On January 22, the first anniversary of the Supreme Court’s Citizens United decision, I attended a summit called We the Corporations v. We the People, sponsored by the Coffee Party, a network of liberals, leftists and progressives. The summit was designed to rally support for a constitutional amendment to overturn Citizens United by declaring that corporations are not entitled to the constitutional protections of natural persons. But the attendance was sparse, the energy subdued, and the keynote speaker, Harvard Law professor Lawrence Lessig, urged the activists in attendance to scale back their ambitions and forego the push for a constitutional amendment, which he warned would not solve the problem of corporate corruption.
Things could hardly be more different on the right, of course. Conservatives are currently pushing a slew of constitutional amendments, ranging from proposals to repeal the federal income tax to proposals to allow two-thirds of the states to repeal any federal law or regulation. And these amendments are receiving full-throated support from party activists and members of Congress alike. This pattern has held for decades—recall the flag-burning amendment of the 1990s and the recent push to win a constitutional ban on gay marriage—and it raises a question: Why is it that these days only conservatives, and not liberals, seem to get excited about amending the Constitution?
The answer, in a word, is populism. Enthusiasm about constitutional amendments generally tracks closely with populist sentiment. Simply put, populist movements tend to expend energy on constitutional amendments; those that are more elite-driven do not.
Conservatives didn’t always dominate the market in constitutional amendments. During the last wave of progressive constitutionalism, at the beginning of the twentieth century, Harvard Law graduates like Louis Brandeis and muckraking journalists like Ida Tarbell helped mobilize grassroots support for trust busting and anti-monopoly laws by vilifying reckless bankers and oligarchs like J.P. Morgan and J.D. Rockefeller who took risks with “other people’s money.” At the same time, progressives pursued similar anti-corporate goals by successfully championing constitutional amendments that authorized a federal income tax and the direct election of senators.
But, as Alan Brinkley has argued, liberalism began to move away from this populist spirit in the middle of the New Deal, and, in the process, largely abandoned its interest in amending the constitution. The last real effort at constitutional change by the left—the Equal Rights Amendment—sputtered after liberals decided to focus not on building grassroots support but on persuading the Supreme Court to mandate gender equality. When the Court did so in a plurality opinion in 1973, it took the wind out of the sails of the political effort to ratify the ERA in the states. As Jane Mansbridge argues in Why We Lost the ERA, the Court’s premature intervention helped to ensure that the amendment was never ratified.
Meanwhile, in the wake of Roe v. Wade and other Supreme Court decisions applauded by the left, conservatives increasingly began to conceive of their movement in populist, anti-elitist terms. In 1980, when W. Cleon Skousen wrote The 5000 Year Leap, the book that would later become the constitutional bible of the Tea Party movement, he proposed 101 constitutional questions to ask political candidates. Skousen—importantly—was posing questions to future movement leaders, not drafting constitutional amendments; he understood that, when he wrote, his views were considered out of the political mainstream. But the ideas of Skousen and others helped to lay the groundwork for a revival of grassroots conservatism, especially grassroots conservatism that focused on the constitution. The result has been a barrage of proposed constitutional amendments in the last few years.
None of the constitutional amendments put forward by the right has passed, and none is likely to. But that doesn’t mean all this conservative energy surrounding constitutional amendments is wasted. Lower courts, for example, might not have had the confidence to strike down health care reform if the Tea Party hadn’t changed the terms of constitutional debate at the grassroots level—in part by garnering support for amendments that would radically limit federal power.
So the lesson here for liberals isn’t necessarily about passing constitutional amendments. It’s that, in order to have any success as a constitutional movement, they need to find some way to reconnect with populism. As Lessig understands, Tea Party constitutionalists and progressives today share some common goals in their outrage about the financial bailout, their shared opposition to corporate bigness, their anger about the role of money in politics, and their feeling of alienation from a government heavily influenced by Wall Street. “There’s a strong overlap” between the Tea Party and neo-progressive constitutional vision, Lessig said at the Coffee Party summit, “maybe not in a common objective but in a common enemy, which is corporate control.” If progressives want to be in a position to propose credible constitutional amendments again, they will need to resurrect the anti-corporate and anti-monopoly focus that they abandoned many decades ago.
Jeffrey Rosen is legal affairs editor of The New Republic.
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