93 Indiana Law Journal 233 (2018)
The opening pages of Rousseau’s Social Contract have two striking phrases. The more celebrated is, “[m]an was born free, and everywhere he is in chains.” That, though, is preceded by this: “I want to inquire whether, taking men as they are and laws as they can be made to be, it is possible to establish some just and reliable rule of administration in civil affairs.” I take this second sentence as my guide: Taking the textual Constitution as it is and with the interpreted Constitution as it could be, can there be a constitutionalism that progressives could wholeheartedly endorse?
I contrast utopian thinking to the thinking grounding the day-to-day work of progressive litigators and academics focused on achieving the best outcomes possible in the courts (and legislatures) as they are, not as they could be. To focus on the Supreme Court: In such work the hoped-for outcome is one favorable to our long-term goals. Ordinarily that means winning cases. With that goal in mind we unsurprisingly count votes and understand that to win a victory for progressivism (to-day) we have to develop arguments that have some chance of getting the vote of Justice Anthony Kennedy (or, or perhaps and, the vote of Chief Justice John Roberts).
The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.
"Utopian Thinking for Progressive Constitutionalists,"
Indiana Law Journal: Vol. 93:
1, Article 13.
Available at: https://www.repository.law.indiana.edu/ilj/vol93/iss1/13