The article's central thesis is that the understandings of the constitutional tradition most central to both paradigms are determined by sometimes implicit, but more often explicit, political dispositions toward various forms of social and private power, and the normative authority to which social and private power gives rise. Very broadly, conservative constitutionalists view private or social normative authority as the legitimate and best source of guidance for state action; accordingly, they view both the Constitution and constitutional adjudication as means of preserving and protecting that authority and the power that undergirds it against either legislative or judicial encroachment. Progressive constitutionalists, in sharp contrast, view the power and normative authority of some social groups over others as the fruits of illegitimate private hierarchy, and regard the Constitution as one important mechanism fo~ challenging those entrenched private orders. Where the conservative is likely to see in a particular social or private institution a source of communitarian wisdom and legitimate normative authority, the progressive is likely to see the product of social or private hierarchy, and the patterns of domination, subordination, and oppression that inevitably attend, such inequalities of power. The profound substantive differences between the conservative and progressive understandings of what the fourteenth amendment requires, and of the meaning of constitutionalism more generally, are rooted in these contrasting political attitudes toward social power. Correlatively, the debate presently ongoing between progressives and conservatives is only superficially over interpretive issues; on a more substantive level it is over the value of the visions of the good defined by the various hierarchies that make up our private and social life.
Progressive and Conservative Constitutionalism,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol88/iss4/2