On the alternative to "strict-constructionism" favored by Obama: democratic constitutionalism

...If this new understanding of legal liberalism can be traced back to a single moment, it was in April 2005, when the American Constitution Society and other progressive groups sponsored a conference at Yale Law School called “The Constitution in 2020.” Taking as their model a white paper produced by the Reagan Justice Department in 1988 called “The Constitution in the Year 2000,” the organizers set out to gather together a group of scholars to define a progressive constitutional agenda for the coming century. (A book inspired by the conference, “The Constitution in 2020,” has just been published.) The conference brought to New Haven many of the leading liberal scholars in the country, including several who in recent weeks have been mentioned in connection with Obama: Pam Karlan, a law professor at Stanford; Harold Koh, of Yale Law School; and Sunstein, then a professor at the University of Chicago Law School.

Like the Babylonians in exile, the participants at the conference debated how best to return to the land of political relevance. Their favored judges had been shut out of consideration not only during Republican presidencies but also, to some extent, during the Clinton era, when political realities and the president’s ideological inclinations resulted in fairly moderate appointees to the federal courts. At the same time, the conference participants agreed that a return to the Warren Court liberalism of the ’60s would be politically impractical as well as doctrinally undesirable. They also viewed Warren Court liberalism as too backward-looking to galvanize young progressives today. They sought to nurture a new generation of legal liberals who would pose an alternative to the conservative strict-constructionist lawyers who emerged from the Federalist Society to dominate the federal courts during the Reagan, Bush 41 and Bush 43 eras.

In the ensuing years, several scholars, including Jack Balkin, Reva Siegel and Robert Post — three law professors at Yale — have helped articulate the position now known as “democratic constitutionalism.” One of its core ideas is that courts should pursue many of the same social-justice ends that the Warren Court sought to advance, only using more modest, less uniformly activist means — always acting in conjunction with progressive political movements. Unlike the minimalists, the democratic constitutionalists don’t maintain that courts should always prefer “nudges over earthquakes”; but unlike Warren Court partisans, they don’t suggest that the courts are always entitled to have the first (or last) word in promoting social progress. “Decisions made by legislatures and executive officials about our rights are just as important” as judicial decisions, if not more so, Balkin and Siegel write in an introductory essay to “The Constitution in 2020.”

http://www.nytimes.com/2009/05/31/magazine/31court-t.html?_r=1&pagewanted=all


In the mold of Justice Breyer.