Saturday, January 26, 2019

Why There is No Left Federalist Society

1/26/2019—This question was put on Politico by Evan Mandery and then responded to on the Mother Jones blog by Kevin Drum. Mandery correctly points out that the lack of a large idea is a problem. Drum disputes this.

The direct reason for no liberal Federalist Society is that there is no such thing as liberal constitutional theory. But why is that? Why is there no organized alternative to originalism?

Liberal, or Left, constitutional theory is not hard to imagine. You just merge the pragmatism of the framers about the size of government—big enough to counter private power—with an intention to protect human rights, written and unwritten.

So, why is this simple formulation never, never communicated? Because it would require the Left to come clean about rights. The framers thought rights were real—that is, independent of human formulations about them. (think the arc of the moral universe and justice).

But the Left today is anti-essentialism. You cannot say what human nature is or what the universe is. Rights are just made up.

No one wants to admit that the approach of the Left to rights is the same pragmatism as the approach to government power. So, no discussion of Left constitutional theory.

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