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Liberals Launch Firm for Constitutional Fights
Well-funded progressive group takes a page from conservative efforts
Legal Times
June 06, 2008
Doug Kendall, executive director of Community Rights Counsel.
Image: Diego M. Radzinschi / Legal Times
The United States Constitution: It's not just for conservatives anymore.
With that thesis in mind, a new liberal think tank and public interest law firm launched in Washington, D.C., on Tuesday, hoping to catch a progressive wave in both election politics and scholarly research on the meaning of the nation's founding document.
"There's nobody out there systematically making the argument that the Constitution's text and history are on the progressive side," says Douglas Kendall, founder of the new Constitutional Accountability Center. "The Constitution is, in its most vital respects, a progressive document."
To spread the word and take it into court, Kendall has assembled liberal stalwarts -- and liberal money -- to back his effort and support his view that, unlike unsuccessful liberal efforts in the past, his approach of embracing the Constitution's text has the best shot of recapturing the constitutional high ground from conservatives. Yale Law School's Akhil Amar and Jack Balkin and Duke's Walter Dellinger are advisers, and George Soros' Open Society Institute is a major funder. Ron Klain, former chief of staff to Al Gore and now an investment adviser for progressives, is also on board. Startup money totals nearly $2 million.
Kendall's 10-year-old public interest group Community Rights Counsel, which used text-based arguments to fend off constitutional attacks on environmental laws, will close and morph into the new organization.
"We should embrace the Constitution rather than conceding it," Amar says. "It is not the unique inheritance of conservatives." Amar thinks the conservative Federalist Society has been "hugely successful" in shaping the debate over the Constitution for years, and the time is right to fight back.
The American Constitution Society, the liberal counterpart to the Federalist Society, is also supporting Kendall's new organization. "He is taking on conservatives on their own terms," says the society’' executive director, Lisa Brown. "It's absolutely time to reclaim this debate."
THE CONSERVATIVE MODEL
Ever since the start of the Reagan legal revolution in 1980, Kendall says, conservative judges and thinkers have laid claim to the Constitution's language, basing their legal arguments -- genuinely or not -- in "originalism" or "textualism," while painting liberal positions as rootless judicial activism. Liberals responded, Kendall says, by distancing themselves from the words of the Constitution, fearing that it produced bad results.
Kendall wants to debunk that view and supply the research and support that will enable liberals to seek progressive results by using arguments based on constitutional text and history. (Kendall avoids the word "originalism," a term with no fixed meaning, in his view.)
"For progressives, this feels like the 1980s," Kendall says. "Conservatives then were like progressives now -- planning for a long struggle to take control of the direction of the Constitution and the courts."
For example, Kendall wants his research to empower presumptive Democratic presidential nominee Sen. Barack Obama, D-Ill., to say he will appoint federal judges who are faithful to the Constitution -- rather than using traditional rhetoric that makes him vulnerable to criticism. The GOP's presumptive nominee Sen. John McCain, R-Ariz., pledges not to appoint judges who "disregard the Constitution," while Obama said in March, "I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through."
In polling before launching his group, Kendall says, he found that kind of language does not resonate as much as the conservative mantra of fealty to the Constitution. "People want judges to be accountable -- accountable to the Constitution," Kendall says. Hence, the name of the new group. "We won't make arguments unless there is solid foundation in text and history."
No other liberal legal group is focusing on this approach in the same way that conservatives have for years, Kendall says.
The new organization is a big step for the soft-spoken Kendall, 43. His community rights group made its name quietly in the public interest community with environmental cases and its battle against judicial "junkets" -- educational seminars for judges, sponsored by groups with pro-business agendas. "I couldn't pick Doug out of a lineup," says Amar, who participated in a launch press conference on Tuesday.
But Kendall's group built a reputation for success in the environmental cases, and new rules have made judicial seminars more transparent. "We won ourselves out of business," Kendall says.
Kendall was inspired to reinvent his organization in part by Amar's scholarship. Amar's acclaimed 2005 book "America's Constitution: A Biography" describes a document which, with the post-Civil War and Progressive Era amendments, is more democratic and egalitarian than previously considered.
But Amar says that he is far from the first to invoke the Constitution's text for progressive causes. "Before there was Thomas, before there was Scalia, before there was Bork, there was Hugo Black," he says. He recalls a 1968 CBS interview with the late Justice Black, who waved his copy of the Constitution in answer to questions. "He was the greatest textualist there was."
Black's invocation of the Constitution's text, says Amar, formed the basis of the Warren Court's expanded protection of free expression, defendants' rights, desegregation, separation of church and state, and the concept of "one person, one vote."
Today, these same concepts and others can be embraced and advanced as "morally attractive and historically sound," Amar says. "We need to reintroduce Americans to the vocabulary of the Constitution. It has been hijacked and commandeered by conservatives, and acquiesced to by liberals."
In court, Kendall plans to file amicus briefs making Constitution-based arguments, which he says are "the best arguments to make before conservative judges."
His group's first brief may be on behalf of states supporting California in litigation against the Environmental Protection Agency. The agency denied California a Clean Air Act waiver that would allow the state to regulate greenhouse gas emissions from cars. Kendall will invoke federalism -- another constitutional concept that conservatives have "owned" for decades -- to argue that states like California should be allowed to experiment.
Kendall sees the center making constitutional arguments on a range of other issues, from the citizenship of children of illegal immigrants, to tort reform and federal pre-emption, to civil rights issues based on the 14th Amendment’s privileges and immunities clause. The organization will also get involved in judicial nomination battles, as Kendall's former group did.
'MORE THE MERRIER'
At this early stage, conservatives are reacting to the new organization with a "more the merrier" approach.
"The left-wing groups most prominent in judicial confirmations cling to an ugly strategy of smear campaigns," says M. Edward Whelan III, president of the Ethics and Public Policy Center and a former clerk to Justice Antonin Scalia and Bush Justice Department official. "Doug Kendall has the good sense and the talent to seek instead to engage in a serious debate about constitutional interpretation."
Pepperdine Law School professor Douglas Kmiec, an official in the Reagan and George H.W. Bush administrations who recently endorsed Obama, says, "I like the idea a lot." His only quibble is the group's name. "Something more accommodating -- like constitutional dialogues for the 21st century" would be a better description, he says, than "constitutional accountability," which comes across like a put-down of conservative thinkers.
Adds Kmiec: "We are well past the time of dividing into interpretive camps or simply engaging in fruitless caricature of each other's position."
