The Search for an Anchor: Living Constitutionalism from the Progressives to Trump

Abstract

Over a century after the Progressives’ devised “living constitutionalism,” its latter day adherents have fought conservatives’ originalism to an intellectual standstill and a political rout. Bookended by discussions of three books by legal liberals (Jack Balkin, Erwin Chemerinsky, Geoffrey Stone and David Strauss) and a book and article by progressive constitutional scholars (Mark Tushnet, David Pozen and Adam Samaha), this essay argues that legal liberalism today is intellectually exhausted. In developing a “critical constitutionalism,” those to their left have better identified constitutional law and theory’s pathologies and potential. The overarching claim is that professional and ideological factors have led legal liberals to misapprehend the uses and limitations of constitutional theory. The essay concludes by suggesting legal liberals move past debates about originalism and begin to think anew about what (legal) liberalism has to offer American constitutionalism.