What Liberal Constitutionalism Has Going for It

I would amend Orin Kerr ‘s remarks about liberal constitutionalism slightly. There are three things liberal constitutionalism has going for it, three reasons why it is superior to the snake oil that Justice Scalia has recently been selling in public.

First, liberal constitutionalism is committed to protecting people’s rights—rights that most Americans have come to take for granted, including freedom of speech and equality for blacks and for women. Justice Scalia’s originalism can’t account for many of these results except as mistakes made by previous judges that we are stuck with. Orin rightly emphasizes the power of the populist belief that We the People decide how we will govern ourselves. I would add that belief in basic rights is every bit as populist—and deeply rooted in American traditions—as belief in majority rule. The Declaration speaks of equality and inalienable rights even before it talks about the consent of the governed. It tells us that protecting rights is why governments are formed. We live in a rights culture; people don’t like it when their rights are abridged. And history shows that Americans will fight for their rights if they believe that governments threaten to abridge them. Protection of rights and consent of the governed are two key ideas of the Declaration. We must keep both in mind in understanding why our Constitution is great.

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