The Flawed Progressive Scheme to 'Reclaim the Constitution'

Writing at The Washington Post, Yale University law professor Jack Balkin says it's time for liberals to "reclaim the Constitution." The modern right, Balkin contends, has hoodwinked much of the country into believing that the American constitutional tradition is the exclusive property of conservatives. In fact, Balkin asserts, "in some ways the radical conservative portrait of America promoted by today's tea party movement is almost an inversion of the country's actual history. It imagines a nation that never existed in order to attack the foundations of the one we actually have."

In Balkin's view, the constitutional tradition America actually has belongs squarely to the left. "The proudest moments of that tradition—including the expansion of voting rights and equality for blacks and women—are liberal and egalitarian," he declares.

Balkin's critique of the right is not without merit. Supreme Court Justice Antonin Scalia, for example, has certainly been known to give short shrift to certain pieces of constitutional text and history. Nor is Scalia the only such offender on the conservative right.

But the trouble with Balkin's view is that he too is guilty of imagining a past that did not exist. For instance, to describe the struggle for racial equality as purely "liberal and egalitarian" ignores the fact that the avowedly "liberal and egalitarian" Progressive movement of the late-19th and early-20th centuries was largely hostile or indifferent to the plight of African Americans. Indeed, throughout the era of Jim Crow, Progressive egalitarianism went hand-in-hand with white supremacy at all levels of government. In effect, those Progressives wanted a welfare state for whites only. And for the most part they got what they wanted.

At the same time, classical liberalism—which ranks individualism above egalitarianism—was undeniably a guiding light for many prominent civil rights leaders, including Frederick Douglass, NAACP co-founder Moorfield Storey, and the indomitable Mississippi freedom fighter T.R.M. Howard. Such figures—whose views on issues such as property rights and armed self-defense now sound downright libertarian—simply do not conform to Balkin's tidy tale of left-wing uplift.

Meanwhile, in terms of women's rights, the senator who introduced the legislation (originally drafted by Susan B. Anthony) that became the Nineteenth Amendment, which established female suffrage, was none other than future Supreme Court Justice George Sutherland. In the 1930s, Sutherland would be denounced by the left as one of the Supreme Court's "Four Horsemen," the pejorative given to the four-member bloc of justices who regularly voted against Franklin Roosevelt's New Deal. To say the least, Sutherland's record also refuses to fit comfortably inside Balkin's tale.

In truth, the American constitutional tradition contains liberal, conservative, and libertarian elements. Balkin's error lies in trying to shoehorn the whole thing into his preferred progressive narrative.