Jamie Raskin’s Battleplan for Liberals in the War Over the Constitution

In May, Representative Jamie Raskin, the ranking member of the House Oversight and Accountability Committee, lead manager in the second impeachment of Donald Trump in 2021, a member of the January 6 Select Committee, and a prolific constitutional law scholar participated in an interview with Slate’s Dahlia Lithwick. The Democrat’s pointed questioning and coiled energy in Congress and on television have made him, arguably, his party’s pointman on legal issues, and his conversation with Lithwick, a veteran legal journalist, merits wide circulation and focused attention from liberals, especially the Maryland congressman’s fellow politicians. Raskin’s remarks—summarized here and streamed here—drew a roadmap for liberals in the war over the Constitution. They should listen to the 61-year-old, who understands that the game is no longer about individual legal issues like abortion or regulation. It is about combatting a movement whose leader has “chosen to set [himself] at war against the Constitution itself.” Raskin counsels that demonizing “originalism,” the banner held high by conservative jurists, is not the best tactic for liberals, however apoplectic they feel in the face of a scandal-prone, super-majority of rightist justices given to incinerating rights and trashing laws.

Instead, Raskin sketched an originalist vision more persuasive than the legally spurious one offered by the right: “If you read the Constitution, and the Bill of Rights and the subsequent amendments the way I do, the vast majority of those seventeen amendments have been democratizing amendments.” The Constitution is not the document proposed by the 1787 convention, Raskin argues, but the entire document, including the “Second Founding” Reconstruction amendments, which abolished “involuntary servitude,” guaranteed U.S. citizenship to all persons born in America or naturalized, guaranteed “equal protection of the law” to all persons (not just citizens), and banned racial barriers to the ballot. It includes the Progressive Era amendments that empowered a national welfare state by validating federal income taxation, mandated popular election of senators, and barred voting discrimination “on account of sex.” Reading the Constitution as a seamless garment means that amendments are on equal footing with prior provisions. “Later generations of constitutional amenders reconfigure the system,” Akhil Amar of Yale Law School has observed.

Amar was among the first of the current generation of liberal originalist academics. (His predecessors include earlier liberal originalists such as the late U.S. Senator and Supreme Court Justice Hugo Black and Yale Law professor Charles L. Black). These liberal originalists’ most important contribution may be the insight that constitutional decisions are not made just by judges and lawyers but forged in what Amar has called a “constitutional conversation” and others have labeled “popular constitutionalism.” Reva Siegel and Robert Post of Yale Law School observed that whatever its philosophical or theoretical merit, the “originalism” label has proven a powerful weapon, one that “inspires political mobilization and engagement, [with an] uncanny capacity to facilitate passionate political participation.”

Until last month, no politician had connected the dots. Raskin illustrated how to deploy the words of the Constitution and the design of its framers to take on the predations of modern conservatives. Consider the Supreme Court’s ethics scandals. When Lithwick raised that controversy, Raskin responded,

“Let’s go back to the beginning. [James] Madison did say that it is a principal element of our jurisprudence that no one should be a judge in his own cause, in his own case, right? And the Supreme Court, they’re all judges in their own case who decide whether there’s a conflict of interest.”

A week later, Raskin penned a New York Times op-ed spelling out how to use Madison’s constitutional jurisprudence “to force Justices Alito and Thomas to recuse themselves in the January 6 Cases.” He noted that the Justice Department, as a party to those cases, had standing to petition the Court formally. It could ask the justices to rule on the constitutional and legal standards applicable to Supreme Court “justices” and all other federal judges that mandate “judicial disqualification for questionable impartiality,” expressly including cases in which a justice’s spouse’s interests could be affected. This strategy, Raskin explains, forces the Court to drop its dodge that individual justices, such as Clarence Thomas and Samuel Alito, decide how to comply with ethics requirements. “When the arguments are properly before the court,” Raskin wrote, “Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh, and Sonia Sotomayor will have [to rule on them] and enforce recusal standards.”

Raskin also offered four other strategic imperatives. First, as contemporary conservatives and iconic liberal leaders in past eras understood, writing politically charged constitutional interpretations into law requires political mobilization. There are, the Congressman wrote, “political, moral, ethical, and social movements in American history that infuse the law, infuse the legislatures in Congress, infuse the presidency, and infuse the courts, and it’s our job to create the movements that will put the Supreme Court back on the side of freedom and equality and justice in the people.”

What Raskin spotlights as “our job” is big, leading to the second strategic imperative: no magic bullet. Creating social movements potent enough to sway the right-wing justices will take a long time and require incessant mass persuasion.

Third, getting that job done means persuading voters to keep high-impact court battles near the top of their political priorities. Unfortunately, Right-wing legal ideologues have made this part of the job easier. See Dobbs.

Fourth and finally, to create the sort of “political, moral, ethical, and social movements” that Raskin prescribes, relevant constituencies must be persuaded that the Constitution embodies mandates for “freedom, justice, and equality” and be committed to “infusing” those mandates in governing institutions, especially but not exclusively the judiciary, and a critical mass of the electorate. That demands adroit messaging about what the law, the Constitution, means.

Liberals must “begin with the text, the language of the Constitution,” and then marshal its “legislative history and the purposes embodied in that history.” Such arguments carry weight, especially with lay audiences, for sound common-sense reasons. As Chief Justice John Marshall instructed, ours is “a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” Today’s liberals must reiterate ad nauseum that the Constitution—its words and architects—mandates flexibility for later generations to adapt to changing circumstances and values.

In this Weimar-like environment, the charge of liberal leaders, as Jamie Raskin explains and exemplifies, is to remind left and right that the Constitution enshrines government by “We The People.”

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