The field of constitutional law has always featured a great deal of what’s known as “motivated belief” where people look at the document and tend to see it as supporting their preexisting policy conclusions. Ezra Klein had a great post on this yesterday. Since the 111th Congress saw Democratic control of the House of Representatives, Democratic control of the Senate, and Democratic control of the White House paired with an overwhelming Republican preponderance in the federal judiciary we saw in particular a huge upsurge in conservative belief that the constitution prohibits Obama/Pelosi/Reid policies.
One thing worth saying about this, is that I think a lot of this kind of constitutional thinking constitutes a form of pernicious dreaming about the post-political utopia. Like what if the constitution really did entrench conservative policy preferences? What would happen then? We’re imagining that the structure of mass and public opinion are the same, and so is the structure of interest group politics. But suddenly most of the stuff progressives want to do is unconstitutional. What happens next? Do progressives all go home and just give up? That doesn’t seem realistic. Do progressives stage a violent revolution, arguing that it makes no sense to let the dead hand of the 18th century block social justice in the 21st? That doesn’t seem desirable.
The most likely outcome, and the most sensible one, is for progressives to just do what conservatives do—try to win elections and appoint judges who interpret the constitution in a way that’s friendly to progressive policy aims.