2020 Blog

C2020 in The New Yorker

In this week's New Yorker, Jeffrey Toobin draws on The Constitution in 2020 to illuminate President Obama's (unique? idiosyncratic? pragmatic?) approach to the courts and the judicial appointment process. Toobin raises important questions about the role judges have played and should play in reform movements, all while suggesting - echoing several contributors to The Constitution in 2020 - that the new frontier for change may not be the courts, but popular politics.

Coming Soon

The Constitution in 2020 Conference might not begin until Oct. 2, but -- on or around Sept. 16 -- we'll begin running posts from the scheduled panelists. C2020 visitors should take this opportunity to read, comment, and pose questions... in short, to sit down in the front row and get the conference started early.

So, check back, tune in, and blog out. And, of course, remember to register for the conference.

Register for the Constitution in 2020 Conference - Oct. 2 -4 @ Yale Law School

The Constitution in 2020 Conference -- beginning on October 2 and running through 4 at Yale Law School -- will bring together some of the nation's top legal scholars, lawyers, and practitioners (legal and otherwise) to discuss the future of the Constitution. A list of the scheduled panels and their participants is available here.

Click here to register now. Discounted rates are available for ACS students.

2020 News

The newest addition to the site is our "2020 News" page, where you can catch news items related to The Constitution in 2020. Up now are streaming videos from this summer's National Press Club event (featuring Walter Dellinger and Mark Tushnet) and ACS Convention (featuring William Forbath, Rachel Moran, Larry Kramer, and Vicki Jackson), as well as a podcast of Jack Balkin's interview on KERA (Dallas).

A Guide and Comment on Forbath’s "Social and Economic Rights in the American Grain"

     While it is important to ponder our constitutional future, I often think that the story of our future is in large part the story of our past. Narratives legitimize our future plans.  Narratives allow people to see constitutional changes not just as “good,” but good for them, and not just as “right,” but in accordance with a collective, American sense of right. In his contribution to The Constitution in 2020 (“Social and Economic Rights in the American Grain,” chapter 6), William Forbath tackles this challenge directly, outlining a new narrative to reestablish positive social and economic rights. As future-oriented as his project may be, he’s heading toward the future through a sort of archaeology of the past, attempting to unearth a tradition of “American social citizenship” that has been largely buried beneath a dominant narrative of laissez-faire. From Forbath’s standpoint, this buried narrative “is at least as resonant today as its laissez-faire rival,” a narrative that underwrites equal distribution of opportunities and life chances, or, in his words, an equal distribution of “the initial endowments and security (like education and health and old-age insurance) necessary to take risks and fulfill personal responsibilities and citizenly duties.” 
    If Forbath is right – that there is more than one American constitutional tradition – then the true question we need to ask is whether Forbath’s narrative could successfully stimulate future progressive constitutional change.  In the movement for change - in the newspapers, on the internet, in interviews, in conventions, and on the congressional floor - will Forbath’s story resonate with the American people?  My answer is a qualified yes. But here the positive rights that Forbath envisions have to take on a uniquely American character.  And, by “American,”  I mean that these rights will have to pay heed to market principles, be compatible with economically smart policy, and avoid court-centered enforcement.

Positive vs. Negative Rights

    At the core of Forbath’s essay is the decades-old positive-negative liberty distinction. Forbath argues that, in the 21st century, social and economic rights must be positive rather than negative.  A positive right obliges the government to provide a good or service. A practical example of a positive right would be a constitutional right to housing, which would oblige the government to take the affirmative step of procuring housing for those who could not provide it for themselves.  Meanwhile, a negative right protects an individual against some form of interference by others. Perhaps the classic negative right is the right to property, which, in its strongest forms, bars the government and other citizens from interfering with an owner’s right to use his/her property as he or she sees fit. Forbath argues that in the past, negative rights were sufficient to provide equal opportunity.  Negative rights were social and economic rights.  However, now social and economic rights must expand to include both negative rights and positive rights. 

Positive Rights in the American Grain

    A. American Love of Markets and Negative Rights

    Forbath’s narrative can resonate with the American people.  But I believe that for positive rights to succeed at any large scale in America, they will have to be of an American character. Our picture of positive rights comes from across the Atlantic, where they have long been experimented with by European democracies.   At the risk of generalizing (but bear with me), Europeans have often viewed their rights as trumps, believing that a citizen may assert his or her right even if this assertion prevents the state from achieving important policy goals.  For example, in France, President Jacques Chirac attempted to give employers greater discretion to fire their employees in order to improve job mobility and, by extension, the greater French economy.  American employment markets are much freer than French markets and this was a tentative step in the American direction.  French students protested until the policy was retracted.  Western European country’s generous welfare, unemployment, and health insurance programs are also increasingly under attack as economists point out that Europe’s growth has been stymied by the high taxes that fund these programs. 
     While Americans may begin to yearn for positive rights, they are still attached to their negative rights, to their American freedoms. In the American context, positive rights must pay greater heed to free market principles.  For example, there is no serious proposal to establish a health care plan like Canada’s or Britain’s, in which the government is the sole administrator of health care.  Rather, proposals focus on subsidizing patients’ payments or creating a government system to compete with private providers.  While these proposals still depart considerably from strict laissez-faire, they still reflect a faith in the great organizing power of markets.  Indeed, many of Obama’s aides are disciples of the Chicago free market school, which seems to color their particular approaches to policy innovations.

     B. Rights as Good Policy

      Americans will fight for their rights because it is good policy, because it is necessary for a strong and vibrant American economy.  Americans will fight for health care because its high cost is eating up an increasing proportion of American GDP.  We will fight for quality schools because only an educated America can compete in the global information economy.  These points sound cliché because they are part and parcel of the American rhetoric behind the recent push for positive rights.  Where positive rights are more likely to slow the economy, Americans will hesitate and sometimes refuse to enact them.

    C. Rights in the Courts

    Whatever their specific content, American positive rights shouldn’t be created by the courts.  Forbath’s long-time intellectual sparring partner, Frank I. Michelman, has argued that court-centered constitutional rights should be narrow, “meaning that they don’t sweepingly preempt major public policy choices from the ordinary politics of democratic debate and decision.” The appeal of Michelman’s argument for narrowness is pretty obvious:  Broad social and economic rights might force courts to strike down legislation Congress deemed necessary to protect the economic health of the nation.
    Even Forbath will concede this point. In “Social and Economic Rights in the American Grain,” Forbath reminds us “many of our most important constitutional battles are fought outside the courts in movement building, public debate, and legislative and policymaking arenas.”  Unlike the courts, these other entities do not have to formulate detailed legal principles and guidelines. Nonetheless, key principles guide and temper their discussion.  Forbath’s hope is that positive social and economic rights will replace laissez-faire principles as a key driving force in public discourse.

Conclusion

     Whether Forbath’s hope is fulfilled depends on us, on whether we communicate, frame, and sell our progressive ideas as the next step in the advancement of American freedom.  In our discussions in law classes, in ACS committees, and with family, will we demand health care as an individual right with an attitude of entitlement?  Or will we show how health care and family leave enhance our freedom and lead to the realization of shared American policies and goals?  Should health care be paid for through higher taxes, or through greater savings  and efficiency?  Do we want a European single-payer plan or a restructuring of the market to promote better competition?  Paradoxically, a progressive future will only arrive if we can connect it to the American past.

   
   
     

 

Watch Judge Sotomayor's Confirmation Hearing

MSNBC is providing live streaming video from Judge Sotomayor's confirmation hearing. You can catch the proceedings here.

Constitutional Right and Normative Frameworks: The Information Age

Lingering in the background of many of the articles appearing in The Constitution in 2020 is a debate about the rhetorical framing of rights and policy.  The debate is perhaps nowhere more evident than in the transition from Robert Post’s "A Progressive Perspective on Freedom of Speech" to Yochai Benkler’s "Information, Structures, and the Constitution of American Society." The authors of these two articles agree on the underlying goals of information policy: that it should encourage the public to participate in a democratic culture, foster a democratic society, and promote democratic legitimacy.  (Benkler assumes that we should “strive for a more democratic society, where individuals are ever more free and equal citizens”  (Benkler at 195). Post notes that “[t]he First Amendment safeguards the ability of persons to participate in the formation of public opinion so as to preserve the democratic legitimacy of our government”  (Post at 182). Both Benkler and Post train their arguments on similar countervailing interests (the commercial and the individual) and come to similar conclusions (generally favoring the individual).)

Despite their similar goals, Post and Benkler present markedly different ways of reaching those goals.  These different strategies create a tension, reflecting the authors’ divergent agendas. 

Post is trying to make room for good information policy within the normative framework of First Amendment jurisprudence.  His argument is about shaping information policy through a rejuvenated First Amendment: "A strong normative vision of a healthy public sphere will enable progressives to make visible important constitutional questions that are simply invisible when seen through the lens of received First Amendment doctrine." (Post at 185). At the same time, Post steers the First Amendment discussion away from the question of what we have a right to say to a question about how we ought to encourage people to speak in democratically conducive ways. 

Benkler, meanwhile, writes bluntly that information policy “must be concerned with the constitution of the U.S. society, rather than with the U.S. Constitution.”  (Benkler at 187).  He wants policy to incorporate perspectives that lie outside of constitutional jurisprudence.  Benkler (as well as Sunstein in his piece "The Minimalist Constitution") is trying to move the debate out from under the purview of the Constitution. 

It is important to keep these rhetorical frameworks in mind, since they have normative implications  Any constitutional conclusion will necessarily be more rigid and entrenched, for better or worse.  In the area of information policy specifically, this rigidity may be problematic when it comes to regulating an incredibly dynamic and unpredictable medium.  The same constitutional framework, however, provides a stronger normative foundation that appeals to both the jurisprudential and popular, in that an argument founded on constitutional principles appeals to a commonly held, more traditional set of values.  Post is right to seize on this aspect of the argument; progressives need to hang their hat on a normative perspective that has durability. 

At the same time, an overly fluid First Amendment doctrine will struggle to gain traction against a simpler normative framing (such as “all speech is free”).  Benkler, for his part, is skeptical of the boundaries that a constitutional argument imposes; he wants progressives to think as broadly as possible, to consider “the totality of the sources of freedom and constraint, equality and inequality, and to think of law in terms of its role in that broadly defined system of freedom and constraint.”  (Benkler at 195).  This added flexibility is particularly important within the information technology world where innovations are made daily and the wrong regulation could stifle individual creativity and contribution.

In outlining the differences between Post and Benkler’s respective views, I don’t intend to set-up a false choice, to suggest that we have to resolve this conundrum decisively in one direction or the other.  Rather, I think that Benkler and Post would agree that progressives will have to rely on both approaches. We will need a Post-like First Amendment argument to counter conservative appeals to more traditional First Amendment doctrine.  At the same time, we will want to push information policy further and further from under the Constitution, so we can tweak it as we learn what works best.  In other words, the successful implementation of a sound information policy will depend on harmonizing Benkler’s bid for fluidity and Post’s desire for constitutionally derived legitimacy.
 

2020 Readings -- Staff Picks

Readers interested in delving into other sources that comment on 2020’s main themes should regularly consult our 2020 Readings section, where we’ll be actively compiling (with your help, of course) works that will be useful for creating specially themed reading groups, crafting research projects, or creating your own personal reading list. For starters, the 2020 staff recommends the following:

Amy Chua, WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS GLOBAL HATRED AND INSTABILITY (Anchor Books, 2003)
Relevant 2020 Section: State, Nation, World
 
While progressives often envision a world of constitutional democracies, our efforts to bring such a world to fruition have often been disastrously unsuccessful. As we re-gather after Iraq and begin to devise a foreign policy more in line with our constitutional commitments, this insightful book warns of the dangers of cookie-cutter approaches to promoting democracy and economic development, while also providing useful and sophisticated ideas for moving forward. Chua's world-spanning study informs our understanding of the possibilities and limits of free-market democracy in the developing world. -L.P.N.
 
Jedediah Purdy, BEING AMERICA: LIBERTY, COMMERCE, AND VIOLENCE IN AN AMERICAN WORLD  (Random House, 2003)
Relevant 2020 Sections: State, Nation, World; Citizenship and Community; Democracy and Civil Liberties
 
A rich and compelling commentary on how America is envisioned at home and abroad -- told through a journey in the months after September 11, 2001.  Purdy travels through Asia, Africa, and America and captures the stories of activists and ordinary people who express mixed resentment and admiration for America.  His reports are interwoven with intellectual voices from the past, including James Madison, Edmund Burke, and Adam Smith, to help explain America's legacy of freedoms and prejudices.  A lucid, provocative, and deeply inspiring companion for anyone who has come of age in a post-9/11 world and seeks to articulate a progressive vision for America. - V.K.
 
Yochai Benkler, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM (Yale University Press, 2007) (available for free download here)
Relevant 2020 Sections: Democracy and Civil Liberties; Social Rights and Legislative Constitutionalism; State, Nation, World

An examination of networks, social production, and other recent developments in the creation and distribution of information.  Benkler analyzes the implications and possibilities of information policy through economic, social, and political lenses. He also asks us to consider what binds us together -- exploring concepts like "society" and "culture," in addition to more traditional tenets like "autonomy" and "democracy." Interestingly, when it comes to social production, Benkler practiced what he preaches: prior to its publication, The Wealth of Networks was available on a Wiki page where people were able to read chapters and contribute their comments, analysis, etc. – S.G.
 
David Feige, INDEFENSIBLE: ONE LAWYER'S JOURNEY INTO THE INFERNO OF AMERICAN JUSTICE (Little, Brown and Company, 2006)
Relevant 2020 Section: Democracy and Civil Liberties
 
An authentic account of big-city criminal justice. Feige, a former public defender with New York's Legal Aid Society and the Bronx Defenders, spins courtroom tales that ring true to anyone who knows the system and may shock those who don't. Indefensible is required reading for anyone who believes in due process of law. -- D.W.
 
Susan H. Bitensky, “Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis,” 86 NW. U. L. REV. 550 (1992)
Relevant 2020 Section: Social Rights and Legislative Constitutionalism
 
Bitensky’s article gives an overview of the American education crisis in the early nineties, analyzes current rights to education, and then explores a number of theories for a positive right to education under the United States Constitution.  Recommended as an overview of case law-based theories to an education right. – T.L.
 
THE FORBATH-MICHELMAN DEBATE
Relevant 2020 Sections: Social Rights and Legislative Constitutionalism
 

  • William E. Forbath, "Caste, Class, and Equal Citizenship," 98 MICH. L. REV. 1 (1999)

            An expanded and detailed exploration of Forbath's argument for social citizenship. In an attempt to  remember and reconstitute a forgotten progressive past, Forbath traces the     history of the concept from the founding to the present, showing its deep American historical heritage.
 

  • Frank I. Michelman, "Democracy-Based Resistance to a Constitutional Right of Social Citizenship," 69 FORDHAM L. REV. 1893 (2001)

             In this brief comment, renowned constitutional theorist Frank Michelman lays out precise and illuminating criticisms of William Forbath's argument for social citizenship rights.  Michelman is just the right man for the job too, since Forbath's argument for social rights is a direct response to Michelman's theory of constitutional welfare rights.  Michelman has an intimate feel for the stakes in the debate and how small distinctions can have radically different implications.
 

  • William E. Forbath, "Not So Simple Justice: Frank Michelman on Social Rights, 1969-Present" (2004), 39 TULSA L. REV. 597

              William Forbath strikes back: another chapter in the long running debate between Michelman and Forbath on social citizenship rights.  Forbath traces Michelman's evolution on social citizenship rights and challenges his reader to imagine the Constitution in 2020 where each citizen has a right to health care, education, and work. – J.B.


Terry Eagleton, REASON, FAITH, AND REVOLUTION: REFLECTIONS ON THE GOD DEBATE (Yale University Press, 2009)

Relevant 2020 Section: Protecting Religious Diversity

Preeminent British literary critic Terry Eagleton intervenes in the increasingly strident post-911 debate about the relationship between faith and reason in a democratic society. While everyone seems to know where evangelicals stand politically, the politics of the “New Atheism” have been less clear. In their rejection of the worship of the past, the New Atheists may appeal to those anxious about “atavistic” right-wingers and Republican wars on science. Eagleton troubles this allegiance between left politics and science when he denounces the New Atheism as an essentially right-wing phenomenon, and calls for the Left to distance itself from a technocratic style which he sees as typifying the elite political and cultural consensus. – J.K.

 
William Galston’s “Two Concepts of Liberalism,” 105 ETHICS 516 – 34 (1995)
Relevant 2020 Section: Protecting Religious Diversity

Liberals have often assumed the compatibility of important goals such as protecting diversity and promoting individual autonomy.  But what happens when these legitimate values conflict?  Using religious free exercise cases to frame his discussion, Galston argues that liberal philosophy and liberal constitutionalism have mistakenly prioritized liberal autonomy over social and religious diversity.  Galston mixes intellectual history and analytical philosophy to trace tensions within liberalism to two sources: the post-Reformation recognition of ongoing diversity and the Enlightenment’s emphasis on individual self-reflection.  Galston concludes that only a diversity-oriented liberalism can ensure the range of freedoms that liberalism requires. – K.T.

 
Edward Lazarus, CLOSED CHAMBERS: THE RISE, FALL, AND FUTURE OF THE MODERN SUPREME COURT (Penguin, 2005)
Relevant 2020 Sections: Interpreting Our Constitution, Democracy and Civil Liberties
 
An engrossing inside account of the Supreme Court’s jurisprudential trajectory over the last several decades.  Controversial since its debut in 1998, Lazarus’s behind-the-scenes look at the Court draws on his year clerking for Justice Blackmun; but it also contains extensive original research on the Court’s decision-making in touchstone areas of American law.  Focusing particularly on the death penalty, abortion, and racial preferences, Lazarus shows how the Court’s decisions are a product of precedent, politics, and personality.  Opinionated and compulsively readable, Closed Chambers lays bare how sustained ideological ferment can make its way, in big ways and small, inside the Marble Palace. –A.D.C.


Louis Menand, THE METAPHYSICAL CLUB: A STORY OF IDEAS IN AMERICA (Farrar, Straus, & Giroux, 2002)
Relevant 2020 Section: Interpreting Our Constitution
 
Critics have argued that pragmatism is America’s only home-grown philosophy. While that notion is debatable, pragmatism (in its various and changing forms) has long played a role in the development of American constitutional, social, and political thought. Now, with an Administration that openly declares itself “pragmatic,” pragmatism seems poised to make a comeback. How did we reach this point? Menand’s Pulitzer Prize-winning intellectual history offers readers an engaging overview of pragmatism’s development and spread, with a firm sense of story to match; at the same time, it suggests that pragmatism has, does, and should mean something more than being “non-ideological” or “practical-minded.” – T.W.

 
Laurence Tribe, THE INVISIBLE CONSTITUTION (Oxford University Press, 2008)
Relevant 2020 Section: Interpreting Our Constitution
Tribe's invaluable study of the power and influence of the unwritten, as well as written, Constitution. This book asks us to reimagine the Constitution and to see beyond the limits of originalism. Merging text and context, Tribe offers a sweeping analysis of what the Constitution means and how we ought to interpret it. -L.P.N.
 
 

Two Questions for the Establishment Clause

In different ways, Noah Feldman and William Marshall critique the received liberal wisdom concerning Establishment Clause jurisprudence.  Feldman argues that we should adopt the “no money, no coercion” principle of the Founders.  This means the government should reduce religious groups’ access to public funds through faith-based social service or school voucher programs, but become more tolerant of symbolic, non-coercive public endorsements of religion, such as Ten Commandments displays.  Meanwhile, after surveying the values and shortcomings of secularism, Marshall concludes that government should allow religious groups to receive funding, under certain conditions, but should be diligent in preventing new public endorsements of religion.

Two important practical questions emerge from these pieces.  First, to what extent, if any, should religious groups who perform social services be eligible for public funds?  Second, how should we understand the relationship between symbolic endorsement of religion and coercion?

To my mind, Marshall offers a more compelling answer to the funding question.  There is no reason to think that the Founders’ “no money” admonition was meant to put religious groups at a disadvantage compared to non-religious groups.  As Feldman acknowledges, the Founders feared that taxation for religious purposes violated the conscience of those who believed differently.  But, in a modern welfare state in which taxes fund a wide range of controversial ethical and economic endeavors, equal treatment should guard against religious groups being uniquely excluded from funding.  Feldman recognizes that these changed circumstances might lead us to reach different conclusions than the Founders, but he suggests we should, nevertheless, avoid funding religious organizations because competition for the government’s largesse is likely to result in political polarization.  It is far from certain, however, that excluding faith-based groups altogether will not simply lead to political polarization of a different sort.

Marshall rightly notes that, as long as religious groups are not exempted from generally applicable regulations, and as long as state funding does not go to purely religious activity, there does not appear to be any constitutional problem with government funding religious groups that perform public functions.  President Obama seems to agree.

The most relevant question for the symbolism debate is whether or not the state can be effectively neutral between competing conceptions of the good.  If one believes there is a neutral space the government can occupy, then all public symbolic endorsement of religion should be avoided.  If public endorsement of religion persists, even though a neutral alternative exists, it is reasonable to suspect coercive intentions are at work.  If we conclude, however, that the government cannot be genuinely neutral, there seems no principled way to exclude only religious symbols from the public sphere.  To do so, as Feldman observes, is to discriminate against religious perspectives in favor of non-religious ones. 

Marshall is at least as effective as Feldman in diagnosing the shortcomings of secular neutrality, but his greater concern over the coercive potential of religious symbols leads him to conclude that government should not endorse religion, unless the endorsement is part of a benign and longstanding tradition.  Marshall’s conclusion might seem practically appealing, but his distinction between old and new religious symbolism is problematic.  If the state cannot be neutral, which Marshall concedes, why should religious groups who seek public endorsement be denied the same opportunities available to non-religious groups?  Marshall understandably worries about the coercion that could result if certain religious groups capture government interests and then exclude other perspectives, but he fails to appreciate fully that symbolic endorsement, unlike public funding, is not always a zero-sum game.  Whether enacting a local holiday, hanging a plaque at the courthouse, or displaying an exhibit at a public mall, there are many creative ways for the state to endorse religious symbols without it resulting in chaos or coercion.

The good news here is that we, as progressives, can be friendly to religion without compromising our core principles.  In fact, strict secularism, of the sort Marshall and Feldman dismiss, runs counter to progressive values of equal treatment and respect.  In a happy coincidence, the current political climate is a hospitable one for progressives who are open to religion.  We should embrace this political reality with the knowledge that our constitutional and philosophical principles are safe.

 

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 3)

Responding to Jeremy Kessler's Counterpoint
 
Point: Daniel Winik
 
Thanks, Jeremy, for a well-reasoned counterpoint. We seem to agree on many fronts—and in particular on the wisdom of campaigning for marriage equality state by state, rather than aiming to achieve it nationally in one fell swoop. In that vein, I think both of us would endorse Bill Eskridge and Darren Spedale’s view that now is not the time for a federal Equal Protection challenge to Proposition 8.

Jeremy addressed mainly the legislative element of incrementalism, rather than the federalist element, so I’ll focus my response on that contested ground.

Let me begin with a clarification: I do think courts are relevant to the project of marriage equality. Few of this country’s civil rights victories have come without judicial action, and the progress so far toward marriage equality has been no exception. I also agree that progressives should not give up on “a jurisprudence of positive rights” (even if Jeremy’s invocations of Swann and Green seem a bit too hopeful in the wake of Parents Involved [full text]). My point is simply that progressives should favor a legislative approach where such a strategy is feasible.

I’ll anticipate a question from Jeremy: when exactly might the judicial recourse be appropriate? Progressives can take to the courts, I suggest, when a) they’ve tried and failed to gain traction in the legislature, and b) a judicial solution would not radically outpace the progress of public opinion. These conditions are likeliest to prevail where legislative support for marriage equality has for whatever reason lagged behind popular support. Rhode Island—whose legislature has so far ignored sixty percent of voters — appears to be the best candidate for a judicial approach today.

Recourse to the courts should be rare, because it carries strategic risks much graver than Jeremy has acknowledged. While I agree with him that “[j]udge-made law often meets popular resistance,” I don’t agree that “this resistance may itself prove an important catalyst for positive democratic change.” History has proven the opposite.

The reason is that controversial decisions do not energize both sides equally. As Jack Balkin has observed, “success by social movements in reshaping constitutional doctrine can lead ironically to political demobilization” among the movement’s supporters, even as it provokes “powerful counter-mobilizations” among the movement’s opponents. Balkin notes “that Brown may have unwittingly demobilized the nascent civil rights movement for a short time,” while Roe “put the abortion rights movement continually on the defensive and required it to respond to counter-mobilizations by religious and social conservative groups.” Similar forces may have been responsible for the passage last fall of California’s Proposition 8, six months after the state’s Supreme Court had legalized same-sex marriage, as a poorly organized campaign for equal marriage rights failed to defeat the proposition’s well-financed and highly-motivated supporters.

More broadly, I think the analogy to Brown is inapposite. Yes, Brown — like Roe — sparked controversy. Yes, it pushed beyond what anyone would call a clear national consensus against segregation. Unlike Roe, however, it did not curtail a nascent democratic process. The South was hardly on the cusp of desegregating its schools when Brown came down, as the case’s tortured aftermath made clear. The current state of the movement toward marriage equality is far closer to the state of the abortion rights movement at the time of Roe, when — as Balkin writes — “many states were beginning to consider reforming their abortion statutes” but few had yet done so. This is the sort of democratic trend that progressives prod at their own peril.

Public support for marriage equality is moving — inexorably, it seems — toward majority status. There may come a day when that trend founders and progressives must reconsider their options. But we should be wary of hastening such a reversal by telling voters that their views don’t matter. The judiciary may be the ultimate guarantor of constitutional rights, but for now, progressives can best secure marriage equality by taking their fight to the ballot box and keeping it out of the courthouse.
 

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