By Jeffrey Rosen
On January 22 the first anniversary of the Supreme Courts
Citizens United decision I attended a summit called We the Corporations v. We the People. It was sponsored by the Coffee Party a network of liberals leftists & progressives. The attendance was sparse energy subdued. Keynote speaker & Harvard Law professor Lawrence Lessig urged the activists attending to scale back their ambitions & forego the push for a Constitutional Amendment. Things could hardly be more different on the right of course.
The summit was designed to rally support for a constitutional amendment to overturn
Citizens United by declaring that corporations are not entitled to the constitutional protections of natural persons which Tribe warned would not solve the problem of corporate corruption.
Conservatives are currently pushing a slew of constitutional amendments ranging from proposals to repeal the federal income tax to proposals to allow two-thirds of the states to repeal any federal law or regulation. And these amendments are receiving full-throated support from party activists and members of Congress alike.
This pattern has held for decades recall the flag-burning amendment of the 1990s and the recent push to win a constitutional ban on gay marriage and it raises a question: Why is it that these days only conservatives and not liberals seem to get excited about amending the Constitution?
The answer in a word is populism. Enthusiasm about constitutional amendments generally tracks closely with populist sentiment. Simply put populist movements tend to expend energy on constitutional amendments; those that are more elite-driven do not.
Conservatives didnt always dominate the market in constitutional amendments.
During the last wave of progressive constitutionalism at the beginning of the twentieth century Harvard Law graduates like Louis Brandeis and muckraking journalists like Ida Tarbell helped mobilize grassroots support for trust busting and anti-monopoly laws by vilifying reckless bankers and oligarchs like J.P.
Morgan and J.D. Rockefeller who took risks with other peoples money." At the same time progressives pursued similar anti-corporate goals by successfully championing constitutional amendments that authorized a federal income tax and the direct election of senators.
But as Alan Brinkley has argued liberalism began to move away from this populist spirit in the middle of the New Deal and in the process largely abandoned its interest in amending the constitution.
The last real effort at constitutional change by the leftthe Equal Rights Amendment sputtered after liberals decided to focus not on building grassroots support but on persuading the Supreme Court to mandate gender equality. When the Court did so in a plurality opinion in 1973 it took the wind out of the sails of the political effort to ratify the ERA in the states.
As Jane Mansbridge argues in Why We Lost the ERA the Courts premature intervention helped to ensure that the amendment was never ratified.
Meanwhile in the wake of Roe v. Wade and other Supreme Court decisions applauded by the left conservatives increasingly began to conceive of their movement in populist anti-elitist terms.
In 1980 when W. Cleon Skousen wrote The 5000 Year Leap the book that would later become the constitutional bible of the Tea Party movement he proposed 101 constitutional questions to ask political candidates. Skousen importantly was posing questions to future movement leaders not drafting constitutional amendments; he understood that when he wrote his views were considered out of the political mainstream. But the ideas of Skousen and others helped to lay the groundwork for a revival of grassroots conservatism especially grassroots conservatism that focused on the constitution.
The result has been a barrage of proposed constitutional amendments in the last few years.
None of the constitutional amendments put forward by the right has passed and none is likely to. But that doesnt mean all this conservative energy surrounding constitutional amendments is wasted. Lower courts for example might not have had the confidence to strike down health care reform if the Tea Party hadnt changed the terms of constitutional debate at the grassroots level in part by garnering support for amendments that would radically limit federal power.
So the lesson here for liberals isnt necessarily about passing constitutional amendments. Its that in order to have any success as a constitutional movement they need to find some way to reconnect with populism.
As Lessig understands Tea Party constitutionalists and progressives today share some common goals in their outrage about the financial bailout their shared opposition to corporate bigness their anger about the role of money in politics and their feeling of alienation from a government heavily influenced by Wall Street.
Theres a strong overlap" between the Tea Party and neo-progressive constitutional vision Lessig said at the Coffee Party summit maybe not in a common objective but in a common enemy which is corporate control."
If progressives want to be in a position to propose credible constitutional amendments again they will need to resurrect the anti-corporate and anti-monopoly focus that they abandoned many decades ago.
Jeffrey Rosen is legal affairs editor of The New Republic.
