Should Progressive Constitutionalism Embrace Popular Constitutionalism?

There are two conceptions of progressive constitutionalism explored in this Symposium. The first is of progressive constitutionalism as, first and foremost, a programmatic agenda, focused on how progressives’ “distinctive constitutional vision may best be transmuted into claims of constitutional law.”1 To the extent that this constitutional vision entails only a set of policy preferences (e.g., freedom of choice concerning abortion, progressive taxation, economic and social rights), a key ambition of progressive legal scholars will be to produce a progressive theory of constitutional interpretation that will enhance the likelihood that law consonant with these commitments will survive judicial scrutiny. But progressives claim to aim at a constitutional theory that is not merely reducible to a set of left-liberal policies—in Jack Balkin and Reva Siegel’s language, a “redemptive constitutionalism,” the “basic premise” of which is that “our Constitution is always a work in progress,” a “bond with the future, expressing commitments that the American people have yet fully to achieve.”2 This takes a strategic cast as well. In Marc Spindelman’s words, crediting Robin West, “progressive politics—and the freedoms towards which they aim—would stand a better chance of success than they presently do if the Supreme Court were to stand back and give the political processes their head.”3 This is the second conception of progressive constitutionalism, one that is tied to popular constitutionalism. It is an account of constitutional emergence and