The Talking Cure: How Constitutional Argument Drives Constitutional Development
INTRODUCTIONLet's say that you believe that the American political system has become spectacularly dysfunctional - that it has grown a gargantuan national government that, in a fit of law and rulemaking, that has choked the economy and the business and private lives of citizens with generations of invasive, niggling, and expensive regulations. That governments at all levels have restricted liberty and violated basic principles of equality that were part of the society's foundational social contract. And let's say that you were convinced that the U.S. Constitution was in large part to blame for this dire and increasingly alarming state of affairs. Not the Constitution rightly understood, but the Constitution as understood for the better part of the last century, from the time of the revolution wrought by the Progressives, and institutionalized through the New Deal, the Warren Court, and the Great Society - a Constitution that fundamentally rewrote the meanings of federalism and the separation of powers, and of administration, the presidency, and the role of the federal courts. Might you view the situation as hopeless, counseling either mute despair and withdrawal, or pragmatic acceptance and accommodation? Might you seek formal Article V amendments to the Constitution to realign its functional meaning in the present to its true historical meaning? Or might you simply work, aggressively, angrily, defiantly, to use every means at your disposal to shift (back) society's general understandings of what the Constitution means, from the understandings of the past century to a whole new set of meanings that would effectively protect the nation's core principles of liberty and equality?Since World War II, American conservatives have availed themselves of all of the above constitutional options in response to what they took to be America's political dysfunction. While it would be worthwhile to study efforts by Republicans to push for a more conservative slant to public policies operating within a settled and accepted modern liberal constitutional order, or to study the many proposals that have emanated from the Right for formal Article V amendments to bring back elements (if not the entirety) of a presumably more functional time,1 I focus here on efforts by modern conservatives to shift the conventional wisdom of what the Constitution means and requires from Liberal-Left to hard Right.The topic is vast and space is short. A growing number of of originalism scholars are studying the history of modern conservatives to forge and activate an originalist discourse. Given the many successes of this Right- wing push for a cure for constitutional dysfunction, I would like to step back here and discuss the serviceability of talking cures generally for those seeking major, dysfunction-ending constitutional reform. I do so using modern conservative constitutionalism as an instance.I. PRELIMINARIES: CONSTITUTIONAL ARGUMENT AND CONSTITUTIONAL CHANGEOne of the lessons of studying constitutional development - as opposed to constitutional law - is that over the course of American history the foundational structures of the nation's governing order have been formed, reformed, and revised, at times in fundamental ways.2 As attorneys seeking to influence real-world decisionmakers (like judges), most law professors are preoccupied with constitutional law and not constitutional development.3 Only the most radical amongst them - for example, Critical Legal Studies Scholars (or Crits) long since out of fashion - argue that constitutional law is mostly (if not exclusively) politics, and that meanings are continually made and remade through (constitutional) politics, an argument that will not fly in most courts.4 But what is radical for law professors appealing to judges is work-a-day for political scientists and historians whose chief interest is in dispassionately describing and telling causal stories about actual, altering meanings and settlements. …