Monday, June 22, 2009

The new Constitution in 2020 blog

Please visit the new Constitution in 2020 blog at

The posts below were written in conjunction with the Constitution in 2020 Conference sponsored by the American Constitution Society at Yale Law School in April 2005.

Friday, April 08, 2005

“Progressive” – A Liberal in Sheep’s Clothing? -- post by Melody Barnes

It strikes me that we freely use the term “progressive,” but it isn’t clear that we have an articulable definition. While I’m not suggesting that we should or could reach consensus, I do believe we need to achieve some clarity. Right now, the progressive movement is dancing around the issue. We need to do more than erase “liberal” and substitute “progressive” or add “not” in front of “conservative.” Without some guideposts, it will be difficult for us to articulate our understanding of the Constitution and where we want to be in 2020; to define our understanding of the roles of Congress, the President, the courts, and state and local government; or to build a movement – distinct but related tasks.

At a recent conference – “New Strategies for Southern Progress” -- when asked to define “progressive,” journalist Hodding Carter III jokingly responded that a progressive is a liberal in sheep’s clothing. After the laughter died down, he provided an answer that I find personally appealing. He said, “A progressive is someone who remembers and reasserts repeatedly that the history of the United States is a history of constantly expanding opportunity, of constantly expanding the protection society affords those least able to protect themselves, and it is that history that makes the country great.” While meat needs to be added to those bones, I do believe he spoke to the essence of progressivism.

In the course of defining ourselves (hopefully before others do it for us), we should build a progressive narrative that includes our history and our vision for the future. If we probe history it may provide helpful clues to the questions before us. In past progressive movements, did improved democratic processes alone expand opportunity for masses of people or did the drive for improved processes work hand-in-glove with expressed substantive ideals? While many . . . most . . . all of us are disillusioned with the courts, how does the lens of history adjust our view of majoritarian institutions? How should past battles on the state and local level affect our vision for work in that area today? And, on that score, can we be more than outcome-oriented federalists? Perhaps those in academia are clearer in this area, but it hasn’t trickled down to policymakers.

History also speaks to our fumbling around the issues of values, morals and religion. Those are clearly uncomfortable terms for progressives. For cultural, historical and constitutional reasons, the conversations are complex, and added to the mix is the advent of a chilling and powerful conservative religious movement. I believe it is important to remember that part of our history speaks to the achievement of progressive goals through the coordinated work of secular and prophetic/progressive religious leadership. One doesn’t have to marginalize the other, and consistent with the writings of those like Bill Marshall and Melissa Rogers, work can be done well within constitutional parameters. “Values” are not conservative off-spring. Religious and secular, our work and constitutional view are rich with a broad sense of equality, fairness, and justice – sometimes we even vote against our personal/economic interests.

Finally, while defining ourselves, we also need to determine a coherent way to discuss our view of the individual’s relationship to government. Take the issue of privacy – specifically, abortion. Our core argument is that government should generally stay out of the abortion decision; that’s certainly the public relations message. But, those of us making that argument often pull government back into the fray when rejecting the Hyde amendment. This is just one example of our dilemma, and there are others. It is an issue we should consider – not just as an intellectual exercise but also to clarify our goals and views for the public.

The bottom line is that on our way to making the progressive 2020 Constitution real, I believe we must also address the base-line question: what makes us progressives.

-- Melody Barnes

Wednesday, April 06, 2005

Post by Seth RosenthalPost by Seth Rosenthal

Picking up on Jeff Berman's post from a few months back: Having entered the sometimes un-real world of nonprofit political advocacy a short two months ago, I have become interested in more than simply the crafting of a positive constitutional vision. More than anything, consistent with ACS's goals, I have become interested in the development of a vision that is readily articulated, captures the public imagination and infuses public discourse. If we believe that that such a vision has not yet been developed, our task is two-fold: developing the vision and learning how to articulate it. If, on the other hand, the vision we embrace is already largely developed, the work ahead seems to be more about politics, more about passionately and convincingly delivering the right message, than anything else.

Posts from people like Professor Sunstein and Minow suggest to me that perhaps we aren't thinking about something entirely new. Rather, as far as I can discern, we, or at least some of us, are talking about re-asserting a constitutional vision that once held sway and is still hanging on -- a vision, based on Katzenbach v. Morgan and the like, that provides broad legislative maneuvering room for progressive government and, only where necessary, limits government so as to prevent undue restraints on individual liberty. If this is what we're talking about, must we then simply learn how to advance a "strong narrative ... expressing why constitutional fidelity in no way requires the abandonment of the New Deal," as Jonathan Simon says?

Who knows. Certainly not me. But if this is the case, I remain optimistic. Recent polling shows that significant majorities do not prefer courts that would strike down worker, consumer, environmental and civil rights protections and roll back established individual rights. In other words, significant majorities, broadly speaking, do not favor much of what is happening -- largely beneath the radar screen -- in our federal courts today, or at least much of what legal conservatives want to happen. Is it so difficult to articulate a positive constitutional vision that reflects the worries of these majorities, a vision that exposes the Constitution in exile as bad history and bad law, as Professor Sunstein and others have tried to do in popular, if higher-brow, publications?

In the current political climate, we are, of course, always saying what we're against. But because there is much in our opposition that we can and should quickly turn into a positive constitutional vision, playing defense is not necessarily a recipe for inefficacy. That's because offense -- advancing the positive vision -- can go hand in hand with playing defense. With apologies for being simplistic and not wholly accurate, recent history, at least superficially, proves as much. Progressives railed against what they didn't like about the Supreme Court's Lochner era and early New Deal decisions but then turned their disapproval into successfully advancing the view that the Constitution provides Congress a wide berth to enact social reform legislation. Legal conservatives similarly condemned what they didn't like about the Roosevelt era and Warren Courts but easily -- and successfully -- transformed their condemnation into a countervailing positive view that restricts Congress' maneuvering room and eschews recognition of non-enumerated individual rights. It seems we're in a similar place now. When, for instance, we say that we are against current efforts to rewrite Commerce Clause, 14th Amendment and Spending Clause jurisprudence to undermine the constitutional basis for progressive government, aren't we necessarily expressing a positive constitutional vision? And isn't it a vision that can be readily articulated and even media-worthy, despite the media's current fixation on "values" issues like abortion and public square religion?

From the upcoming weekend, a neophyte like me is hoping to take away concrete ideas about a constitutional vision, whether new or revived, that can be easily worked into a much wider, much more public discussion. The opportunity for such a discussion may occur as early as the next Supreme Court vacancy.

-- Seth Rosenthal

Monday, April 04, 2005

Race and the Common Good -- Post by Olati Johnson

1. Several people suggest restoring and promoting a vigorous concept of the common good. Robert Post asks whether progressives should continue to “orient our constitutional politics” around inclusion, or rather whether we should articulate an affirmative vision that, in the tradition of FDR, speaks for the entire public. Several other participants suggest a vision of the common good organized around work: full-time workers should be able to make a living wage, all workers (and not just those entitled to protection under civil rights laws) can be fired only for cause and so on.

I support this framing. I ask also that we articulate a vision of the common good that does not marginalize conceptions of race. Race often operates to undermine notions of collective good. Perceptions (and misperceptions) about the race of beneficiaries has eroded support not just for racial reform, but for progressive social and economic programs (welfare and anti-poverty programs for instance). And at the same time, collective universal programs can serve to perpetuate racial hierarchy. The original Social Security Act, while it benefited many African-Americans, excluded domestic and agricultural workers who were primarily African-Americans. Post-war housing programs such as VA and FHA backed loans helped to create a suburban middle-class, but contributed to racial segregation. A vision of “citizenship” must account for the fact that racial exclusion often takes the form of citizenship harms – including the designing of public policy in ways that exclude or reinforce racial inequality. We need a robust concept of “citizenship” and of the “common good” that ensures that state actions and policies do not exacerbate disparities. This will require creating a new narrative around race -- one that understands the problem of racial subordination as a challenge to our “civil self-understanding” (as Glenn Loury says), our nation’s sense of shared purpose and fate. We also need to deal directly with the problem of racial inequality because, as an empirical matter, race-neutral policies and programs will likely be insufficient in addressing entrenched disparity.

2. Reading the discussions about the progressive vision of the constitution, I realize that I would settle for a constitution that gives Congress broad powers of enforcement. To the judicially-enforced equal protection clause I ask: “what have you done for me lately?” Despite all the legal commentary critiquing constitutional standards, things were not so bad when we had robust statutory responses to this limited standard. It’s the post- Boerne pre-Hibbs Section 5 decisions that seem the serious problem, and, as Pam Karlan has pointed out in her writings, the curtailment of the right to privately enforce civil rights (see, e.g., Sandoval).

3. While this may be somewhat beyond the scope of this conference, I believe that progressives need to be much better at working on the state level. Some postings have discussed the need for a constitutional vision that allows progressive experimentation at the state level. While working at the Senate, I noticed that our state-level networks were often too weak to support innovative and progressive federal-level reforms. Most congressional members need to feel pressure from state-level groups and individuals to support progressive reforms, and members of good will often want to build on innovative state-level efforts. Unfortunately, most of the major non-governmental organizations have very little infrastructure on the state level. The result is that interesting efforts on the state level – for instance sentencing reform efforts fueled by the states’ fiscal crises – are not always harnessed to promote broader national policy changes. We need to think about the federal-state connection differently to bring about progressive reforms.

I look forward to the discussions.

-- Olati Johnson

Sunday, April 03, 2005

Post by Lisa Brown

What values and principles does our Nation stand for? What kind of society do we want for ourselves and our children? Will our Constitution continue to stand as the leading model for its embodiment of a constitutional democracy with a genuine balance of powers and a commitment to liberty, equality, justice and the rule of law? And, as a growing number of constitutional democracies join us in addressing the economic, social and political challenges of this new century, can we revitalize our own centuries-old constitutional traditions by learning from those who are shaping their own, sometimes very new, constitutional orders? The answers to those questions are at the heart of the Constitution in 2020 conference and the larger American Constitution Society project, The Constitution in the 21st Century, of which it is a part.

We live increasingly in a legal landscape imagined largely by conservatives. Conservatives have captured the intellectual initiative in popular and even much elite discourse. Their success in framing and communicating fundamental conservative principles has contributed to real legal and political change over the last two decades. Will we allow narrow and sterile conservative interpretations of our Constitution’s vital principles and protections to reshape our national character and control our daily lives?

Our answer, on this weekend and on every day of the coming years, is a resounding “No.” It is time to reclaim our Constitution. The Constitution in the 21st Century is a multi-year initiative to advance our nation’s commitment to a constitutional democracy that safeguards individual rights and liberties, genuine equality and access to justice. Our task is to do the deep, careful thinking necessary to formulate and advance a progressive constitutional vision that is intellectually sound, practically relevant, and faithful to our constitutional values and heritage. This effort will need to proceed on a number of fronts: we need to develop and disseminate progressive interpretations on a wide range of issues; debunk constitutional rationales that use misleading or disingenuous interpretations to mask conservative policy objectives; and communicate our ideas and values in language that is relevant to people’s daily lives. Our work must be focused on both the short-term and the long-term – using the tools we have today to move forward where we can and visualizing where we want to be in twenty years and how to get there.

This effort has a deeply intellectual component. We must think boldly and creatively, and establish objectives that might seem to many today to be unreachable. And we must think rigorously and debate fully to plan the path to our objectives. Such thinking will require that we understand fully the history that led us to this point and that we have a keen and accurate appreciation of where we are.

While this effort will be an intellectual undertaking, it must always remain focused on the practicalities of life, the issues facing lawyers in the courtroom, parents in the workplace, families at worship, young people seeking education, and unfortunately – but for the foreseeable future, inevitably – soldiers on the battlefield. We must think in concrete terms about issues that will shape the broad nature of our society, our communities and our lives on the most personal level. If we succeed, we will win hearts and minds -- of lawyers, policymakers, judges, and “we the people” -- and thereby reshape the present legal and constitutional order, in some cases restoring what once was, in others achieving that which it long seemed never could be, and as a result making our nation more true to the promise of liberty and justice for all upon which it was founded.

We hope that the Constitution in 2020 conference will be the start of an exciting enterprise that will energize moderates and progressives and reshape the law. Through The Constitution in the 21st Century’s issue groups, conferences, publications, website, clearinghouse of accessible materials and blog, we want to engage each of you in this vital dialogue.

The challenge before us is undoubtedly immense. Yes, part of our challenge is political, in the sense that any important and lasting progressive legal or constitutional advances must ultimately either grow out of or come to be supported by millions of people who will never file a motion, publish an article or perhaps even read a newspaper. But we will win that political battle if we are able to articulate our ideas and values in ways that are grounded in our Constitution and resonate with the public. The challenge is here for each of us --– academics, practitioners, advocates and policymakers --– to take up. If each of us joins the effort, we can and will together reframe the terms of the debate and recapture the initiative in defining our fundamental and guiding values. We cannot be daunted by the difficulties of our task. Too much is at stake: our Constitutional heritage, our Nation’s future and the quality of our lives will depend upon our success. So I hope to work with each of you to revitalize our nation’s commitment to liberty, equality and justice, to an inclusive society with genuine opportunities for all and respect for each other, and to a better future.

-- Lisa Brown

Bringing Work Back Into the Forefront -- Post by Robert W. Gordon

This post builds on previous posts by Willy Forbath and Jennifer Klein. My basic point is to simply to echo and amplify their arguments for restoring work – the rights and dignity of workers; wages, job security, working conditions and employment policies; self-organization and participation in workplace governance, social preconditions such as security and education for expanding access and opportunity to good jobs – to the center of the progressive political agenda and its legal and constitutional strategies.

It’s more than a little weird that work has been so displaced from the central concerns of politics, social policy and legal and constitutional rights and powers that anybody has actually to be making these arguments. Most people spend most of their waking hours at work. Much of their identity, status, and practical options in life is determined by their occupations and pay. Work also spills over into everything else: time at work takes away from and puts pressure on time doing other things, family, friends, play, civic association, political engagement. Security or insecurity at work affects willingness to take entrepreneurial risks or demonstrate civic courage. It even affects health: there is evidence that the strains of hierarchy and insecurity at work drastically shorten life expectancy. Also: for many people, perhaps most, the norms and operational practices of workplaces are a standing contradiction to basic liberal ideals of liberty, equality, human dignity, and the elementary mechanisms for making authority accountable -- democratic governance and the rule of law. Workplace order is usually hierarchical and sometime close to dictatorial, and often relies upon minutely detailed disciplinary codes, pervasive supervision, intrusive surveillance, abusive hectoring, and infantilizing and humiliating rules and commands – e.g. requiring workers to ask permission to go to the bathroom, specifying when they can go, timing their visits, and spying on them – all enforced by the threat of (arbitrary, in an at-will world) firing. What would seem in any other context to be unacceptable affronts to dignity, privacy, and autonomy are justified by unexamined and often implausible claims of efficiency and the thinnest veneer of contract – that workers must be taken to consent to everything they are subjected to so long as they don’t exit, even when exit is fraught with cost and potential ruin.

Given the importance of work, and the anomalous position of workplace order in a liberal polity and society, one would expect issues concerning work to be fairly prominent in political and legal controversy; and for most of our history one would be right. Workers and their rights and interests aren’t just key categories in the socialist tradition; they are so in mainstream American liberal traditions as well. One of the central liberal ideals was some version of “free labor”, which was opposed to feudal serfdom, slavery, peonage, aristocracy, privilege and monopoly. The core free-labor ideal was independence, freedom from domination by powerful others, assumed to be a precondition to both republican or “ancient” liberty to participate on equal terms in democratic governance, and to liberty as self-development and self-realization, liberty to make the most of one’s talents, expand one’s capacities, and express one’s personality.

Some parties thought some very minimal set of conditions would satisfy the ideal: suffrage for free white males, anti-monopoly policies producing mostly competitive markets, legally free exit from employment, opportunities to work one’s way up to self-sufficiency. Others pressed for more expansive conditions: an egalitarian distribution of initial property and skill endowments (e.g. through homesteads, estate taxes breaking up inherited concentrated wealth, universal public education etc.), which would both help to equalize opportunity and give free citizens a base of security and self-sufficiency to resist domination; and organizations of craft workers equipped to bargain on equal terms with factory managers, rights to organize, strike, picket, and boycott. The terms of the debate kept changing with new technologies, economic conditions and forms of work organization: e.g. as the family farm disappeared, social insurance against common hazards of life, workplace, injury, unemployment, disability, inadequate retirement savings, death or injury of a household provider replaced the property in land as the basic form of security endowment. After the Great Depression it was assumed that the governments had some responsibility to alleviate unemployment, at least through counter-cyclical fiscal if not aggressive full-employment-promoting policies; to establish minimum labor standards; and to regulate workplace organization and collective bargaining; though how much responsibility, and how it was to be exercised, was always of course controversial.

These disputes eventually entered, of course, into constitutional argument: was the regulation of slaughterhouses or of professions a denial of basic liberty rights to choose one’s occupation? were the regulation of wages and hours or statutory prohibitions on yellow-dog contracts a denial of employers’ and employees’ liberty of contract? did legislative protection of the right to strike, or legislative restriction on labor injunctions, or the Wagner Acts’s protections for labor organizing and mandates to bargain in good faith, protect workers’ liberties to engage in free bargaining or infringe the employer’s liberty to run his business as he saw fit and non-union workers’ rights to make their own contracts? Were southern planters’ attempts to keep farm labor tied to land through criminalizing contract breaking and crop-lien laws legitimate modes of contract enforcement or instruments of peonage?

I’d be interested in hearing from others why they think, given this very long history in which labor and its rights and interests were so dominant, that work, workers’ rights, unemployment, labor regulation, etc. have mostly disappeared from the top of the liberal-progressive political agenda – with the notable exception of employment discrimination, the post-1970s offshoot of civil rights law. Why, for example, are the only live legal issues and set of actionable claims having to do with bosses’ humiliating treatment of workers limited to sexual harassment? Why are wage stagnation and the erosion of employment-related benefits not burning issues in political campaigns? (I have a list of possible explanatory factors but would like to add to it.) The fading-out of the liberal work-related agenda is especially striking because it is clearly still central to conservative strategies: to undercut what little remains of the Wagner Act’s protections of labor organization; to keep down the minimum wage; to enable employers to reclassify jobs to exempt them from overtime pay; to gut labor protections in trade agreements; to cut back still further on occupational safety-and-health standard-setting and enforcement; to exempt illegal immigrants from basic labor protections; to use layers of subcontractors to escape accountability for foreign labor conditions; to weaken enforcement of antidiscrimination and family-leave laws; to reduce workplace benefits and shift the risks of disability and the burdens of insurance onto workers; to use “tort reform” to shift the burdens of occupational disease and toxic harms, and “tax reform” to shift the burdens of taxation onto wage workers while lobbying against policies to socialize such risks; etc. The aim seems to be to produce a kind of new feudalism, in which an oligarchy of managers, professionals and investors are serviced by a low-wage service class that has to bear all the risks, harms, and insecurities of capitalism; to fragment and privatize the social-insurance system by replacing universal programs with privatized ones financed with tax breaks or stingy, crummy means-tested public systems for everyone who can’t afford them. In this world low wages, insecurity of employment, high unemployment rates, immigrants without regular legal status, and a crummy social safety net are all good and useful because they tame wage demands, suppress worker militancy, and produce a cowering, fearful, servile workforce.

You get the picture, and it’s not a pretty one. The only point I’m pressing for here is to get this cluster of issues back on the liberal agenda. Social insurance in this view is vital to liberty, because it’s the equivalent of old-fashioned property; it’s what enables the worker to speak frankly and as an equal to the abusive boss. Workplace organization is vital to voice and participation in self-rule and the ability to protect against abuse and humiliation at the workplace, as Jennifer Klein says. These issues have had constitutional or quasi-constitutional locations in the past (the “free labor” campaigns against slavery and indentured servitude; the discussions of workplace conditions in the debates over, and later enforcement actions under, the 13th Amendment and peonage statutes; labor’s attempt to give constitutional status to the right to strike; the –futile, as it developed – attempt to take labor out of the definition of “property” protected under the 14th Amendment in the Clayton Act; the attempts to make Wagner Act protections into a super-statutory charter of workplace liberty, etc.). It does not seem so important at the moment to find an exact location in the legal/constitutional universe for rights of workers, rights at work, rights to forms of security that will underwrite liberty and equality at work, the practical means to be free of the domination of family and civic lifeworlds by the pressures and demands of work, etc. an exact location in the legal/constitutional universe as it does to restore them to their proper place in progressives’ central concerns.

The interests of working people ought to be a natural focus for political advocacy and organization, since they include pretty much everyone from the upper middle class on down and transcend the divisions of identity politics. In the last presidential election only John Edwards (ably advised on these themes by our conference colleague and my namesake Robert [M] Gordon) really campaigned around these issues. But they are fundamental – might I say “constitutional” in the sense of basic, structural -- issues of principle: what can liberty and equality rights possibly mean as a practical matter if they must be suspended for most of the day, and undermined by fear of falling into catastrophe if a job is lost?

-- Robert W. Gordon

Friday, April 01, 2005

Post by Martha Minow

Is it just the happenstance of the current political constellation that makes me and some others dubious about turning to the U.S. Constitution and judicial interpretation to revitalize and enlarge social and economic rights, or for an even larger vision of the good life? That may be. The organizers of this conference rightly urge us to take the long view. So I remain open to what others will argue. Still, precisely when invited to think of the Constitution in 2020, I find myself hoping for the divided power that permits pluralist visions -- and more oomph for the preconditions for political engagement -- rather than a wish-list of substantive rights or a portrait of the communal good. I don’t think it is just the political grandstanding over Terri Schiavo’s fate that makes me so cautious about ambitious proposals for new federal constitutional rights, though that’s not a bad touchstone for the worries I have over whose picture of rights are we at risk of entrenching.

Dividing power among the judiciary, Congress, and the executive and its agencies does not only have the virtue of slowing things down – a virtue I value more as I watch what wild-fire in politics looks like. It also better suits and supports our pluralist society, with multiple and rival views of religion, culture, family life, and moral ideas. As some 1 million new immigrants come here each year, our city schools become crossroads for nations; minority status is just around the corner for white Americans; disagreements over how to raise children, how to dress, and who deserves authority can flare up and fragment us. We need to strengthen the public framework for inclusive liberty. But the operative word here is liberty, with sufficient equality to ensure that it is shared.

Meantime, developments in biology, genetics, and medical treatment ensure that the next 15 years will be ones pushing the boundaries of reproduction, life, and death. This seems a time for caution in what we install as constitutional rules about each of these vital matters while permitting individuals and localities to experiment with the new possibilities. No less potentially transformative are the changes in information technology and communication, with potentially seismic disturbances to the prospects for speech, copyright, and other kinds of ownership. Here, too, it seems what we most will need will be room, not new fundamental rights: room for new initiatives to improve access to speech and information, personal and workplace privacy, and forms of sharing that still reward investment. The Congress must have latitude to enact laws that go beyond what the Court has yet announced as fundamental rights in these areas. The Court must not further curb Congress, as it has in City of Boerne v. Flores, Kimel v. Florida Board of Regents, United States v. Morrison and related cases. But this is because the Congress should share with the Court the opportunity to chart protections for equality and liberty, not because the Congress should have the final word on their scope.

Canada’s “notwithstanding clause” jurisprudence has preserved more room for the parliament and the provinces than our Constitution has kept for Congress and the states over tough issues like abortion and language rights – while putting the burden on the political actors to resist judicial articulations of rights. Perhaps there are ways we too could promote more dialogue among the branches and between the federal and state governments about controversial issues while putting the heat on the political actors who want to resist the more vigorous protections of individual liberties.

Similarly, the Congress and the states should be assured latitude to extend public duties (such as the Freedom of Information Act and even due process protections) alongside galloping privatization of governmental functions. Legislative and contractual extensions of public duties would be wiser, though, than constitutional declarations, even were judges inclined to sort out the strange and ragged state action doctrine. Again, it’s too soon and too hard to know what the right lines should be, so room for experimentation should be claimed. Any line between public and private may be incoherent. But 15 years from now the notion of the private will be if anything more vital to personal freedom, critical perspective, and experimentation as we become linked by the Internet (and web-site cookie), GPS, retinal scans, and the next inventions that we do not yet imagine.

My caution about a constitutionalized good life may also come from the sense that on this, the day after Fred Korematsu’s death, the U.S. Constitution looks a bit better than it did when it offered him no protection against the exclusion of all persons of Japanese ancestry from their homes. The state of war is not a blank check for the President when it comes to treatment of citizens, said the Supreme Court in Hamdi v. Rumsfeld in 2004; non-citizens too deserve protections, wrote the court in Rasul. Last week, we learned that the “Founding Fathers’ blueprint for governance of a free people” does not authorize Congress to override the wish of Terri Schiavo as communicated by her husband and adjudicated by state courts. So concluded the fourth federal appellate panel to consider her parents’ request to reinsert her feeding tube. Adults must be able to choose to enter intimate relationships in their homes and their private lives and “still retain their dignity as free persons,” Justice Kennedy wrote in 2003 for four other justices in Lawrence v. Texas.

The Constitution in each instance guided judges to set restraints on what elected and appointed officials, even with good purposes, may do if they jeopardize individual liberty, dignity, and equality. Of course, others emphatically criticize these decisions as 1) intrusive impairments of the executive’s ability to move against terrorism, 2) the spreading culture of death embraced by courts that permit abortion and allow states to experiment with physician-assisted suicide; and 3) the imposition of the homosexual agenda against the views of a majority of Texans. What makes the prevailing views right and legitimate rather than simply the results favored by my team? I tell myself: these results are right because they advance views of liberty, dignity, and equality that expand rather than contract, that reach more rather than fewer people. It may also be that the courts in these cases are not diverging far from engaged political majorities; that the constitutional jeopardy facing the nation is the Supreme Court’s recent tendency to foreclose Congressional efforts to effectuate equality; that the decisions deeply reflect who the judges are and that all could change in the next period of time.

It is hard not to conclude that the crucial work for the next 15 years is straight out political: keep the Senate filibuster to block drastic change in the Supreme Court; take back the White House and the Congress; tap the support for personal liberty and fundamental decency of the American people in order to resist capture by manipulated fears of terrorism or extremist minority views of morality. The Constitution in 2020 will be more likely to reflect whether progressives successfully reform campaign finance, voting practices, and media treatment of politics over the next few years than any list of substantive ideals we produce together. Here it seems we need to work vigorously to link grassroots and national efforts, to mobilize the marketing power of voting machine makers who have devised secure and reliable instruments for other countries, and to look to best practices around the world. I am not sure how much constitutional as opposed to political work this involves, but this part of the agenda – new politics? Democratic politics? – seems crucial.

For the politically unpopular and disenfranchised – including detained immigrants, children, and literally disenfranchised ex-convicts – we do need to ramp up affirmative constitutional aid. Why shouldn’t we make an agenda that includes a federal constitutional right against coercive interrogation, a federal constitutional right to education, and a federal constitutional right to regain the franchise? Here, let’s put opponents on the defensive. We can argue that the legitimacy and effectiveness of the entire constitutional democracy depends upon the possibilities of political engagement. Let’s frame our arguments as the defense of democracy and freedom, because that's what they are.

-- Martha Minow

Saturday, March 26, 2005

Post by Deborah Cantrell

As we gather to discuss visions of a progressive agenda for the Constitution, I wonder whether we should more overtly discuss issues that will arise with implementation. We have had some colloquy about whether it might be best to advocate through the courts, the federal or state legislatures, or in combination, but we have not thought about whether the current structure of the delivery of legal services will affect our ability to advocate. If one looks at the way public interest law is practiced in the United States, most advocates work outside private law firms, at federally-funded legal services programs, at independently-funded impact and policy nonprofits, and at independently-funded community-based organizations. Each of those three settings comes with restrictions and pressures that mold the way strategic agendas are set and the way in which advocacy is practiced. Those structural pressures have the potential for working in opposition to progressive agendas we might craft at our conference in April.

For example, as we all know, advocates at federally-funded legal services programs (LSC programs) are restricted in the kinds of work they may do and the kinds of clients they can represent. LSC programs cannot engage in any redistricting challenges, may not litigate abortion matters, may not bring class actions, nor recover attorneys’ fees, and may not represent prisoners, those evicted from public housing because of drug convictions, nor most non-citizens. LSC programs may not lobby. LSC programs cannot avoid the restrictions by garnering other funding – once a program receives as little as one dollar in federal funding, the federal restrictions apply (although this provision is currently being litigated in New York).

The reason that the above restrictions matter for our own agenda-planning is that LSC programs are still the primary way in which the poor and underserved receive civil legal services in this country. Every state has at least one LSC program, and in many smaller or more rural states, the LSC program may be the only source for most civil legal services. Almost all states now have a “spin off” advocacy organization – generally some subset of attorneys from the state’s LSC program who were severed from that program so that they would be free of the federal restrictions, but many spin-offs are tightly-staffed (one to three attorneys) and miserably funded. Thus, to the extent that our progressive agenda envisions advocacy that would be prohibited by federal restrictions, who will do the work?

Some of the work, of course, will be handled by the national and regional impact and policy nonprofits – the Legal Defense Funds, the National Centers, and the like. But they, too, face challenges. To the extent those programs underwrite their work with attorneys’ fee awards, those awards have been undermined by the Supreme Court’s decision in Buckhannon eliminating the catalyst theory of fee awards (the plaintiff was a “prevailing party” even when the plaintiff’s lawsuit brought about the defendant’s voluntary change in practice). Lower courts have liberally applied Buckhannon. Further, state courts have begun applying Buckhannon to state fee-shifting statutes. Thus, litigation as a means of doing good as well as generating operating income is a sketchier proposition now. The impact nonprofits have felt the resulting pressure on their budgets. To the extent that our progressive agenda will need to be implemented by litigation, the impact nonprofit’s decision to take on the case will have to consider not only the merits of the litigation, but the budget consequences as well.

Impact nonprofits, and every other kind of public interest advocacy program, have also turned to foundations for funding. With some notable exceptions, foundations have not been willing to fund litigation or legislative advocacy. Foundations have preferred to fund targeted projects, often those where several types of public interest groups collaborate. For example, a foundation will fund an LSC program and a community center to create a “know your rights” program for center members regarding Medicaid benefits and coverage. Foundations set their substantive priorities and public interest law programs must pitch projects within those priorities. Thus, foundation funding can sometimes match the priorities that the public interest program has set, but may not. While public interest programs know they shouldn’t “chase the money,” that is hard advice to heed when faced with the possibility of laying off staff. To the extent a nonprofit knows it can get foundation funding and protect its staff, why would it opt to take on part of our unfunded progressive agenda?

Private firms have stepped up to handle and underwrite public interest advocacy and have garnered some high-profile wins. Private firms have the advantage of working free of any restrictions and the possibility of deep pockets if partners are generous. But private firms will never choose, or be able, to handle the bulk of public interest law advocacy. Similarly, law school clinics have admirably soldiered on, even in the face of political criticism and pressure (think of Tulane’s environmental law clinic). But, they too, could never pick up a substantial amount of any large-scale advocacy agenda.

So, at the end, we must acknowledge that our progressive agenda for the Constitution in 2020 will be implemented by LSC and non-LSC programs, impact nonprofits, and community-based organizations. When we think about general framing concepts or tropes for our agenda, we should be mindful of restrictions and the like. For example, if we think about “citizenship” as a framing concept, what does that mean for LSC programs who cannot work with most non-citizens. The same when we think about strategies for redistricting or work that involves prisoners. Or, when we push for a particular interpretation of the Constitution that will have to be created through litigation, what does that mean for a tightly-funded impact nonprofit that might already be carrying a litigation docket that will not bear much in attorneys’ fees. We certainly will not be able to resolve all the tensions I have noted, but at least we should require ourselves to consider these structural barriers.

-- Deborah Cantrell

Friday, March 25, 2005

Society Must Be Defended*: Mass Incarceration, Race, and Democracy -- post by Jonathan Simon

* See Foucault, Society Must Be Defended (New York: New Press). Foucault sees the politics of the nation state from the very start as a barely contained race war between dominant communities and their (racial, religious, linguistic, class) others. The war on crime is one variant of this race war.

There is a growing progressive consensus that the effects of mass incarceration now endanger democracy in America, especially (but not exclusively) in the way they transform the social significance of race in America. This consensus is supported by a steadily accumulating body of empirical research that shows the depth and the perverseness of these effects that channel billions in tax dollars into the forced internal migration of larger numbers of young Black and Hispanic men (and now women too) while distributing economic and political gains to ex-urban and rural counties. With a third of all Black men bound for prison at some time in their life, current policies have made incarceration and the panoply of institutions through which people are moved into and out of prison a primary source of socialization and role formation for whole communities. Arrest and incarceration rates for Black women have grown even more rapidly in recent years.

Even some progressives who supported the war on crime as a legitimate response to the apparent social disintegration of the 1960s through the 1980s now concede that at least some of the consequences of incarceration like the effects of voter disenfranchisement and economic exclusion must be addressed (e.g. Senator Clinton’s support for a voting rights statute that would bar permanent felon exclusion in federal elections). Voting is only the most palpable way in which this works a loss for democracy. The growing gap in family wealth (as opposed to income) between White and African American families reflects in part the consequences of criminalizing the social crisis of inner city America from the late 1960s on as it plays out on access to education, property values, structural mismatch in access to better paying jobs, loss of eligible marital partners, etc.

Unfortunately the constitution as it has been read by courts does little directly to disable mass incarceration. The 13th Amendment itself gives us the explicit assurance that slavery can be reborn so long as it is practiced solely on felons (something the South did almost immediately with the Convict Lease system). The 8th Amendment offers little solace either. As long as capital punishment remains constitutional (more on this strand in April), long prison sentences for crimes like being a former felon in possession of a firearm are not going to be perceived as “cruel” and they are hardly “unusual.”

The most racially explicit forms of penal power, like California’s remarkable racial classification for incoming inmates, can and should be challenged on equal protection grounds. Thanks to Johnson v. California, we in California may actually have a public discussion of whether it’s a good idea for the state to help reproduce a system of racialized gang violence as a way of governing prisons. But the Court is unlikely to go very far in challenging the power of state legislatures to determine the purpose and scale of punishment (at least punishment by imprisonment).

Disturbing is the fact that American political culture has long embraced harsh punishment of threatening criminals as a function of democratic governments seeking to protect the common good rather than sinister gesture of monarchical excess. The illustration below of America’s only legal mass execution is a chilling example. The simultaneous hanging of 38 Santee “Sioux” Indian men by federal troops in front of a crowd of white settlers took place in 1862 in Minnesota. The no doubt stylized representation drawn by the 19th century commercial illustrator is in no way subtle about the political significance of the act. The western town rising behind the scaffold, the covered wagons gathered at the side, and the ranks of federal troops lined around the scaffold remind us that this is no spectacle of monarchy, but a disciplined act of social defense carried out against a racialized other defined in no small part by the perceived threat of violent resistance to the white settler race.

The Reconstruction Amendments offered little direct remedy against harsh use of imprisonment or even the death penalty consistent with social defense. Great violence directed at vulnerable minorities, both state violence and the state tolerance of private violence, existed unimpeded for the first half century after the adoption of the Amendments. The Supreme Court did eventually respond to the specter of lynch like conditions in the capital rape convictions of the so called “Scottsboro boys” in Powell v. Alabama 287 US 45 (1932). Anchored in the 14th Amendment’s due process clause, Powell and its progeny opened up federal courts as tools of reforming state and local criminal justice agencies. But as valuable as these rights have been it is not clear whether they offer an effective remedy against mass incarceration. Indeed we might wonder whether the provision of more humane conditions under the 8th and 14th Amendments has not made tolerable a policy of population transfer into a carceral dimension.

If there is a constitutional angle to the fight against mass incarceration it may lie in the survival of key elements of New Deal governmentality now being contested and often in constitutional terms. There is irony aplenty here. New Deal precedents on federal power to regulate social conditions under the commerce power have been relied on to support tough anti-crime measures aimed at addressing populist concerns while recent efforts to attack some of the substantive criminal laws that sustain mass incarceration have raised the banner of limited federal power. Moreover, President Roosevelt and Attorney General Homer Cummings flirted with a war on crime as a hedge against the failure of economic reform that would allow the administration to be vigorously addressing the sense of social collapse during the early stomach dropping years of the Depression. In its effort to produce compliance with its many regulatory initiatives, the New Deal pushed the use of strict liability criminal prosecutions to hold executives accountable for faulty consumer products regardless of whether the defendant had any actual knowledge of the particular circumstances.

But the forms of governance that actually emerged from the New Deal, social insurance, organized labor, regulatory agencies, provided ways of addressing alarming social problems that did not operate primarily on coercive tactics aimed at criminal behavior. Indeed, in some cases, like that of organized labor, the New Deal framework took conflicts that had been channeled into crime and criminal justice (unions were sometimes considered criminal conspiracies, gangs were employed to attack unions and later to protect them) and moved them into a realm of civil law and justice.

Whether or not the social effect of weakening of the risk spreading functions of New Deal governance produces more crime (a difficult question to answer) it seems to have encouraged government itself to view more risks as crime like and amenable to criminal solutions. In a vicious cycle, the politics of crime de-legitimizes remaining systems of socializing risk. The “Leave no Child Behind” law and the new consumer bankruptcy law are only the most recent moves toward dismantling systems of social risk spreading in the name of isolating and controlling “abusers.”

In short, the best way to stop and reverse the destructive effects on democracy of our four decade long war on crime is to shore up and reinvigorate the constitutional framework of New Deal governance. Creating effective forms of governance that address important sectors of risk in people’s lives can compete with the attractions of mass incarceration. Society must be defended, but how?

-- Jonathan Simon

Money and American Democracy -- by Burt Neuborne

I am enclosing a draft chapter on the relationship between wealth and American democracy. I plan to discuss many of the issues raised in the chapter at the upcoming conference.

[Click here to read the chapter.]

Tuesday, March 15, 2005

Post by Cass Sunstein

In my dialogue with Bruce Ackerman, I will be arguing for the importance of focussing quite narrowly on the Constitution in 2020 -- the founding document as it is interpreted in courts. I will be urging that it is important to resist, on democratic grounds, the idea that the document should be interpreted to reflect the view of the extreme right-wing of the Republican Party. This idea, sometimes masquerading under the name of originalism or strict construction, represents a form of judicial hubris; it is bad history and bad law. It should be exposed and rejected as such.

For 2020, what should be asserted instead is a form of judicial minimalism, one that also gives the democratic process wide room to maneuver. The appropriate path is not charted by Roe v. Wade; it is charted instead by West Coast Hotel, upholding minimum wage legislation, and Katzenbach v. Morgan, allowing Congress to ban literacy tests. Moderates and liberals should not want the Supreme Court to march on the road marked out by the Warren Court. They should celebrate instead rulings that defer to Congress and that invalidate legislation rarely and only through narrow, unambitious rulings, akin to the Court's recent decision in the Hamdi case.

Minimalists insist on a democratic conception of the free speech principle and also on procedural safeguards for those deprived of their liberty. But they reject any Citizen's Agenda if it is understood as part of constitutional law proper.

In other words, it is exceedingly important to distinguish between the Constitution in 2020 and what would be good in 2020. UnlIke Ackerman, I do not favor "a political coalition that will ultimately be in a position to name Supreme Court justices who will repudiate The Slaughterhouse Cases, and give constitutional meaning to the 'privileges' and 'immunities' of citizenship that make sense in the twenty-first century."

One qualification is that the United States does not only have a Constitution; it also has a set of constitutive commitments, beyond mere policies but without a formal constitutional status. Franklin Delano Roosevelt's Second Bill of Rights was an effort to establish several such commitments, including, above all, decent opportunity and minimal security. I will briefly discuss the value of seeing the Second Bill of Rights as part of the nation's self-definition in 2020 -- though not of seeing it as part of our formal constitution. The insistence on the Second Bill of Rights is best regarded as part of democratic deliberation, not as part of constitutional law.

-- Cass Sunstein

Friday, March 11, 2005

Post by Bruce Ackerman

In my dialogue with Cass Sunstein at the Conference, I will be urging a "Citizen's Agenda" as a centerpiece of progressive constitutionalism for the next generation. My aim is to redeem the lost promise of the Fourteenth Amendment's vision of national citizenship through the enactment of framework statutes and the judicial development of the meaning of "privileges" and "immunities" of American citizenship. The creation of a legislative "Citizenship Agenda" has been at the center of my recent books with Ian Ayres (Voting with Dollars), Jim Fishkin (Deliberation Day) and Anne Alstott (The Stakeholder Society).

These books have two basic aims. The first is to give ordinary Americans realistic tools for participating in political life by providing each citizen (1) with 50 "Patriot dollars" which he can give to any party, candidate or interest group of his choice during the course of a presidential election (V with D); and (2) an opportunity to discuss the issues with his neighbors at a new public holiday held two weeks before each national election. (DDay)

The second aim is to create a new institution of civic inheritance to complement the existing institution of family inheritance. Each American citizen should receive a substantial stake (Alstott and I argue for $80,000) when starting out in life as a young adult. Each citizen should be free to use his stake for any project he thinks best. Stakeholding will give renewed meaning to the Declaration's promise of "life, liberty, and the pursuit of happiness" by giving young adults the wherewithall to shape their lives at a moment when most of them are living from paycheck to paycheck.

I think this is a winning platform politically. By reorganizing progressive politics around the ideas of common citizenship -- both political and economic -- it will lay the foundation for a political coalition that will ultimately be in a position to name Supreme Court justices who will repudiate The Slaughterhouse Cases, and give constitutional meaning to the "privileges" and "immunities" of citizenship that make sense in the twenty-first century.

-- Bruce Ackerman

Saturday, February 12, 2005

"The Art of Stealth" -- Bruce Ackerman

I've just published an essay in the London Review of Books on the coming struggle over Supreme Court nominations, which contains a rather grim view of the possible Constitution in 2020. You might want to take a glance. The essay is called "The Art of Stealth" iand may be found at:

-- Bruce Ackerman

Wednesday, January 26, 2005

On Focusing and Entrenchment -- Post by Cass Sunstein

After some helpful talks with interested others, here are a few thoughts on the Constitution in 2020. First: It is important to be clear on what is meant by "the Constitution." That idea could of course be limited to what is technically part of constitutional law as the Supreme Court understands it. Much more ambitiously, It could include anything deemed "constitutive" of national commitments and principles. Somewhat less ambitiously, it could include any proposal for what might be taken to be part of constitutional understandings -- as in, for example, some claims about the need for social and economic rights, and some claims about the real meaning of citizenship.

Tentatively, I think that there might be real advantages in focussing primary attention on the first and narrowest alternative -- the likely content and transformation of constitutional law as it develops from the Supreme Court. There's a lot more to do, of course, but a risk with the second and third alternatives is that they lose our focus, and turn into a more general inquiry into what liberals, the left, or the non-right should like or should be -- which isn't our comparative advantage, at least not for most of us.

Second: For the Supreme Court in 2020, a plausible goal, it seems to me, is to move in the general direction set by James Bradley Thayer -- to fend off efforts to entrench certain views associated with the extreme wing of the Republican Party. Jack Balkin's post on the future of the free speech principle seems to me to set exactly the right tone for us. If Congress wants to loosen restrictions on commercial advertising, fine; but the Supreme Court shouldn't constitutionalize this. More generally: There is a looming approach, which we might call Fundamentalist and which is captured in the idea of the Constitution in Exile, that would strike down affirmative action programs and campaign finance laws, reinvigorate the takings clause and the nondelegation doctrine, and endanger civil rights statutes on federalism grounds. These initiatives should be resisted as an effort to constitutionalize a contentious political program.

At the same time, it should be agreed that Roe v. Wade, and even Brown, are not the best models for future constitutional development -- Roe because reasonable people oppose it, Brown because that kind of aggressive judicial behavior is, and should be, rare. The best constitutional models, on this view, are West Coast Hotel, NLRB v. Jones & Laughlin Steel, and (maybe above all) Katzenbach v. Morgan, rather than Roe and Lawrence. The worst constitutional models, on this view, are Dred Scott and Boerne and Morrison, not Hardwick and Plessy. An anti-entrenchment principle, writ large, might help to orient the resulting constitutional understanding.

Here's another way to get at this. In the last decades a major fight, within the Court, has been between the Fundamentalists and the Minimalists (who have no broad agenda and who want to take small steps, not unified by any big agenda). In academic circles, these two camps are often challenged by a third group -- the Perfectionists, who want to make the Constitution the best it can be. Inspired by the Warren Court, many liberal academics have endorsed Perfectionism. Increasingly, though, many other people have become interested in a fourth approach -- Nonpartisan Restraint, as favored by Thayer and more recently by Adrian Vermeule, Jeremy Waldron, and Mark Tushnet. I am suggesting a negative program: A rejection of Perfectionism and Fundamentalism. I am also suggesting a positive program: An interest in a kind of Minimalism that leans toward Nonpartisan Restraint. (Of course we are speaking here of tendencies rather than simple, discrete categories.)

Is there any room for judicial invalidations, under this approach? The answer is: A limited one. First: Clear statement principles, requiring clear congressional authorization for intrusions on constitutionally protected interests. (Kent v. Dulles is a good model here.) Second: As Ely and others have elaborated, the anti-entrenchment principle itself has a positive, anti-Thayer side, especially in the domain of political speech and the franchise. Self-government comes with its own internal morality. (In addition, unjustified imprisonment is a prime concern for minimalists.) But because of the risk of judicial error, the Constitution in 2020 should be expected to be extremely cautious about interposing these ideas (as some of Ely's followers would like) as a kind of liberal analogue to the Constitution in Exile. That liberal analogue is a political program, not a constitutional one in the sense in which I am using it here.

The major goal of these general thoughts is to suggest the value of opening up a wide range of issues for political determination, free of judges, subject only to a "core" of judicially-enforced safeguards. Of course we can disagree about what that core might contain.

-- Cass Sunstein

Monday, December 27, 2004

Post by John Podesta

I’d like to express my appreciation to the organizers—both the faculty and the students—who got this important project off to such a fine start with the gathering in New Haven earlier this month. I look forward to continuing the dialogue as we seek to lay the foundations for a better nation and a Constitution that reflects progressive values.

Open government is essential to democracy.  The current administration’s penchant for secrecy, illustrated perhaps most famously by Vice President Cheney’s refusal to disclose the most basic information about whom he consulted with in developing the nation’s energy policies, has brought renewed vigor to progressives’ fundamental commitment to transparency and accountability in government.

But in what is that impulse grounded? The Constitution does not explicitly speak of a “right to information” or “open government.” The legal authority we have to demand information from government is rooted in statute (e.g., FOIA, FACA). While these laws play a valuable role in peeling back the curtain on government secrecy, the public’s right to know would be considerably strengthened if such a right could be constitutionalized.

One place to look for support of such an argument is Article I, Section 1, which grants to Congress “[a]ll legislative [p]owers” enumerated in Article I. Underlying that statement, and indeed all of Article I, is an assumption that Congress is in a position to exercise its legislative mandate. Few people may realize how that very assumption may be faulty.  Congress has, arguably, never been less functional and less able to legislate. And an important element of this institutional paralysis comes from the lack of basic information that is shared by the executive branch and between the majority and minority parties, casting doubt on the ability of Congress to address matters of public policy, and perhaps more importantly, represent the public it purportedly serves.

The minority party in Congress often does not even see the text of major bills until a few hours before voting on them—leaving no time for them to be understood, much less read. The appropriations process in particular has become so disfigured that bipartisan outcry is growing. Congress now routinely fails to pass the bills, required by the Constitution, to fund the government, instead waiting until, almost literally, the last minute to issue an enormous omnibus bill that few members—and certainly no members of the minority—have time to digest. Hearings are scheduled on short notice in order to deprive minority members of the time necessary to prepare and gather witnesses. Critical reports, memoranda, and testimony are not shared. A Democratic leadership aide said last year, "From their perspective, they don't need to tell us anything. We're fundamentally not part of the process."

This might be acceptable in some parliamentary systems. But in our system, particularly with such a closely divided Congress, the withholding of information compromises the ability of the institution to do its job.  Moreover, it deprives nearly half the people of the informed representation to which they are entitled.

The Supreme Court has recognized that Congress has the right to obtain information from the executive branch—a responsibility that is normally exercised by the majority party. But in a situation like the one we have today, where the majority has abandoned much of its oversight role, the question is: can a constitutional argument be framed that the minority party has a right to information in order to fulfill Congress’ obligation to oversee the executive branch?

-- John Podesta

Thursday, December 23, 2004

The past is not prologue, but we need more history any way -- post by Jonathan Simon

First, I want to express my gratitude to the American Constitution Society, Yale Law School, and all those who participated in the recent New Haven discussions. You lifted my spirits and my vision from the low horizon they have been fixed on since Red Tuesday. What follows are a few lines of thought coming out of my notes from December and looking toward April.

The Need for Constitutional Discourse

I came into New Haven a skeptic to this degree. From my peculiar obsessions, crime, punishment, security, insurance and risk management, constitutional law has been a fairly marginal shaper of astounding developments over the last quarter century (and a similar case could be made I suspect for labor/employment, welfare, corporate governance, family, immigration, urban development). My own strong interest in constitutional law during my student and early teaching days during the 1980s has in fact waned (beyond criminal procedure, the autonomy of which I'd be happy to defend on some other occasion, but even its effects are marginal in my view). I've even had heretical thoughts (at least they would be in New Haven) as to whether we can afford to have so many of our best and brightest students drawn to constitutional subjects.

But what if in fact much of this apparent irrelevance of constitutional law and discourse is an artifact of living in a legal culture still largely shaped by the New Deal, both in constitutional terms directly (as Bruce, Willy, and many others present have shown) and in the broader terrain of policy framework and institution setting legislation (whether one wants to call that constitutional or not). The anchors of that New Deal legal culture, are now facing for the first time in more than half a century, a set of ideologically determined and unified opponents who happen to control the White House, Congress, and with a few key appointments over the next few years, the Supreme Court. Social security, modern eminent domain, unions, environmental protection, are only a few of the things that could move from the category of the waning to that of the extinct in a few short years ahead. Moreover these opponents see their objectives in terms of constitutional fidelity.

The international framework of security and human rights is also a New Deal legacy in important respects. No one needs reminding this December that the same opponents are even more aggressively attacking the legal and institutional foundations of American participation in that.

The Constitution and New Deal Governance

The fate of the constitutional underpinnings of New Deal governance ran through many of the strands of the discussions I heard in December, but I would be really interested in hearing an even more explicit discussion in April of what this New Deal edifice means to us now. As much as we might want to view ourselves as the opposition, the New Deal legal culture remains very much alive and remarkably significant to the lives of lawyers and everyone else. No doubt reflection on this will bring us to some deep disagreements within our ranks. Should progressive constitutional discourse defend the mid-20th century governmental rationalities at work in the New Deal, or seek to recast them through more neo liberal approaches?

I think we would benefit from letting that argument happen even more explicitly. In any event we have little choice as to whether to take a stand on this. Our opponents are getting ready to put before Americans a case for radically changing all or much of this. Moreover, they are going to do so in explicitly constitutional terms. Against an empirical reality that is far from conforming to most of their suppositions, conservatives are likely to rely heavily on a sense of constitutional necessity to convince Americans of the need for doctrinal change at any cost to their personal security. I wouldn't assume that Americans will just reject such an idealistic call. In any event the chances of conservative constitutionalism prevailing on these fronts is much stronger if there is no strong narrative on the other side expressing why constitutional fidelity in no way requires the abandonment of the New Deal; one which calls on the current generation of Americans to reimagine how to act politically and collectively to enhance their freedom and security in the 21st century.

So maybe we do need the best and the brightest working on this (otherwise you might be reading more screeds like this).

The past is not prologue, but we need more history any way

It is not our 1964 or 1980, but the discussion that was Lawrence Lessig began by throwing those numbers out was very interesting. Looking seriously at those years as well as 1936, 1867, 1919, 1945, 1964, 1984, 1994, and many more is crucial. I would love to see even more historians to the April conference and hear more from the ones that were there in December. The New Deal is again particularly important. The coming struggle is not about the Reconstruction Amendments, although a renewed understanding of the New Deal might make possible an enriched legacy for those amendments. The purpose of having more history would be to place the debate about New Deal governmental rationalities into an expanded historical understanding of the intellectual and political resources of the New Deal constitutional moment and its present legacies. We know the war for defining constitutional fidelity will be in large parts a historical one but if we are going to win it, that history cannot be solely one of constitutional framers (even New Deal ones). Indeed, it needs to go well beyond doctrine
and include a rich discussion of New Deal legal culture and the institutions, practices and lifestyles it has brought into being, including administrative agencies, unions, the sexual revolution, international legal entities, suburbs, public schools, race, prisons, etc.

Resistance, practices, and institutions

What do Americans (say for now that means residents of the US), especially those constituencies that we can already count in the progressive camp, want, and what are they willing to fight for? Conservatives prevailed in the 1980s and 1990s by defining themselves as interested in fighting for what they claimed mattered to people, their homes, neighborhoods, personal wealth. I've been asking myself the question I heard Judith Resnik asking a number of people at the December discussion, something like "what goods and services can progressive constitutionalism deliver to people in the way the New Deal did?" We need this knowledge not just because constitutional analysis is always outcome driven, but to even know what questions to be asking the text. Here is my wishlist.

  • Equal dignity for minorities : Bush had to go on TV to signal he was comfortable with gay civil unions for a reason.

  • Higher education and the economic opportunity that comes with it:Americans pay an enormous price (in money and anxiety) to put their kids through colleges and graduate programs. At the same time every college town in the country is virtually a guaranteed blue spot on the electoral maps (even in the deep South).

  • Personal sexual freedom:Kinsey was right that an enormous gap exists between what Americans claim to believe about sexual virtue and what they practice. Being on the side of sexual freedom for all and access to the institutions necessary to provide it in safe, equal, and intelligent ways, e.g., sex education, contraception, abortion, is ultimately a majority position in America. This is what the right to privacy meant before the response to Roe v. Wade shifted it from liberty to equality.

  • A secure retirement: A return of primary responsibility to provide income and succor for the elderly to the tender mercies and over-stretched wallets and lives of their adult children and community charities is something that most Americans would truly dread (at least in part because of its impact on the previous two). The decline of employer based pensions (a part of the private law side of the New Deal) and the attack on social security raise life style questions that conservatives cannot afford to try and answer.

  • Diverse cities and cosmopolitan suburbs: For a variety of reasons (the valorization of homeownership and fear of crime high among them) many Americans feel they must live in exurbia but they know it's a bad deal. I've never seen people spend their vacations visiting gated suburbs. New Orleans, San Francisco, New York, and Miami tug on people's hearts (even in the Red states) for a reason. Minorities of all sorts help produce the urban public goods that draw people to the most successful cities. New Deal governance, at least post-World War II, did a pretty bad job renewing and reinvesting in cities. Federal urban renewal and development projects, plus the massively harmful war on drugs largely waged in the cities, generally have a well earned reputation for being both corrupt and dysfunctional. Kelo v. City of New London, will place the future of condemnation for large scale urban renewal projects involving private developers. Do progressives need to defend the ability of urban renewal agencies to condemn private property so that big box stores and big box plants can be lured to urban areas, or is it better to fight off the retailing methods of the exurbs with living wage laws (while leaving it to the market to make big box stores too expensive)? Is this an area for possible synergy with conservative ideals like federalism and property rights? The main problem with federalism from the perspective of America's blue cities and suburbs is that state government has often been even more hostile to our interests then the federal government is currently.

    Wishing you a Blues Christmas, Hannukah, Kwanza, and a New Year of Peace (somehow)!

    -- Jonathan Simon
  • |

    Sunday, December 19, 2004

    Post by Richard Thompson Ford

    One meta-question hangs over my thoughts about the Constitution in 2020. To what extent must our deliberations consider popular reception as well as the potential for success in the courts and principled legal correctness? While we should not turn to brazen pandering or empty salesmanship, principled positions that few courts will accept and even judicial victories that do not eventually garner significant popular support are not durable successes. And we should worry about unpopular judicial victories as a matter of principle as well as for practical reasons. This isn’t to say that we should give up on the courts, but it is to say that we shouldn’t give up on the people either.

    So I take it as given that our constitutional program requires a popular story that gives it meaning and legitimacy. My very strong belief is that such a popular narrative must unify the political community (thus could be a locality or state as well as the nation, depending on the scope of the legal intervention); it must describe whatever legal intervention we wish to advance as something that enriches us as whole. Of course this doesn’t mean that it must directly benefit everyone.

    But it does mean that whenever possible our legal interventions should not be premised on strong presumptions of group difference and should not seek special privileges for some groups that others would not enjoy. Some of this is a question of framing. A characteristic of the “new left” has been a romance with identity politics. This romance has matured into an obsessive and dysfunctional relationship, such that today it often seems that progressives deliberately frame political questions in terms of identity politics, even when substantially similar ends could be achieved by framing the question in more universal terms. I suspect that only some of the inputs for such framing is tactical—much I suspect is an inadequately theorized commitment to a “politics of recognition.”

    An obvious example involves anti sodomy laws. For years the debate was framed in terms of “gay rights.” Now, post Lawrence it seems that a more universalistic framing was the better approach.

    An obvious counter example is affirmative action. But even here, where group based framing seems unavoidable, we can seek to down play presumptions of intrinsic group difference and emphasize the universal aspects of the intervention. Affirmative action, it seems to me, is one of many reasonable policies designed to address the unique social inequities produced by historically institutionalized practices of formal discrimination. We can easily frame the policy outcome as one that serves the national interest by helping to wipe clean the moral stain of formal discrimination and to allow institutions to correct for systematic bias that resulting from the legacy such discrimination. This rationale (admittedly the “societal discrimination” rationale rejected by Justice Powell in Bakke) is a useful supplement to “diversity” O’Connor’s opinion in Grutter is a nice example: in the course of an opinion advancing the diversity rationale, she manages to (needs to?) smuggle in the societal discrimination rationale as well: the Grutter opinion notes in passing that “By virtue of our Nation’s Struggle with racial inequality, [minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.” There’s something telling O’Connor’s emphasis on “our nation’s struggle” with racial discrimination. We’re in the struggle together—its not the struggle of racial minorities or of public universities—its our nation’s struggle. I think we could take something useful away from that inclusive framing.

    I take seriously Chuck Sabel’s point that we should look carefully at successes under state constitutions which proceed from “local” cases to require concrete egalitarian redistributions in specific institutional contexts in areas such as school finance reform. We should look to ways to popularize this dynamic so to speak—to see whether it can travel from the judicial to the popular arena and think more about the types of socio-political commitments it might produce. We’d be fools not to take these examples seriously, but I’m not convinced that such examples can substitute for ideological or narrative resources that promote a since of political solidarity.

    One thing Sabel’s examples suggest is that it’s possible that we should begin looking for political community at the local or state level and work out, rather than begin at the national level. If so, we may need to reconsider the conventional left-liberal aversion to decentralization of power (I take this to be part of David Barron’s point in the Liberties and Communities session). But that’s for another blog.

    There’s the wind up: here’s the pitch. I suspect that the best—perhaps the only—way to frame a broad constitutional vision that will both appeal to a majority of Americans and satisfy traditional left-liberal objectives (egalitarian redistribution of wealth—either in kind or through socially progressive legislation and policy, more humane workplace relationships…) will be to tell a story that emphasizes what joins us as political community, a narrative of the polis as an imagined community. It’s a truism, but not less true for it, that nations with strong social safety nets (the caricature of European social democracy) tend to have a strong sense of social commonality. This doesn’t mean, as is often suggested, that ethnic or cultural homogeneity is a prerequisite for social cross subsidization; it’s another caricature that European nations are ethnically and cultural homogenous—a glance at the history of almost every European nation reveals a host of distinct regions, principalities and ethnicities, joined as a single nation relatively recently and not without much political effort. Nor does it necessarily involve brutal suppression of difference: even the modern stereotype of an ambitious and aggressive example of national centralization—Republican France—was successful not as much because of the violent suppression of ethnic difference (not that this didn’t occur!) as because of the creation—coincidental and deliberate—of economic incentives to assimilation and the creation of a robust narrative of republican citizenship (here I think of the account of French nationalism offered in Eugen Weber’s “Peasants Into Frenchmen”).

    Perhaps the central point is this: in a world that is increasingly interconnected we, more than ever, need a good rationale for an ethic of political sharing that can underwrite a welfare state or social safety net. Liberal humanism isn’t sufficient because it doesn’t explain why we owe a greater to duty to people in the nation than to those, equally in need, outside its borders. For instance, given the ease of trade in agricultural products across national borders and the multinational interests of many nominally “American” corporations, why do we owe a free public education and minimum social services to non citizens who do seasonal agricultural labor in the United States but not to non citizens who do similar work in other countries whose main export market is the United States (we benefit from the labor of migrant farmworkers every time we buy produce from the Central Valley of California, but we also benefit from the labor of foreign farmworkers whenever we buy imported produce. American-owned agribusiness benefits from migrant labor but increasingly it also benefits from labor that occurs entirely offshore.) I suspect (and share) a strong, inchoate sense that migrant laborers, even those who send much of their earnings to foreign countries and reside in the United States only seasonally are still “us” whereas people residing and working exclusively in a foreign country are not But without a reasonably coherent and convincing account of who “we” are, I think defending this inchoate sense to a skeptic will be very rough going.

    In the blogs and in our December session we touched on this theme several times: Willie Forbath’s idea of social citizenship, Robert Post’s suggestion that we avoid particularizing constitutional frameworks (group rights on the equal protection model) in favor of norms of universal applicability (fundamental rights) and Bruce Ackerman’s (rightly controversial) suggestion to center a new constitutional program on a revitalization of the citizenship clauses. All of these ideas are and should be controversial. But that’s precisely what makes them worth considering. Let’s face it: we’re on the run. We need ideas that shake up comfortable left-liberal pieties and move us in new directions.

    I’m not convinced that either “work” or “citizenship” is the right organizing rubric. But I don’t think the fact that they will exclude some people is necessarily a reason to reject them. If we can provide everyone with the opportunity, given sufficient effort and commitment, to become a citizen (we’d need to revisit naturalization laws) or do meaningful work (we’d need something like William Julius Wilson’s idea of a WPA project for urban areas), its not clear to me that we owe something more to people who choose not to avail themselves of the opportunity. It’s an inevitable consequence of any conception of community that some people aren’t members. It seems to me that a liberal community could be sufficiently porus as to allow ready entry (and exit) on the basis of effort and demonstrated commitment. But its strikes me as quixotic to imagine one could drum up meaningful political support for sharing and cross subsidization in a community that required no significant effort or contribution and entailed no meaningful allegiances.

    In this respect, it seems to me enough that we offer everyone humane choices, even if they are not always choices from which they are happy to select. So I believe that if we were to emphasize an ethic of work, we must do much more to make workplaces dignified, humane and non discriminatory, but we needn’t abandon the idea because some able bodied people refuse work on any terms. If we are to emphasize citizenship we must make it available on dignified and humane terms to every responsible and contributing member of the society (I leave aside tricky questions of what counts as the society and why physical presence in the territory should have any weight at all, much less as much as it does) but we needn’t abandon citizenship because some potential members of the political community prefer other national allegiances.

    -- Richard Thompson Ford

    Tuesday, December 14, 2004

    Issues and Strategies for Election Law Reform -- post by Nate Persily

    In response to Reva's urging, I have attached a summary of what I see as the election law issues relevant to the first part of the New Politics session -- that is, not the IP/Media Concentration topic. I have organized them according to strategies for judicial interpretation and statutory innovation. I have included other topics that I think are usually "on the table" even if we did not have a chance to cover them. I have also included (mostly in italics) ideas/reforms with which I specifically disagree but which are usually part of these debates.

    There is a trees rather than forest approach to this matrix, but perhaps that is because in this field I suspect that the underlying values are not as disputed as in others (except when political self-interest gets in the way). Here are a few words at the opposite end of the abstraction spectrum:

    The electoral system should be arranged in a way that promotes values of representation, participation, and competition in the service of a particular vision of governance. The chief danger to these agreed upon
    values comes from incumbents' manipulation of the rules of the electoral game to insulate themselves from effective competition and one faction's (whether a majority or a minority) systematic attempt to deprive its opponents of their rightful share of representation and political power. The underlying values -- such as representation and competition --
    are often in tension with one another (as in the case of incumbent protecting gerrymanders); however, most of the "problems" in this area come from three heretofore intractable features of the American system:

    (1) Our reliance on partisan officials for most aspects of election
    administration and redistricting.

    (2) The incompetence of officials on the ground (due in large part to resource constraints) with respect to the actual mechanics of voting.

    (3) The decentralization of most election administration, which causes dramatic disparities within and among states.

    Frankly, if you can solve those three problems, many of the others that have preoccupied reformers in the past four years will fall by the wayside or greatly diminish in importance.

    issuejudicial actionstatutory innovation
    election administration

    1. challenges to biased administration based on 1st and 14th amendments.

    2. use of epc to minimize disparities between regions, localities, counties and precincts.

    1. creation of offices/commissions for non-partisan election administration.

    2. move toward statewide and national rules/uniformity/administration as to ballot design, technology, registration requirements, etc.

    3. professionalize precinct administration, develop graduate programs for election administration.


    1. challenge to partisan (or bipartisan/incumbent protecting) gerrymanders under 1st and 14th amendments.

    2. development of rules/districting principles for court drawn plans

    3. what to do with shaw v. reno?

    1. establishment of nonpartisan commissions.

    2. repeal of statutes mandating single member districts for congress (or state legislature)

    3. move to alternative voting systems.

    4. reauthorize/change section 5 (and section 2) of the vra

    campaign finance

    1. should buckley be overturned?

    2. should unions be treated differently than corporations?

    1. public funding/ ackerman-ayres.

    2. change the bcra?

    3. deal with 527s?

    4. abolish/reform the fec.


    1. eliminate felon disfranchisement (overturn Ramirez)

    2. challenge onerous burdens to registration and voting (including shortages of machines and long lines to vote).

    1. overturn statutes that disfranchise ex-offenders (change the way the census counts prisoners).

    2. same day registration, automatic registration through change of address form.

    3. internet voting, early voting, voting holiday.

    4. revisit the help america vote act/ provisional ballots.

    5. measures to eliminate fraud (particularly with respect to absentee ballots).

    6. compulsory voting.

    7. deliberation day.

    party reform

    1. reassess state actor/ private association status of political parties.

    2. challenge onerous ballot access rules.

    1. change primary/nomination rules.

    2. liberalize ballot access.

    electoral college

    1. eliminate by way of constitutional amendment.

    2. move states toward more proportional systems (such as the failed in initiative in colorado).

    voting technology

    1. challenges to states that use a variety of technology with different error rates.

    1. push for elimination of low quality technology.

    2. require voter verified paper trail for electronic voting machines.

    3. internet voting.

    macroinstitutional reoforms

    1. reform of heavily majoritarian structure of representative institutions (e.g., decline of committee authority, concentration of power in majority party caucus, decline in opportunities for debate).

    2. eliminate the filibuster.


    Friday, December 10, 2004

    Post by Jennifer Klein

    One task we have before us to discern and articulate what the links are between labor issues, economic justice, constitutional rights and democracy more broadly. In the Progressive Era and New Deal era, progressives, liberals, and the left talked of industrial democracy, or a political democracy accompanied by economic democracy. Given that no one seems willing to use the language of economic democracy today, it perhaps is seen as too tainted by the baggage of Marxian socialism. Nonetheless, we can reflect on what made the ideological claims of “industrial democracy” and economic democracy, social security and economic security so potent. It was a frame that linked equality and security claims with action, autonomy, voice, and participation claims. The empowerment part of the equation was crucial. Workers and community residents had to have the power to participate in the decisions that affected their welfare, wherever that might be. We cannot go back to the language of industrial democracy, since it is not the reality that shapes the daily world for most of us. Yet if we are devising a new ideological framework, I recommend that we articulate one that once again reflects imperatives of these dual claims.

    Union representation still holds out the promise of achieving these aims, even more so in a multi-ethnic, service-based economy. The Wagner Act (NLRA), however, has been blocked from ascending to the level of constitutional principle, as it were. And as we know, the proceduralism of the NLRB and union recognition process has actually become an impediment to workers‚ ability to form a union. Yet the all-important Section 7 of the original Wagner Act of 1935 could not have been more clear in its constitutional aspirations: “Employees shall have the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” The associational rights of workers did not initially depend on a particular process for certifying bargaining agents, especially one that allegedly had to be approved by employers or the state. The point was that employees would engage in self-organization. Subsequent legal interpretations from 1939 through the 1960s gradually subverted this right in multiple ways: channeling collective bargaining into narrowest economic form possible, severing unions from extra-workplace supports and political alliances, and finally suppressing organizing all together. Restoring a constitutional right to organize would not only revitalize unions at work; it would open the possibilities for worker organizations to cooperate and flourish with other community organizations that are concerned with essential aspects of our social lives: housing, health care, immigrant rights, education.

    Finally, I was surprised to learn at our Dec. 4 meeting (New Politics session) that forms of political engagement or action outside of voting are “not constitutional issues”-- and therefore need not be discussed. Perhaps this is one additional reason why the Right has been so successful at severely constraining freedom of assembly. Have liberals accepted the notion that the ability to rally in front of city hall, march on the street, picket a store or power plant, or hand out leaflets in front of a public or private building is merely a law enforcement or public safety matter to be handled through administrative, bureaucratic means? Law enforcement agencies, employers, and business entities have been increasingly aggressive in controlling our ability to take political action within public space and increasingly punitive against those who do. Towns and cities of all sizes have been using the permitting process in highly restrictive ways to stymie or limit public collective actions. They have attached onerous insurance liability requirements and new permit fees to suppress such applications; police have resorted to free-speech zones or pens, use of barricades, pre-demonstration confiscation of literature, signs and banners. Add this to employers‚ use of mandatory, forced overtime and surveillance, and not surprisingly, fewer people have the time or the ability to be part of local meetings or organizations.

    Those of us who live in New Haven might recall that a mere two years ago union members and workers were arrested for handing out leaflets on the sidewalk outside of the Yale New Haven Hospital; they were arrested by Yale New Haven Hospital‚s private police force. These union activists were outside the hospital because of the hospital's success at suppressing workers‚ right to form a union and exile of any workers who want to speak about the union from their workplace; yet their right of free speech was not even safe outside of their workplace! (Several months later, one of the fired hospital workers came to speak at my neighbor‚s house, a house meeting that was infiltrated by hospital management, who proceeded to write down everyone else‚s name at the meeting). It seems to me there is a confluence of constitutional issues here–where corporate prerogatives subvert civic action--which has undermined economic and political rights in our current undemocratic culture.

    Friday, December 03, 2004

    The Constitution in 2020: Forum Cycling and Synergies -- post by Reva Siegel

    It is a great pleasure, and provocation, on the eve of our first meeting, to read the postings on this blog begin to make claims on the Constitution in 2020. I read with many thoughts and questions, especially one that has long haunted me: how might the Constitution of 2020 (understood as law, as institutions, as culture) alleviate the harshest of inequalities among us? And how is it likely to naturalize them? Are there claims that Americans might make on one another, on government, on text, history, tradition, shared intuitions about justice, on national narratives about past and future, that would support constitutional development in the traditions of the best, rather than the darkest, moments of our constitutional history? How do we promote the development of a Constitution more likely to redress—rather than rationalize— the most extreme forms of deprivation and exclusion that we, the people, recognize and contest in 2020?

    The postings address our constitutional future in registers of prediction (what relevant forms of change can we foresee?), of prescription (what values, commitments, visions define how might we best live together?), and practical reason (what understandings and practices of constitutionalism would best realize our aims?). It is in this last register, the register of practical reason, that I respond to a debate running through these postings.

    Call it the forum question. It appears in at least two varieties. One running exchange asks: Do progressives seek to realize the Constitution of 2020 in courts, through the art of adjudication, or should progressive constitutionalists abandon their romance with the Warren court and pursue constitutional government in politics, through the dignity of legislation? The forum question appears in yet another form in these postings, as a set of questions concerning federalism: Should progressives practice fidelity to the national government, or is it instead time for progressives to abandon their romance of the national and to cultivate localism or cosmopolitanism—to focus on states, cities, and transnational arenas as the fora of constitutional development? In a number of postings the forum question takes the form of an either/or debate. Some postings advocate forum cycling (from national to local or transnational, from courts to legislatures), while others counsel forum fidelity. The exchanges at time slide from the register of practical reason into the register of prescription, so that conversations about forum appear as questions of progressive commitment or identity rather than strategy. How we understand these questions of forum, in the register of principle or practical reason, is a deep and complicated question, which we could well spend some time discussing.

    For present purposes, I will speak solely in the practical register. In seems to me that in imagining the Constitution in 2020, it would help if we moved the discussion of forum beyond the either/or form (courts or legislature, trans/national or local) to talk about the possibilities of forum synergies. What forms of interaction among courts and legislatures—and the “constitutional” institutions of civil society—might promote constitutional development in ways that would vindicate progressive values? What kinds of interaction among national, state, local, and transnational constitutional regimes might promote constitutional development of a kind that supports progressive aims? If we think about this question as a question of first principles or expressive identities it seems like we have to debate it and choose one or the other—transnationalism or constitutional nationalism, federal government or states rights, judicial supremacy or legislative constitutionalism. In some contexts, and for some purposes, in doctrine and in politics, the forum question may become a question of first principles and expressive identities—it surely has been one in matters of race since our founding.

    We need to anticipate and address these conflicts, but doing so will not exhaust the forum question—and may leave it unaddressed in its most difficult and interesting dimensions, the dimension I am calling forum synergy. I recurrently find myself thinking about the inequality question in this way. Issue by issue, what are promising synergies between adjudication and legislation? (How has antidiscrimination litigation altered national willingness to enact minimum entitlement legislation like the Family and Medical Leave Act, and how has the FMLA in turn begun to affect understandings about “stereotyping” and economic rationality? What kinds of cases, and what kinds of state and municipal legislation, might build a foundation for a new national legislation, etc.). Issue by issue, where is forum law (or a forum decisionmaker) receptive to progressive forms of constitutional elaboration? (Where do we want to pursue questions of social citizenship, or educational rights—and where can progressives best make claims about the regulation of family/intimate relations?). And what movements are available will carry these claims from forum to forum? (Constitutional development occurs as movements act in a system that has horizontal and vertical forms of jurisdictional redundancy, as Cover, Ackerman, and others have shown us.)

    To think creatively about the forum question in this practical register we need to be self-conscious about constitutional culture. We need to revisit implicit pictures of the constitutional order as we consider how we want to act in it, for the obvious reason that implicit pictures of the constitutional order exert regulative force as we make judgments about strategy and advocacy and as others make judgments about role, authority, and legitimacy. (I think of CEDAW and same-sex marriage in San Francisco—or Frank Michelman’s call for new framing statutes and amendments in Congress.) As many postings on this blog point out: We need to ask, where do progressive commitments amount to reifications of past conflicts? Where do they entrench doctrines whose normative valences have long ago been flipped? What parts of our history bear closer scrutiny in light of current constitutional conflicts? How do we encourage constitutional actors to think creatively about their roles? How can we think creatively about such questions inside the legal profession—and in what ways do lawyers and law professors need to guard against an understandable tendency to overvalue the constructive force of law?

    -- Reva Siegel