When most people focus on the program of left-liberal constitutionalism, they naturally think of the expansion of unenumerated rights, from the right of abortion to same-sex marriage. But in my view the more important part of their current project is structural—to create centers of constitutionally protected power naturally inhabited by left-liberals and thus resistant to the vagaries of electoral control.
One example is campaign finance jurisprudence. The press has obvious influence on elections with its ability for agenda setting and framing. And the press is overwhelming left-liberal. One important check on that power is the ability of outside groups to raise money and buy advertising at election time. One might naively believe that these groups had the same free speech rights as the institutional press, but the entire thrust of left-liberal campaign jurisprudence is to provide constitutional protection to legislation that gives different rights to the press and citizens. Accordingly, this jurisprudence would protect a structure where an important left-liberal sector does not have as many competitors to its influence on an essential part of republican government–elections.
Another example is “diversity” jurisprudence. Here the left-liberal position is to allow universities maximum discretion to discriminate in favor of ethnic minorities and women in admissions and faculty hiring. Universities are another center of left-liberal power, and diversity practices further entrench that power in two ways. First, faculty who are hired on the basis of diversity policy are on average even farther to the left than the typical faculty member. Second, race and gender consciousness on campus generates greater demand for other leftist programs like more support for race and gender study departments and also sustains an even more perfervid opposition to giving a hearing to ideas on the right. Lest one think it is too cynical to believe that one purpose of “diversity jurisprudence” is to make universities less ideologically diverse, remember that in the Grutter case, university administrators openly said that the Cuban-Americans should not benefit from diversity because they were conservative.
The latest manifestation of this kind of jurisprudence is the new and vigorous defense of the administrative state and the civil service. Bureaucrats, like journalists, lean left—even farther left the median Democrat. Thus, it is not surprising that recently left-liberal scholars have been doubling down on defenses of the administrative state, arguing, for instance, against the constitutionality of the REINS Act that allows Congress the ability to block administrative rules.
One way to raise this policy position to one of constitutional significance is to observe that the administrative state provides an important check on the executive. But given the leanings of the civil service that check is much stronger on Republican administrations. Hence, for instance, the Justice Department cannot rely on ordinary attorneys in the Civil Rights Division to investigate Harvard’s alleged discrimination against Asians.
The fall Foreword essay in the Harvard Law Review even takes the position that the Constitution’s Take Care Clause may actually require a civil service in order to help the President carry out his constitutional responsibilities in a manner that protects institutional continuity. Professor Gillian Metzger, the article’s author, does not consider the possibility that the real way to allow the President to make sure that his view of the law is carried out is eliminating independent agencies and stocking agencies with more political appointees who share his views. That would be a way of making the President a more effective steward of the executive branch in both Republican and Democratic administrations. But providing a constitutional status to bureaucrats instead of political appointees, like empowering journalists instead of citizens, creates institutional pressure to move the nation leftward.