremely ambitious "progressive" political agenda.

Given the conservative electoral gains that occurred the same year this book was published, West's argument that progressives should address their constitutional arguments to Congress may now seem to have been wildly unrealistic. Even before those gains, scholarly disdain for the legislative process was sufficiently widespread that West shows considerable independence in making this argument. Her position cannot be brushed aside on the basis either of conventional academic wisdom or episodic shifts in political alignment. She points to a record of egalitarian statutory enactments that many legal scholars ignore or take for granted. Moreover, she persuasively argues that, regardless of short-run wins and losses, fixation on the judiciary has stunted progressive thought and has isolated parts of the Left from the general public.

West makes valuable substantive contributions, but her book is also enjoyable because of the way it combines political and moral passion with a degree of intellectual self-doubt and circumspection. For example, while in many respects resolutely committed to the idea of change-as-progress and, more particularly, to the standard "progressive" agenda, West nevertheless resists crude condemnations of American history. She writes that "although no doubt in large part a succession of waves of brutality and oppression, [that history] may also contain moments of real nobility and courage" (p. 18). She says, "If we abandon the history and text of the Fourteenth Amendment . . . we may be abandoning a source of moral insight . . . that is superior to those visions our current ahistoric and parochial `selves' have managed to envision" (p. 18). More generally, even in urging the development of "a progressive constitutional faith," West admits that the project may be "terribly risky because it may very likely be either tamed, co-opted, or, at worst, revealed to be in fact . . . nothing but the foundation of a new tyranny" (p. 188).

Thus, just when West's earnest political commitments threaten to reduce parts of her book -- both intellectually and stylistically -- to a tedious manifesto, she pulls back and provokes critical reflection. At its best, Progressive Constitutionalism invites thought about the relationship between legal scholarship, political morality, and constitutionalism. For me the book prompted some questions about what, if anything, constitutional scholars have to contribute to general public debate. Specifically, do we have anything useful to say to our fellow citizens about what progress is or how to achieve it?

II

Viewed as a performance, Professor West's book -- as insightful as it is for constitutional scholars -- casts doubt on whether we have much to contribute to political discourse. It does so even in its most elementary aspect: Progressive Constitutionalism is addressed to law professors, not the general public.

Indeed, one of the least attractive features of Progressive Constitutionalism is that almost no effort was made to convert its chapters from the unmistakably clanking style of the law review articles that they once were. Despite a considerable amount of repetition from one chapter to the next, West tells us in each of those chapters what she is going to say, then she says it -- often laboriously -- and then she summarizes what she has just said. She makes specialized, clumsy references, such as "Sunsteinian" (p. 139). She displays the almost quaint otherworldliness that comes from sustained immersion in the insulated hothouse of the legal academy. For instance, West declares that "Frank Michelman . . . did more than any other to popularize the idealistic argument that `equal protection' requires the states to guarantee a minimum level of welfare" (p. 265). These stylistic limitations raise the question of why an author who argues that constitutional arguments should be directed at Congress would write a book aimed at the world of legal academics. If, as West says, "[t]he question is where to invest our energies, how to spend our lives" (p. 289), why did she herself not do simply what she urges her colleagues to do?

Of course, Professor West may have been hoping for a kind of multiplier effect. Perhaps she concluded that while a book written for the political arena might have made for a satisfying life and might even have had some good political consequences, a book written to influence professional colleagues might result in other books and ultimately more progressive legislation. In striking contrast to her more usual stance of insistent intellectualism, in a few places West does take on the guarded tone of a strategizer.(7) But another, deeper explanation -- to use a phrase that West likes -- presents itself. It presents itself because this is an explanation that easily could apply to me. It may be that West addresses her writings primarily to legal...