Amna Akbar, Sameer Ashar, and Jocelyn Simonson –
In this moment of crisis for the rule of law, a number of thinkers on the left have prescribed new strategies for progressives to shift reigning ideas about constitutionalism and the law. Jedediah Purdy, for example, has argued that part of the answer is to “reclaim the Constitution” by articulating visions of how constitutional rules can promote true democracy. In Purdy’s view, strengthening voting rights and the rights of non-citizens, promoting economic citizenship, and reforming the criminal legal system should be central to a left vision of the Constitution. He argues these substantive ideas pose a challenge to the status quo distribution of power, resources, and life chances. Eyeing a different branch of government, Samuel Moyn has urged progressives to resist the “juristocracy” and to shift our vision for change away from the courts and towards legislators at all levels. Moyn bases his analysis on the idea that in the short term, legislatures will be more likely than Trump-appointed judges to enact laws that reduce inequality.
Purdy and Moyn generate important insights for left lawyers and social justice activists. But neither identifies where we should look for the substance of left legalist vision, or the process by which we should derive one. How is it that we, as progressives, should generate and evaluate the desired ends of constitutional doctrine or legislative change? Addressing this question is essential for a renewed left legalism of the sort this blog and its community hope to provoke.
As we suggested in our prior piece, we believe a left political agenda must be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces. (Willie Forbath, too, recently gestured on this blog at the relationship between social movements, labor, and left legalism.) The prevailing underlying presumption of much legal discourse is that the formulation and interpretation of legal doctrine requires specialized expertise. Past waves of left legalist critique, such as Critical Legal Studies, reflected this traditionally elitist approach to law by remaining confined within elite institutions and purveyed by law professors, sometimes in impenetrable language. Like Purdy and Moyn, we care deeply about democratic engagement, but we believe that the institutional choice between courts and legislatures misses the bigger picture: that a new left legalism should be derived from social movements fighting for justice on the ground.