Reclaiming Our Progressive Constitition

Today ACS welcomed Doug Kendall, executive director of the Community Rights Counsel, a DC-based public interest law firm that promotes constitutional principles to defend laws that make out communities environmentally sound and socially just. Kendall is working now to launch the Constitutional Accountability Center, a think tank, law firm and action center dedicated to fulfilling the progressive promise of the Constitution.

Kendall began his talk by reflecting upon the typical reaction of a progressive law student to their study of Constitutional law. Most progressive students, Kendall believes, conclude that the Constitution is a great, mysterious, flawed document and that the real heroes in the story of constitutional law are judges, not the Constitution itself. Progressive students believe that what we need are more judges like Marshall and Warren and leave law school thinking that the Constitution’s text and history is for conservatives. Kendall commented that he himself left law school with this belief.

Ten years ago he founded the Community Rights Counsel in response to a series of Supreme Court rulings that chipped away at environmental protection laws. Kendall used the text and history of the takings clause to combat this move by the conservative Court. In a 1992 case (Tahoe-Sierra Preservation Council Inc. v. Tahoe Reg’l Planning Agency), the Counsel brought in John Roberts to argue the takings clause from a historical perspective and managed to sway some of the conservative justices; by 1995 even Scalia was ready to return the takings clause to its property place in history and thus permit environmental protection laws. Kendall realized that this technique of using text and history could combat the advance of conservatives and forward progressive legal goals.

Kendall believes that part of the reason this technique is not used more is the view of the Constitution adopted by progressives during law school, as described above. The problem for progressives, Kendall believes, is a series of rulings after the Civil War, like the Slaughterhouse Cases, that cut the heart out of the 14^th Amendment. These cases remain good law for the Court has never overruled them and they rear their heads in cases like U.S. v Morrison.

Because of this undercutting, the Court has used other methods, like the Commerce Clause, to stomp out discrimination when this would be the work intended for the 14^th Amendment. Thus, modern progressives on the Court have often gotten to the right answer but for the wrong reasons. As a result, progressives have been left defending positions that are largely indefensible. Progressives are then losing these arguments too often.

Kendall believes that it is time for progressives to take a different approach and embrace the constitutional text and history instead of running from it. This is the only way in which they will be able to connect successfully with the current Court. Kendall concluded by stating that if the differences between liberals and conservatives can be distilled to one points, it’s the meaning of the Reconstruction amendments. The text and history of these amendments must be made central to the progressive cause today and the Constitutional Accountability Center will work toward this end.