Deb and Dahlia , I think Scalia’s argument resonates because it is rooted in populism. My sense is that this leaves liberal constitutionalists with two basic ways to sell the competing product. First, try to out-populist the populists. And second, focus on the results.
To see why, let’s start with a paragraph by Professor Brown that Deb describes as one of her favorite sound bites about liberal constitutionalism:
The key to democratic legitimacy is the Constitution’s ability to provide a structure within which the polity can continue to exerciseits right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.
The problem with this, I think, is that “expanding” the “rights-bearing terms of the Constitution” is a complex way of saying that judges should introduce new limits on what the elected branches can do. The basic claim, as I understand it, is that democracy becomes more legitimate when judges remove undesirable options from “the People.” But that’s a pretty hard argument to make to the public. Notions of democratic legitimacy are usually based on the consent of the governed, not the consent of the judges.
In contrast, Justice Scalia’s view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it’s up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it’s “we the people.”
What does this mean for those who want to sell liberal constitutionalism to the public? I think it leaves open two basic options. The first is to try to beat Justice Scalia at his own game: Argue that limiting choices actually leads to better democracy. The idea here is that some limitations on democratic rule making actually enhance democratic rule making. This is a very popular move among academics, although it can be hard to sell to the public. The problem is that it’s tough to reach consensus on why limiting choice is good for people and which choices should be limited. Theories abound from John Hart Ely through Justice Breyer and onward, but it’s hard to pick just one theory above the rest. (Should we go with “Representation Reinforcement” today? Or “Active Liberty”?) The argument quickly splinters into many distinct academic claims, making it hard to coalesce around a single message.
The second option is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia’s world or ours? I think this is usually the most effective way to sell liberal constitutionalism. The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones. A lot of people will respond, sensibly enough, that good results beat out the potential for bad ones. This approach wins no prizes for theory, but my sense is that it often proves pretty effective in the court of public opinion.