Progressive Constitutionalism and Alternative Movements in Law

Abstract

Some of the most important legal theorists of our time have proposed to expand the role of lay participation in acts of constitutional interpretation. They argue that doing so would transcend, if not transform, our current legal regime by returning authority to “the people themselves” to deliberate about the U.S. Constitution - either through the representative process or through direct action and social movement activism. This article examines a particular strand of that movement - progressive constitutionalism - which combines a bottom-up, anti-authoritarian impulse in law with aspirations for left progressive social change. We compare progressive constitutionalism to an analogous (albeit more private and small-scale) set of ambitions embodied in a strand of early ADR. We caution that, as a matter of actual practice, the progressive potential of ADR gave way to a discourse of management, service delivery, and efficiency. At the same time, however, we argue that ADR’s legacy today is not simply a set of private, managerial, bureaucratic institutions dedicated to court reform and efficiency maximization. It is also five alternative jurisprudential ideals - what we call “the laws of alternatives” - that have been developed by legal scholars and practitioners over the past four decades and continue to inspire renewed and now often large-scale aspirations for the progressive possibilities of collaborative dialogic exchange. We apply these “laws” or principles to evaluate an example of extrajudicial constitutionalism in action - namely 2009 town hall meetings about health care reform in the United States. We conclude by arguing that these five laws offer insight into, first, how bottom-up, democratic impulses in law are transformed into institutionalized, practical, and seemingly apolitical projects and, second, the possibilities and tradeoffs of pursuing progressive constitutionalism through similar means.

Keywords: Alternative dispute resolution, progressive constitutionalism, popular constitutionalism, Tea Party, town hall meetings