Yale University law professor Jack Balkin, one of the leading proponents of progressive originalism, which is the idea that the original meaning of the U.S. Constitution supports liberal political outcomes in many cases, says the Occupy Wall Street protestors should take a page from the Tea Party and start staking their own claims to the Constitution:
Occupy Wall Street is pretty easily characterized as a constitutional movement, seeking to take back the Constitution from "the malefactors of great wealth," to borrow a phrase from a century ago.
To begin with, many OWS advocates are critical of the Supreme Court's decision in Citizens United. They believe that the Supreme Court does not properly understand the democratic function of the First Amendment's guarantees of speech and press. They believe that the Supreme Court has twisted and distorted the true meaning of the First Amendment. And they are exercising their First Amendment rights to petition and to assemble in the streets and parks of the United States.
Yet considered most charitably, and in their best light, the Occupy Wall Street protests offer a still deeper vision of the Constitution than simply a rejection of Citizens United.
OWS advocates argue that the system of government in the United States is broken. The wealthy and powerful have used their wealth and power to buy access to government, and to use that access to twist regulations and programs to make themselves even more wealthy and powerful, thus turning American democracy into a self-perpetuating machine for taking from the have-nots and giving to the haves.
It's an intriguing idea. As Balkin notes, Tea Party activists have made constitutional arguments central to their agenda. Could Occupy Wall Street do something similar?
As it stands now, the progressive originalist movement is still trying to win converts among liberal law professors and legal activists, many of who have been quite skeptical of Balkin-style arguments, preferring instead to stick with the old-fashioned liberal position of living constitutionalism. It's not clear why the Occupy Wall Street protestors would be any more amenable to the concept of originalism. But we'll see.
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