"The Constitution in 2020" in 2020

The book offered a "powerful blueprint for implementing a more progressive vision of constitutional law"


In May 2009, Jack Balkin and Reva Siegel published an impressive volume of essays about the future of constitutional law, titled The Constitution in 2020. In October 2009, Yale Law School hosted a conference about the book. I live-blogged the proceedings on my then-nascent blog (See 1, 2, 3, 4, 5, 6, 7, 8, 9, 10).

October 2009 was a very constitutional universe. Boumediene v. Bush and District of Columbia v. Heller were barely a year old. The legal challenges to Proposition 8 were in their early stages. NAMUDNO v. Holder suggested that the Voting Rights Act was in jeopardy. Justice Sotomayor was now confirmed to the Supreme Court, and Solicitor General Kagan had recently argued Citizens United. The Affordable Care Act was winding its way through Congress, and rumblings about the individual mandate's constitutionality began to form. We are in a very different place a decade later.

The book offered what it called "powerful blueprint for implementing a more progressive vision of constitutional law." I am generally skeptical of any long-term strategies, especially when the courts are involved. I critiqued Chief Justice Roberts's so-called "long game" in the wake of Justice Scalia's passing:

The Supreme Court does not exist in a vacuum, where stasis is maintained. Everything changes. Even if the Chief Justice has a broad vision of what he wants to accomplish, had President Clinton appointed three new Justices, all of those plans would have vanished instantly. His first decade of planning and calculating would have been for naught, and the Chief Justice would have been in dissent for a generation. Even if a Republican President appoints two or three Justices, there is no way for Roberts to know how they'll vote. Maybe those Justices will also have a different master plan, and will not agree with the Chief's plan. Or maybe the nominee will turn out to be another Souter or Stevens. Or what if the plan falls apart much sooner? Justice Scalia's unexpected death brings this entropy into focus.

I hope to write more this year about how the Constitution in 2020's blueprint fared over the past decade.

NEXT: Today in Supreme Court History: January 1, 1863

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  1. Scary how the current Team D presidential candidates all share similar views to what these people articulated back in 2009. Particularly the 100K downpayment at birth idea financed by a 2% wealth tax. Geez, now whose policy does that resemble?

    The link gets a 404 error = I critiqued Chief Justice Roberts’s so-called “long game” in the wake of Justice Scalia’s passing:

  2. One other side note to Reason Readership….Definitely take the time to click through Professor Blackman’s blog links (1-10). There is a lot in there, and a number of his observations are refreshingly direct and hilarious. I learned quite a bit.

  3. ” hope to write more this year about how the Constitution in 2020’s blueprint fared over the past decade.”

    Oh, that sounds like fun. I look forward to it. Please give some clue in the title that these posts are part of a series.d

  4. Reading this reminds me that a great many “constitutional scholars” study the Constitution in the same spirit pest exterminators study insects. Not to learn what it means, but to find ways to keep what it means from getting in the way of what they want.

    1. Luckily we have you to keep us constitutionally straight.

      1. Indeed.

        Seriously, I have strong opinions about what the Constitution means, but they’re textual/originalist opinions; They’re just more textualist/originalist than the sort of people who actually get to be judges are at all comfortable with. Nobody with a “Let the Constitution be upheld though the heavens fall” attitude is likely to get a seat on the Supreme court, when we have a political class who don’t even much like the Constitution, and see it as an obstacle to their own unlimited power.

        I’m perfectly capable of recognizing when the Constitution means something I don’t like. And advocating appropriate amendments. I advocate a constitutional convention, because I think the Constitution has proven to have some serious deficiencies. But until amended, it should be honestly upheld.

        The people taking part in “The Constitution in 2020” don’t take that attitude towards the Constitution. They view it as effectively unamendable, (Because the amendments they’d want wouldn’t be popular enough to be ratified…) and advocate what is frankly dishonest interpretation, resorting to often very transparent sophistry to pretend the Constitution already means what they’d like it to mean.

        Essentially, they want enough of a “constitution” to over-ride democratic choices, but not enough of a constitution to actually get in their way.

        1. What you are not capable of understanding is that the Constitution might mean things you don’t agree with. Or that anyone who isn’t an originalist is dishonest.

          What you call transparent sophistry is just your unwillingness to countenance contradiction of your worldview.

  5. “The book offered what it called “powerful blueprint for implementing a more progressive vision of constitutional law.” I am generally skeptical of any long-term strategies, especially when the courts are involved.”

    I am by now generally skeptical of any blueprint that is associated with the word “Progressive”, unless it’s a progressive dinner.

  6. Anything that derails Chief Justice Robert’s plan for the Supreme Court to bend over backwards not to cause ripples in the pond, is a Merry Christmas present to most American’s. The Swamp mud is showing on the tails of his Black Robe.

    1. Legion are the reasons to easily give more power to the power hungry, as memed to you by them.

      1. I’ve got bad news about the power hunger of the ones Roberts is working not to disturb.

  7. “powerful blueprint for implementing a more progressive vision of constitutional law”

    So, slavery?

    1. Sir, I’m afraid the progressives you just owned were made out of straw.
      In in your enthusiasm, I fear you’ve abused the term slavery as collateral damage.

      1. New decade … care to lose those shackles and renounce racism?

        1. Affirmative Action isn’t racism.

          Between racism and slavery, you abuse language more than Trotsky!

          1. “Racism” is an attitude or ideology, not a program, so while affirmative action (As we know it today, anyway.) might be motivated by racism, it technically isn’t “racism” itself.

            1. Thanks, I think.

              I don’t know anyone who doesn’t renounce racism. These debate club games are tiresome.

              1. BB: Please, AA is but a structural, institutional racist policy, I am talking about real, actual racial prejudice and racism. Nice try, though.

                S: Well, YOU for one … sexism as well.

                I renounce ALL racism, be it anti-black, anti-white, anti-(insert you favorite) and if you are ready to do the same, I would gladly welcome your freeing of your mind.

                1. You denounce programs designed to address and mitigate the effects of racism.

                  Your simplicity and semantic games crumble before the slightest amount of real-world practicality or empathy for those not like you. It’s telling you adhere to them.

                  1. I reject your false benevolence as it is derives from the white supremacy that you claim to see in others, but apparently cannot see in yourself.

                    One of the most popular defenses of slavery was that the slaves could not handle freedom, incapable of living with whites, the basics of civilization beyond their reach.

                    That your arguments come from that same pit IS telling indeed.

                    1. You gonna argue Affirmative Action is the real white supremacy and is rationalized similar time slavery, you have to come with more than semantic BS.

                    2. I did not argue it is “the real” supremacy, but that it comes from an unseen, unacknowledged and very real sense of white supremacy.

                      Do you believe that “racial” discrimination is wrong (moral?)

                    3. Going to weird scare quotes now with “racial,” eh?

                      I go with the current law, that racial distinctions are not always wrong, but require a compelling reason on a case-by-case basis.

                      A clue it might not be about a white supremacy only you can see is how many nonwhites support it.

                    4. “You gonna argue Affirmative Action is the real white supremacy”

                      You’re demonstrating the problem: Is white supremacy the only form of racism you can acknowledge?

                      Affirmative action isn’t “racism”, but it IS “racist”, because it assigns benefits and costs on the basis of race, not individual history. And only from a racist perspective does that seem reasonable.

                      The kind of collective guilt that says somebody should benefit at another person’s expense only because of their race is no less racist when the benefits are flowing in one direction than the other. And why should Peter care that you’re robbing him for love of Paul, rather than hatred of Peter?

  8. Race does not exist — why keep a progressive, white supremicist crappy science I do not know …

    You do not see your white supremacy because you do not want to. I suspect you get your self worth not from a relationship with God or any actual true achievements, but feeling “superior” to others because you hold the “enlightened” positions. Pish Posh.

    That racists of various hues and ethnicities approve of a “racist” policy that benefits them comes to NO surprise.

    And I did not talk about “distinction,” I asked about discrimination. Southern Democrats wanted a “safe space” to ride to work so they forced segregation. They wanted to protect and celebrate their distinct culture in their “historic neighborhoods” so they enacted covenants to fight gentrification … er I mean … having “those” people move in.

    You sure this is what you want to defend?

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