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What Liberals Want

A progressive conference on the Constitution sheds light on the real stakes involved with the judiciary.

12:00 AM, Apr 19, 2005 • By JOHN HINDERAKER
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* Idea of a national citizenship is powerful and underdeveloped legal resource . . . .concept that national citizenship has privileges--we need to make this a reality--cure disenfranchisement for felons.

SUNSTEIN AND ACKERMAN disagreed on some points, such as, for example, a constitutional right to housing. Ackerman said:

Well, public housing has failed. It's a mistake to declare the right to a home. Better way to do it is special purpose monies. Wallet of the future is a set of different monies--patriot dollars, health dollars--each with a different distributional value.

Ackerman concluded by articulating his key area of agreement with Sunstein:

We share the thought that the progressive vision of frameworks centers on the economy--needs to be constitutionalized in frameworks to make real the notion of a common citizenship.

ON THE SECOND DAY of the conference, a panel on "social and economic inequality" continued to sound the theme that the Constitution should require the enactment of liberal legislation. Participant Robin West said:

* Equal Protection clause is inconsistent with state that does little or nothing about social and economic inequalities. Implies the existence of positive welfare rights--education, police protection, healthcare, childcare, etc.

* 14th Amendment delegitimizes social and economic inequality.

* We need to develop argument that Constitution requires this type of legislative response (protect vs. winner take all economy).

The left makes no secret of its intentions where the Constitution is concerned. It wants to change it, in ways that have nothing to do with what the document actually says. It wants the Constitution to enshrine its own policy preferences--thus freeing it from the tiresome necessity of winning elections. And how will the Constitution be changed? Through a constitutional convention, or a vote of two-thirds of the state legislatures? Of course not. The whole problem, from the liberal perspective, is that they can't get democratically elected bodies to enact their agenda. As one of the Yale conference participants said: "We don't have much choice other than to believe deeply in the courts--where else do we turn?" The new, improved Constitution will come about through judicial re-interpretation. It only awaits, perhaps, the election of the next Democratic president.

IF THE IDEA OF A CONSTITUTIONAL RIGHT to government-funded child care, "adequate" recreation, and $80,000 in cash seems outlandish, remember that these concepts are no more eccentric than the idea of a right to abortion was, prior to Roe v. Wade. As a law school exercise in 1972, my class was charged with trying to formulate an argument for a constitutional right to abortion. We were stumped. None of us could think of one. A few months later, the "right" to abortion was born.

So Republicans are right to put top priority on the president's ability to get a vote on his judicial nominations. Liberal interest groups have flatly declared their intention to filibuster any nominee to the Supreme Court whom they regard as conservative. The stakes couldn't be higher.

John Hinderaker is a contributor to the blog Power Line and a contributing writer to The Daily Standard.