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Jedediah Purdy @JedediahSPurdy
, 15 tweets, 3 min read Read on Twitter
1/ A provocative argument from @samuelmoyn against progressives' concentrating on judicial appointments and litigation. I'm generally sympathetic. A few thoughts in response.
2/ I agree w/Sam that there's a deep problem for democracy in the role judges play in the US--witness gutting the Medicaid expansion, undercutting the Voting Rights Act, nearly invalidating Obamacare entirely, etc.
3/ But rather than de-emphasize these fights, I'd urge using them to make the case for a constitutional vision of fundamental commitments that fit the energy and direction of progressive politics now: (A) recognizing the role of economic power in law, from campaign finance...
4/ ... to antitrust to arbitration agreements to union formation & structure; (B) advancing democracy by articulating a strong right to vote, in the face of suppression efforts, extending to revisiting felon disenfranchisement;
5/ (C) pressing principles of legal equality against racialized policing & incarceration + patterns of criminal justice that often leave the accused at the mercy of prosecutors; and (D) reviving and strengthening the principle of equal treatment of non-citizens generally.
6/ Why this approach? B/c although having an old, brief constitution interpreted by a handful of judges is a real problem for a democracy, and the judges' interpretations always ultimately reflect the political energies & loyalties that formed them & shape the age...
7/... for exactly that reason, successful political movements tend to create jurisprudence, versions of the Constitution & rule of law. Ideally these are at least rooted in strong democratic endorsement of their vision of equality, freedom, democracy, and the role of government.
8/ That was true of the jurisprudence of the New Deal--largely about empowering government to manage & reshape the economy democratically--and that of the Warren Court/Civil Rights era, a product of Cold War liberalism & the freedom struggles of the 1960s & earlier.
9/ The liberal retreat, defensiveness, & concentration on legal tactics that Sam points out are all at least partly symptoms of a period of political retreat--the long Goldwater-Reagan-Gingrich-Trump assault on the c20 liberalism that earlier jurisprudence embodied.
10/ Political mobilization is now re-forming on the left around stronger democracy, a real grappling with economic power & inequality, deep engagement with structures of racialized oppression, & the need to combat nativism & the exploitation of vulnerable newcomers.
11/ It should not turn away from constitutional engagement, but expand and deepen it as part of its claim on behalf of the country: It should say, "THIS is a Constitution for a future America."
12/ If there's a difference between Sam and me here, I think it's one of emphasis in these arguments. But my emphasis would be the Constitution is fundamentally about democratic self-rule--that's why it was popularly ratified as a form of higher law...
13/ ... with the goal of enshrining certain principles as fundamental for the political community. Self-rule means the rule of the living, and part of what a political movement does is to articulate these principles as part of the case it makes for itself.
14/ Such a vision can also include a case for judges doing less in key areas--less interference in economic policy, for instance--and deliberately root the force of the principles in living democracy. So I think we come around to the same place.
15/ But I want to know what everyone from @Ocasio2018 to Chuck Schumer would have judges do, on whose behalf, and why, as part of their case in this political moment.
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