Progressive Visions of Jurisprudence: A Debate

Over the past three decades, conservatives have articulated a coherent set of expectations of the Supreme Court and the federal judiciary that has proven compelling to the public and marketable in the political arena. By contrast, progressives have floundered both in developing any sort of consensus as to what they want from the courts and in describing their expectations to the public at large. Progressives have a number of competing visions of what a liberal jurisprudence might look like and how a liberal court would behave—visions that differ almost as sharply with one another as they do with conservative views on the Constitution and the courts. The current issue of the journal Democracy features a debate between two of these competing visions of liberal jurisprudence, pitting an essay urging a “Framers’ Constitution” – the idea that the principles set forth in the Constitution do not change, but that interpretation must evolve over time – against one arguing for “New Textualism” – a theory that asserts that progressive values are inherent in the Constitution’s text, history and structure, and that liberals should base their constitutional arguments, first and foremost, on text.

On July 18, the Brookings Institution hosted a Judicial Issues Forum debate with two of the authors of these papers, Douglas Kendall of the Constitutional Accountability Center and Geoffrey Stone of the University of Chicago Law School. Brookings Senior Fellows E.J. Dionne and Benjamin Wittes moderated the discussion.

After the program, panelists took audience questions.