Highly speculative and doctrinally out-to-sea, these suits cannot be about the law. As their timing shows, they are a continuation of politics by other means. . . .In filing these lawsuits, the attorneys general and their allies have picked up on an emerging current of popular constitutionalism, and ratified it with the dignity of official sanction and a space on the national political stage. Even if these suits fail, the constitutional ideas that animate the complaints and that bubble through tea party rhetoric will be raised again to the attention of a wide public and given new credence.
By contrast, one is hard-pressed to find any such movement linking popular constitutionalism and effective national political actors on the progressive side. These lawsuits should thus be an embarrassment and worry for progressive constitutionalists, who have not articulated a general vision of the Constitution that finds resonance among a wide populace. They should be an embarrassment for the White House, which has generally opted for “safe” and “moderate” picks for the federal bench–not judges with vision. On the right, judges pick up and carry forward popular constitutionalism impulses. On the left, they play a fragmented defense that Obama apparently doesn’t care to improve.
Even progressive commentators like Jay Rosen can’t seem to imagine a “third way” beyond Left and Right other than libertarian. If supporters of health care reform can’t get the debate to turn to real pocketbook issues like insurance rate regulation, they will forever be stuck arguing about “first principles” in a media landscape stacked against the very idea of social insurance.