Lithwick’s History


Traditionally (and what is conservatism if not respect for tradition?) conservatives have railed against “Constitutional tinkering,” while progressives have proposed all manner of amendments—some successful (women’s suffrage), others not (equal rights for women), still others, well, a bit unserious (a ban on “war for any purpose”)

Actually, support for women’s suffrage didn’t break down along Progressive/non-Progressive lines. For example, Senator George Sutherland of Utah, later to gain fame as a “conservative” Supreme Court Justice, introduced the women’s suffrage amendment in the Senate. His “progressive” Supreme Court colleague, Louis Brandeis, was not a feminist and was a belated and somewhat reluctant supporter of women’s suffrage.

With regard to the Equal Rights Amendment, it was drafted by Alice Paul and the National Woman’s Party with advice from, you guessed it, George Sutherland. While some feminists who were also progressives supported the ERA, individuals who primarily considered themselves progressives, such as reformer Florence Kelley, opposed the ERA because it made no exception for “protective” labor legislation that only applied to women. Prominent Progressives like Felix Frankfurter condemned “the Alice Paul theory of constitutional law, which is to no little extent a reflex of the thoughtless, unconsidered assumption that in industry it makes no difference whether you are a man or woman.”

Conservatives looked at the Constitution in the 1920s and 1930s and thought it chock-a-block with ill-advised amendments. There was plenty of grousing on the right about the 14th and 15th (establishing civil rights for African-Americans),

Putting aside the fact that “conservative” natural-rights believing Congressmen pushed these amendments to begin with, it was progressives (again including Brandeis), not conservatives, who wanted to repeal the Fourteenth Amendment in the 1920s. While progressive objections primarily related to the protection of property and contract rights under the amendment, the Supreme Court’s first major case enforcing the Fourteenth Amendment to the benefit of African Americans, Buchanan v. Warley, met with general condemnation in Progressive circles.

Nor, contrary to Lithwick, have conservatives not proposed amendments in modern times. Conservatives successfully proposed the 22nd Amendment, limiting the president to two terms. Just offhand, two of the most prominent movements for amendments in modern times have come from the right, the Bricker Amendment in the 1950s, and the balanced budget amendment in the 1980s. And of course, amendments banning abortion and same-sex marriage are standard fare on the Christian right.

UPDATE: Just saw Orin’s post below. Didn’t mean to establish “pick on Lithwick Day;” on the other hand, the criticism is well-deserved. And it’s not the first time.

FURTHER UPDATE: I’m well aware, and have noted many times on the blog, that modern “progressives” and early 20th century “Progressives” are two different animals (and the same is true of “conservatives”). But for the purposes of this post, I’m running with the definitions that Lithwick herself is using, to show that even accepting these definitions at face value, she’s wrong.