Liberals Need a Clearer Vision of the Constitution. Here’s What It Could Look Like.

<p>For decades now, the conservative legal movement has been on a mission to remake this nation’s laws from the bench. And it’s working. On Friday we released <a href="https://www.nytimes.com/2022/07/01/opinion/ezra-klein-podcast-kate-shaw.html" target="_blank">an episode with the legal scholar Kate Shaw</a> that walked through case after case showing how conservative Supreme Court majorities have lurched this country’s laws to the right on guns, voting, gerrymandering, regulatory authority, unions, campaign finance and more in the past 20 years. And if the Dobbs majority is any indication, this rightward shift is just getting started.</p><p>But this conservative legal revolution is only half of the story. The other half is just as important: the collapse of liberal constitutional thinking. Liberals have “lost anything that would animate a positive theory of what the Constitution should be,” says the legal scholar Larry Kramer. “And so they’ve been left with a kind of potpourri of leftover things from the periods when liberals were ascendant in the ’60s and ’70s.”</p><p>Kramer is a former dean of Stanford Law School, the current president of the William and Flora Hewlett Foundation and the author of“<a href="https://global.oup.com/academic/product/the-people-themselves-9780195306453?cc=ca&lang=en&" target="_blank">The People Themselves: Popular Constitutionalism and Judicial Review</a>.” And according to him, it hasn’t always been this way. For most of American history, politicians, from Jefferson to Lincoln to Franklin Roosevelt, believed that constitutional interpretation was inextricable from politics. And they put forward distinct visions of what the Constitution meant and the kind of country it was written to build. But then, in response to the progressive victories of the Warren court, liberals began to embrace the doctrine of judicial supremacy: the view that the final authority on the Constitution rests with the courts. This has resulted in both the conservative legal victories of the past few decades and