Jack, thanks very much for your response to my post on selling liberal constitutionalism . Your post tends to confirm my sense that there are two basic ways to sell liberal constitutionalism: First , try to out-populist the populists, and second , focus on the results.
Here’s a reading of Jack’s post with my two categories in mind. If I’m not mistaken, all of the moves fall nicely into one of the two approaches. Jack starts with Approach No. 2, results: L
iberal constitutionalism is good because it protects important rights “that most Americans have come to take for granted, including freedom of speech and equality for blacks and for women.
” He then moves to Approach No. 1, trying to out-populist the populists: Liberal constitutionalists are together with the people because they share a belief in “basic rights,” while Scalia and his ilk are out of touch because they do not share these beliefs.
Jack’s post then returns to Approach No. 2, results: Liberal constitutionalism brings about freedom, justice, and equality, while Scalia’s type would invalidate lots of good laws. The rest of the post is back to Approach No. 1, out-populist the populists: Scalia is a trickster defrauding the people by selling them “snake oil,” the argument runs, while liberal constitutionalists are “honest” and “faithful” to the people and not trying to trick them at all.
Of course, different people will disagree about whether Jack’s arguments are persuasive. But my sense is that the arguments draw from the two moves I offered above.