Kendall founded the Constitutional Accountability Center as counterweight to influential conservative thinking.

By Tony Mauro 

Doug Kendall, who founded the Constitutional Accountability Center seven years ago and built it into an influential counterweight to conservative legal thinking, died on Sept. 26 at age 51.

The cause was colon cancer, according to an announcement by the Washington-based organization. Kendall was diagnosed more than two years ago, but did not spread the news of his illness much beyond colleagues and close friends. He is survived by his wife Juliet and daughter Miracle.

“Everyone on the staff is grieving. He was a great friend and mentor,” Judith Schaeffer, vice president of the center, said Sunday. The center’s board of directors on Sunday named Schaeffer as acting director. She agreed to serve for the time needed to manage the center’s transition.

Board chairwoman Eldie Acheson said: “There is no better way for us to honor Doug’s life than by continuing his life’s work, building on his extraordinary vision for the arc of our Constitution’s progress.” The center’s staff has grown from a handful in 2008 to 15 today.

Chief counsel Elizabeth Wydra, the first lawyer Kendall hired when the center launched, said, “Even though I knew how serious this was, he was so young and so vital, I thought he would beat it.” Wydra added: “We were true believers in the mission, and we were true believers in Doug too.”

That mission from the beginning was to confront influential conservatives in the ongoing debate over the Constitution’s meaning. After years of listening to conservative “originalists” lay claim to their own reading of the Constitution’s text, Kendall felt it was time for liberals to rejoin the conversation with a “new textualism” or, as others called it, “progressive originalism.” Kendall avoided the word “originalism” as too vague to be meaningful.

“The Constitution is, in its most vital respects, a progressive document,” Kendall said before the launch of the Constitutional Accountability Center in 2008. “There’s nobody out there systematically making the argument that the Constitution’s text and history are on the progressive side.”

Kendall was determined not just to debate but to act on his liberal view of the Constitution. He joined Supreme Court litigation with friend-of-the court briefs and as a strategist for liberals seeking to sway the largely conservative court. Schaeffer said the center has already filed six briefs in Supreme Court cases for the coming term. “Members of the Supreme Court bar respected him. You could see from his interactions in the lawyers lounge,” Schaeffer said. In 2011, The National Law Journal named him as a visionary.

“Doug was a doer,” Yale Law School professor Akhil Amar said Sunday. “He created something out of nothing.” The conversation about the Constitution has changed as a result of Kendall’s vision, Amar said, calling it a revival of “the Hugo Black tradition of originalism for liberals.”

In one of his last public appearances, Kendall in late May led a conversation with Amar, an adviser to the center, at the National Archives. Kendall described Amar as a “great friend and mentor to me,” adding that Amar’s book America’s Constitution: A Biography was “the basis on which my organization has been built.”

Walter Dellinger, partner at O’Melveny & Myers said Sunday, “Doug played a critical role in the defense of the Affordable Care Act by marshalling the best arguments in his own briefs and skillfully working to coordinate the efforts of others.”

Mayer Brown’s Andrew Pincus also said Kendall’s contribution went beyond filing briefs. “By creating CAC and making it a center of constitutional scholarship, particularly showing that originalism supports progressive interpretations of the Constitution, Doug made a huge contribution to constitutional interpretation.”

One example of Kendall’s approach was to borrow federalism, a doctrine usually used by conservatives to protect states’ rights, and deploy it instead as a progressive tool for allowing states like California to experiment with stronger environmental protection than called for under federal law.

Kendall also saw the long-dormant “privileges or immunities” clause of the Fourteenth Amendment as a powerful “lift all boats” foundation for a range of civil rights protections. In an effort to revive it, Kendall in 2009 joined with conservatives in a brief arguing that Second Amendment rights were protected from state interference by the privileges or immunities clause.

“The conversation on this clause has begun, and there are very important progressive values at stake in the outcome,” Kendall said at the time. “We need to be in that conversation.”

‘Vital contribution’

Georgetown University Law Center professor Randy Barnett, who was one of the conservatives on that brief in McDonald v. Chicago, said in a Sunday post on the Volokh Conspiracy blog that even though he often disagreed with Kendall, “the briefs and arguments submitted by the Constitutional Accountability Center make a vital contribution to the adversary process by which claims of original meaning should be vetted. Doug Kendall was a true gentleman who loved the Constitution.”

Before launching the center, Kendall spent 10 years as head of the Community Rights Counsel, which focused on environmental litigation and also pushed the federal judiciary for more transparency about judges’ attendance at subsidized seminars. Federal judges are now required to disclose their participation in such events.

A few days before Kendall died, Amar sent him a note expressing sorrow and admiration. “You are one of my heroes in life—a truly good and great man,” Amar wrote in the note, which he shared with the NLJ. He also said: “We are on the right side of history and justice, and none of what we have done—and will continue to do, as an organization—would have been possible without you.”