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.