Occupy and the Constitution, Part 2

OWS is a critique of the system of American democracy and how the engines and devices of American democracy have been perverted for the benefit of the 1 percent and to the disadvantage of the 99 percent. This critique is clearly about the Constitution. And if we look at the text of the Constitution, we will see why that is so.

The American Constitution is the framework for a democratic republic. A democratic republic, in turn, is system of government that is designed to be responsive to the people of the United States as a whole, and not to the wealthiest 1 percent.

[...] A broken government, unresponsive to the public, is more than a misfortune. It is a violation of our basic charter-- our Constitution.  - Jack Balkin

Part 2 of 2. (Here is Part 1.)

As Occupy continues to march forward, it is important that we try to understand the role the Constitution, and the interpretation of it, will necessarily play in the articulation, execution and achievement of Occupy and progressive objectives. In the Jack Balkin article I excerpted above, I think he really gets to the heart of the Constitutional matter regarding what Occupy is about. In this piece, I will discuss two theories of constitutional interpretation that I believe are relevant to how Occupy approaches the Constitutional questions that its objectives raise.

I've written before (see, for example, Prof. Jack Balkin on Living Originalism and the constitutionality of the Affordable Care Act) and I attended a conference at Yale discussing the ideas in Balkin's book, Living Originalism. These writings and the conference got me to thinking about how to impart the critical importance of these issues to fellow progressives. My article last week and what follows is my meager attempt to do so.

Last week I concentrated on Professor Sanford Levinson's idea of a constitutional convention. This week, I turn to the related but somewhat competing ideas of Yale Law professors Balkin and Bruce Ackerman. Ackerman's theory posits the idea of "Constitutional Moments." In a review of Ackerman's 1991 book on this theme, WE THE PEOPLE: FOUNDATIONS, Cristy Scott described it thusly:

Ackerman postulates a constitutional structure that grants the Supreme Court the role of preserving law created by the People during highly energized moments of collective political activity. During these periods of extraordinary political mobilization, the People clearly express their wishes concerning issues of higher law. As the energy and collectivity of the populace fades and we return to "politics as usual," the Supreme Court must modify its constitutional adjudication to account for the law created during this constitutional moment, and the Court actively must protect this new constitutional law from erosion or violation. Because of this two-tiered lawmaking structure, consisting of "constitutional moments" and "politics as usual," Ackerman calls the American system a "dualist democracy."

 

In June, the Roberts Court will hand down its decision regarding the constitutionality of the Affordable Care Act and the individual mandate. Depending on the reasoning followed, this could be the most significant decision regarding our system of government since 1937, when the New Deal style national government became "constitutionalized." What can it mean for progressives generally and Occupy specifically? I'll explore that and how the theories expounded by Professors Ackerman and Balkin provide ways of thinking, not only about the ACA decision, but the Constitution itself, in a manner which may lead to smart strategic activism by progressives and Occupy. A discussion on these themes will occur on the flip.

(Continue reading below the fold)