The new Constitution in 2020 blog

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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.

“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

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

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

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

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

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

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.]

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

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

"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:
http://www.lrb.co.uk/v27/n04/acke01_.html

-- Bruce Ackerman

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

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

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

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

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.

issue	judicial action	statutory 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.
redistricting	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.
participation	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.

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.

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

America and the World, December 2004 – post by Harold Hongju Koh

America is an exceptional country, with exceptional capacity to fill global vacuums, shape global regimes, and to generate global solutions. In the last half-century, it has played that role largely by promoting global institutions and constitutions. As I have argued in the Stanford Law Review, our post-Cold war, pre-9/11 policy was broadly characterized by an avowed strategy of promoting democracy from the bottom up around the world, then mobilizing global cooperation among democracies, within international institutions and international regimes, in order to solve global problems.
Within that broad frame, late 20th century American foreign policy was characterized by:

1. an emphasis on diplomacy backed by force, with force itself used as a last resort;
2. a human rights policy that focused on human rights reporting, various forms of human rights conditionality, accountability through a growing emphasis on international criminal justice, and a willingness to engage bilaterally and multilaterally with repressive regimes around the principles of FDR’s “Four Freedoms” speech (although in fact primarily focused on promoting civil and political rights);
3. a democracy-promotion policy that focused on democracy-building from the bottom up; and
4. a general procedural orientation that Strobe Talbott describes as “strategic multilateralism and tactical unilateralism.”

At home, our pre-9/11 National Security Constitution was premised on a post-Youngstown, post-Vietnam/Watergate vision characterized by

1. a constitutional theory of shared powers, though marked in practice by extreme judicial deference to executive prerogative in foreign affairs;
2. internal executive branch decisionmaking characterized by strongly centralized constitutional advice, flowing to the President primarily through the Attorney General and discipline imposed by the Office of Legal Counsel at Justice (OLC),
3. varying degrees of congressional oversight and checking of executive overreaching,
4. presumptions in favor of open government (FOIA, declassification) and against governmental surveillance of the domestic arena; and
5. a relatively generous attitude toward resident aliens’ rights to participate in most aspects of American life (except for voting, jury duty, etc.) and an antipathy to the notion of extralegal or extrajudicial geographic zones or extralegal persons.

Remarkably, in only three years, both sets of premises have been largely inverted in the name of homeland security:

1. As Afghanistan and Iraq foreshadow, advocates of homeland security now urge that it be preserved by episodes of discretionary warmaking by coalitions of the willing on real and potential state sponsors of terror-- based on international law theories of preemptive self-defense and factual claims of real or potential access to weapons of mass destruction -- constrained more by resource overstretch than by constraints imposed by international law;
2. our human rights policy has shifted toward a “Cold War” double standard of downplaying or apologizing for abuses committed by ourselves or our allies as necessary elements of the War Against Terror, hostility toward international criminal adjudication, reduced engagement with repressive regimes, and a dramatically increased emphasis on Freedom from Fear as the overriding human rights value;
3. With democracy promotion, we have shifted to hard top-down, militarily-imposed and resource-intensive democracy promotion in Afghanistan and Iraq, soft faith in “domino democratization” throughout the Middle East-- accompanied (ironically) by dramatically reduced engagement in the Middle East peace process-- and a noticeably reduced role in democracy promotion in Central and Eastern Europe (see Ukraine), Africa (see Cote d’Ivoire), Latin America (see Venezuela) and South Asia (see Pakistan);
4. and a shift toward strategic unilateralism and tactical multilateralism, characterized by a broad antipathy toward the previous emphasis on global engagement through diplomacy, institution- or constitution- building by treaty negotiation.

At home, the post 9/11 constitutional vision has shifted, as other bloggers here have noted, toward a set of premises that would enable the policy orientation just described:

1. a Curtiss-Wright theory of extreme executive prerogative in foreign affairs;
2. internal executive branch decisionmaking characterized by constitutional advice flowing to the President primarily from DOD General Counsel’s Office and the White House Counsel
3. modest or minimal congressional oversight of executive activity,
4. a post-Patriot Act presumption in favor of governmental secrecy, reduced declassification and growing governmental surveillance of the domestic arena; and
5. growing scapegoating and chilling of aliens’ participation in American life with executive efforts to create both extralegal and extrajudicial geographic zones (e.g. Guantanamo, Baghram) and extralegal persons (e.g. enemy combatants) who are subject to various kinds of nonjudicial process,
6. and a concerted effort to persuade the judiciary to abstain on “passive virtues” rationales from substantive oversight of executive branch activity and to reject incorporation of international and foreign law into domestic legal review, so as to exempt the U.S. government from charges of embracing double standards.

In the next few decades, the appropriate constitutional response will not be rocket science or innovative fixes, but rather, time-honored checks-and-balances reasoning:

1. continuing reaffirmation of Youngstown as the governing constitutional theory of shared power in foreign policy decisionmaking;
2. strengthened internal checks and balances within the Executive Branch through a meaningful role for Justice on the constitutional side and State and the Trade Representative and the policy side;
3. Enhanced congressional oversight and expertise, especially in the foreign affairs, intelligence and armed services committees, and greater use of bipartisan commissions (a la the 9/11 commission) to expose structural governmental failures,
4. resistance to new legislation designed to enhance further governmental secrecy and surveillance and to scapegoat aliens,
5. constitutional protection for enhanced media oversight to break through secrecy and expose abuses (as in e.g., Abu Ghraib, Iraq and the search for WMD)
6. continued litigation by NGO groups:
a. to resist scapegoating of aliens and executive efforts to maintain extralegal and extrajudicial zones and extralegal combatants subject to minimal judicial review,
b. to persuade the judiciary to maintain substantive oversight of executive branch activity,
c. to support selective incorporation of international and foreign law into domestic legal review, so as to check the creation of a constitutional jurisprudence of rights which is visibly below global human rights standards, and to
d. create a set of judicial canons to govern the relationship between domestic and emerging international jurisprudence (e.g. U.S. and ICJ in the death penalty area; U.S. and WTO and NAFTA panels, U.S. courts and international arbitrations in the commercial arena).

Re the last, unlike some, I have not given up on the courts, and particularly the Supreme Court, which in the last few terms has imposed judicial review on Guantanamo (Rasul), granted due process rights to enemy combatants (Hamdi), sustained Alien Tort litigation (Sosa v. Alvarez-Machain), and acknowledged the relevance of international standards with respect to privacy (Lawrence), equal protection (Grutter) and death penalty (Atkins, and perhaps this term in Roper). This orientation arises in good measure from the creation of a “transnationalist majority” created by the joining of Justices Kennedy and O’Connor to Stevens, Souter, Ginsburg, and Breyer (forming the majority in most of the cases just enumerated).
Nor has the trend toward transnationalist jurisprudence at the Supreme Court been a partisan one. Sosa, for example, was decided by the same 6-3 majority, with four of the transnationalist justices being Republican appointees (Stevens, O’Connor, Kennedy, and Souter). Thus, as in all other areas, the orientation of new judicial appointments will be pivotal in determining where our constitutional jurisprudence moves in the next two decades, and whether it moves America in a transnationalist or nationalist direction.

-- Harold Hongju Koh

The Progressive Constitution and the Public Good -- post by Mark Agrast

Several posts identify the progressive Constitution with such overarching values as human dignity. Others seek a unifying principle in a revival of the Privileges and Immunities Clause—a proposal which seems as pregnant with possibility, though alas, no closer to realization, than it was when Charles Black urged such a revival as a replacement for the “leaky tire” of substantive due process. With our current political alignment unlikely to yield a Court that will incline toward such holistic modes of interpretation, American progressives can only look on with envy as foreign courts interpret such modern charters as the Constitution of South Africa, whose very text enjoins the courts to “promote the spirit, purport and objects of the Bill of Rights.”

Could such a generous approach to unenumerated rights ever command popular assent in America? It seems to me that even in the dismal tidings of this past November there are seeds of hope. The pollsters tell us that a substantial proportion of the electorate voted on the basis of “moral values.”  We can stipulate that the values they chose were the wrong ones. Yet their willingness to put aside their self-interest is a good sign for progressives—if we can seize the opportunity to offer a compelling moral vision of the kind of country America can be.

Despite what the election results might seem to indicate, most Americans subscribe to such progressive values as fair play, shared sacrifice, equal justice under law, and respect for the dignity of every human being. They share the progressive insight that our greatness as a nation stems from our ability not only to tolerate but to celebrate our diversity—and from a shared devotion to democratic values compared to which our differences are of little account.

Our failure to reify those commitments allowed right-wing plutocrats successfully to portray their Democratic opponents as the party of special interests.  Yet as the unwholesome effects of this new Gilded Age are felt more widely, progressives have a fresh opportunity to present a conception of the public good that is rooted in our shared values, and to give concrete expression to those values in policies that foster such widely-supported goals as healthy communities, good schools, clean air and water, competitive markets, an equitable tax system, and a secure retirement.

We should not shy away from framing these goals in explicitly moral terms; indeed, we must do so. At the Center for American Progress, we are working with our allies in the religious community to infuse our progressive messages with the language and spirit of the prophetic traditions that animated so many earlier movements for social change.

Nor should we abandon our commitment to equal protection for the excluded and the disenfranchised in our anxiety to escape the “special interests” label. Our task is rather to frame a narrative that links those concerns to the strength and well-being of the community as a whole.

-- Mark Agrast

Constitutional Politics or Constitutional Law? -- post by Chris Schroeder

Some people, myself included, are coming to this event having already participated in a number of discussions about the current state of progressive Constitutional Law. These have not been entirely upbeat, celebratory affairs. At some point, the success of conservative Constitutional law is almost always drawn into the discussion. Conservativism in Constitutional law seems to have seized the intellectual momentum, forcing progressive doctrine onto the defensive and in the process exposing underlying weaknesses in those defenses. Sometimes a stylized story gets told about how this all came about. It probably does not need repeating in this company, but I will do so because Jeff Rosen has recently done it for me in his piece in the Sunday NYT a couple of weeks ago:

Conservatives set out to develop a constitutional methodology that would ensure that the liberal decisions of the Burger and Warren courts were overturned. In 1985, Attorney General Edwin Meese III gave a famous speech, declaring, ''We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.''

After Mr. Meese's speech, ''originalism'' rather than ''strict constructionism'' became the judicial buzzword of the 1980's. Still, the effort by President Reagan and the first President Bush to appoint ''originalist'' judges had mixed results. After the Senate rejected President Reagan's nomination of Robert Bork in 1987, only two of the five Republican appointees -- Antonin Scalia and Clarence Thomas -- called themselves constitutional ''originalists.'' Three justices -- Sandra Day O'Connor, Anthony Kennedy and David Souter -- did not. Partly as a result, the Rehnquist court once again sided with liberals in the culture wars.

In the 1990's, during the Clinton era, conservatives redefined strict constructionism once again. They focused on areas like deregulation, choosing cases they could realistically win in the courts. ''There was less political resistance to the court's federalism decisions than abortion and school prayer, because they're less on the radar screen,'' Professor Yoo said.

In 1995, Douglas Ginsburg, ... wrote an article calling for the resurrection of what he called ''the Constitution in exile,'' by which he meant strict constitutional limitations on federal power that were abandoned after the New Deal. In that article, Mr. Ginsburg wrote that he never expected these forgotten doctrines to be resurrected in his lifetime.

But his article coincided with the beginning of the so-called federalism revolution on the Rehnquist court. In 1995, for the first time since the New Deal, the court said there were limits on Congress's power to regulate interstate commerce. And since then, the court has struck down 33 federal laws. During its first 70 years of existence, the court invalidated only two.

Although conservatives grow stronger every year on the federal bench, progressives still predominate on law school faculty, and we still write prolifically on constitutional topics, but much of the most widely commented upon progressive writing is either long on exposing deficiencies in conservative doctrine and shorter on comprehensive articulations of progressive doctrine, or else is urging us to adopt a less court-centered view of constitutionalism. These are admirable projects; I am for exposing the contradictions and weaknesses in conservative doctrine where appropriate and I think progressive politics and progressive civil society are in the end much more important than progressive law can ever hope to be in creating the conditions in which a progressive society might flower.

I am increasingly curious, however, as to whether or not one additional possible response to the conservative success story – a response that has come up repeatedly in those other discussions to which I referred – is one that any critical mass of progressive scholars wants to pursue. That response would steal a page from the conservative play book by producing a cogent statement of progressive positions. There are a variety of forms such an effort might take. One would approximate the remarkable documents that emerged at government expense from the Meese DOJ, documents that Dawn Johnsen has so wonderfully excavated, and which became a sub rosa screening device for DOJ lawyers in their judge picking work under Presidents Reagan, Bush (41) and I assume Bush (43). It would not have to take that form, however. The essential ingredients to me would be (a) as clear a statement of constitutional interpretive principles as feasible; (b) a set of statements of progressive positions on significant disputes within constitutional doctrine. Perhaps it would also contain (c) a section articulating the relationship between these elements and the basic principles of a progressive society.

I interpret the larger progressive literature as well as the blog entries leading up to the weekend conference as raising a significant number of reservations about such an enterprise. They include:

constitutionalism and progressivism are incompatible;

if such a project must be grounded in a constitutional methodology, it will fail, for there is no single methodology that claims sufficient progressive adherents to serve the purpose;

even assuming a consistent constitutional methodology could be developed, it would not be one that endorses all of the important progressive legal positions across the breadth of issues of concern to progressives, so that pursuing methodological questions will be divisive and counterproductive;

there is in fact no hope of articulating a methodology that is simultaneously defensible, desirable and constraining on judges – conservatives don’t do it, they only claim to do so, progressives could not do it, they don’t even claim to do so – because method ultimately get displaced by outcomes when the outcomes are at odds and important;

in particular, the conservative claim of methodological consistency is hypocritical – the claim to be in possession of some apolitical method such that judges who use it will be applying the Constitution while anyone else will be legislating from the bench serves a useful political purpose but the claim cannot be vindicated by observing the practice of conservative justices; progressives should not be interested in mirroring that hypocrisy;

whatever the possibilities for a set of progressive constitutional doctrines in principle, our Constitution cannot plausibly be construed to contain sufficiently progressive doctrines to help the cause (in many areas, the best we can hope for is to get the courts out of the way of progressive legislation);

under any plausible scenario of judge made Constitutional doctrine, progressivism has no prospect of succeeding except through legislation, so we need to devote our energies there; the doctrinal project seems important, but my own research agenda finds other questions more interesting/important, so don’t distract me;

you miss the point of Jeff Rosen’s story if you think the doctrinal development was its center; the key to conservative success has come from controlling the Presidency between 1968 and now for all but the Carter and Clinton years;

Memo from CLS: the doctrinal project is incoherent; bricolage is all there can be.

I will not even attempt a rejoinder to this undoubtedly incomplete, in places even inconsistent, range of reservations, except to express the hope that at some point during the weekend we can see whether there exists the combination of sufficient belief in the utility of such a project and a felt sense of urgency about one to undertake it. I hope we will find that combination present, not in any way with an intended slight on the work being done on popular/populist constitutionalism, small “c’ constitutionalism, thin constitutionalism and other correctives to an excessively court-centered view of governance. At the same time, I don’t think one needs to embrace court-centrism, and certainly not court-imperialism, to believe that courts will remain important adjudicators of rights when we reach 2020. The social/legal culture will not change that rapidly, and the wrongs for which people currently appeal to the courts for redress will not disappear, while at the same time new ones will come into view. People will continue to use the courts as platforms of expression, as well. Courts can perform important functions at least by smoothing some of the more jagged edges off legislative and executive transgressions. It might just be that were we to put our minds to it, we could develop a doctrinal agenda that was at the same time sufficiently supportive of the larger progressive project to be worth pursuing, sufficiently respectful of disagreements under the progressive tent and sufficiently grounded in interpretive commitments we are prepared to make to be both feasible and of some value.

But then, again, maybe not. Certainly people can roll up their shelves and go to work on court related projects – when I realize that the only gains of the Republicans in the House of Representatives last month were the result of the Texas gerrymander, I think of the increasingly pressing need to do better with the “law of democracy” – without embracing any larger progressive doctrinal project, and there may be opportunity costs that make the latter an actual drain on activities like the former. It is just one of the questions on which we might focus at some time during the upcoming event.

-- Chris Schroeder

The New Equal Protection -- post by Kenji Yoshino

Discrimination in the United States has been shifting in some quarters from targeting groups toward targeting subsets of the group that fail to assimilate to the dominant group's norms. The movement has been from "no racial minorities allowed" to "no cornrows or non-English languages allowed," from "no women allowed" to "no mothers allowed," from "no gays allowed" to "no flaunting gays allowed," and so on. Should the law prohibit such "second-generation" discrimination, which targets the chosen, cultural, or behavioral dimensions of social status? An affirmative answer might begin by pointing out that discrimination against the subgroup may reflect discriminatory animus toward the group as a whole, that such discrimination may have a disparate impact upon the group even in the absence of animus, and that the attribute defining the subgroup may be deserving of protection in its own right.

The constitutional remedy for such second-generation discrimination is not obvious. The Constitution's equal-protection guarantees cannot currently redress such harms because they have been narrowly construed. It is familiar history that, since 1976, discriminatory impact alone is insufficient to trigger heightened judicial scrutiny. That peremptory strikes directed at Spanish speakers will have a disparate impact on Latinos will not in itself result in the strikes being closely examined by the Court. And while discriminatory impact may be probative of discriminatory purpose, the Court in 1979 defined discriminatory purpose in a highly restrictive manner. To meet that definition, strikes directed at Spanish speakers would have to have occurred "not in spite of, but because of," their effect on Latinos. Finally, in most instances, the Court will not scrutinize second-generation discrimination because it has refused to accord heightened scrutiny to first-generation discrimination, as in the cases of disability or orientation.

The Court's unwillingness to redress second-generation discrimination under the equal-protection guarantees can be traced in large part to the explosive pluralism of American society. In restricting protections for historically subordinated groups, the Supreme Court has repeatedly alluded to the increasing demographic diversity of the American polity. It has expressed concern that if it protects a cultural attribute associated with one group, it will be pressed to protect analogous attributes associated with other groups. That consideration will draw the Court into comparative judgments about the validity of cultures and groups. Understandably, the Court would rather be dead in a ditch than make such judgments.

Yet the Court has not left cultural rights entirely unprotected. Substantive due process and the somewhat arcane rights strand of equal protection have addressed equality concerns under the guise of protecting fundamental rights. In the 1970s, the Court vindicated some of the rights of the indigent not by giving class heightened scrutiny but by declaring some rights -- such as the right to travel or the right to access courts -- fundamental. While the rights themselves were universal, their origins were particular, in more than the trivial sense. They arose from an identity-based social movement the Court was not willing to protect as such.

Recent decisions like Lawrence v. Texas (2003) or Tennessee v. Lane (2004) limn a similar trajectory. While these cases could be most plausibly categorized as equality cases pertaining to sexual minorities or individuals with disabilities, the Court decided to protect these groups through due process rather than equal protection. That doctrinal move reflected a shift away from equality toward liberty as the ground on which historically subordinated groups would be protected.

Reva Siegel and I are writing an essay arguing that to the extent the Court continues to vindicate equality claims, it will increasingly do so through fundamental-rights adjudication. This shift permits the Court to lift up a historically subordinated group without explicitly giving it constitutional solicitude as a group. Fundamental-rights analysis, of course, raises slippery slope concerns of its own. But it has the virtue of emphasizing where citizens tack together rather than where we veer apart. Taken to its outer limit, it also gives the trend toward globalization its due, as Lawrence demonstrated in grading civil rights into human rights. (Human-rights lawyers, take note: substantive due process is now an even more viable vehicle through which to internalize international norms.)

What will our anti-discrimination law look like in sixteen years? Will we have defined second-generation discrimination out of the category of legal harm altogether, leaving "cultural rights" to be redressed by "cultural remedies"? Will we have re-opened any of the equal-protection doors the Court closed in the 1970s, securing a "substantive equal protection"? Or will substantive due process (or some other line of doctrine) have become the "new equal protection"?

What will we (or they) have chosen, and how wise, in 2020 hindsight, will those choices appear to our eyes?

--Kenji Yoshino

Future of the Constitution: Foreign Policy and National Security -- post by Stephen Holmes

The Iraq war illustrates the pathological consequences of unilateral commander-in-chief power to define the "threats" to American national security on the basis of secret information that is never examined by a constitutionally independent body with a realistic chance to withhold approval for the commitment of military force abroad. The gravest injury to constitutional government caused by "the war on terror" has not been to civil liberties but to checks and balances, namely, to basic constitutional mechanisms for self-correction, designed to facilitate midstream readjustment when disastrous policy failures become self-evident. At risk is not individual freedom but public reason.

One challenge is to develop, presumably on the basis of currently existing Congressional committees -- overseeing foreign policy, covert intelligence and military affairs -- a serious and bipartisan forum in which to debate, define and establish reasonable priorities among various and evolving threats to US national security. The vital importance of such a forum, which obviously must take into account the government‚s needs in this area for secrecy and dispatch, is revealed by the basic irrationality of the current approach to the war on terror. Fundamentally, the administration reasons as follows. To determine the need for a military response to a looming threat, we need to multiply the probability of the threat by the gravity of the threat. Even a remote chance of a suitcase nuke in Washington, DC, they irrationally conclude, requires us to tie down 70% of our national-security assets in Iraq. The fallacy of such reasoning is obvious to anyone outside the bunker: it ignores opportunity costs and fails to husband resources (to keep our powder dry) for the inevitable emergence of even graver and more imminent threats elsewhere (in Korea, say, or the Taiwan Straits). This is how the constitutionally untrammeled and unilateral commander-in-chief power to define national-security threats undermines public reason.

Assuming continued one-party control of all branches of the federal government, the last effective check on executive-branch irrationality comes from inside the executive branch, from dissenters inside DOD, CIA and so forth. Such voices are currently being stifled. If you speak truth to power, you lose your security clearance. This is not just a problem. It is a catastrophe. To address it, we need something more than strengthened whistle-blower laws. We need some sort of legal requirement for the (limited) disclosure of fundamental debates over threat assessment occurring inside clandestine intelligence agencies. Rationality requires our conclusions to be driven by evidence and argument. Partisanship, by contrast, encourages the one-eyed search for evidence and arguments to corroborate pre-established policy choices. To exaggerate somewhat, we can say that the question facing us today is this: will one-party government recreate our intelligence agencies in the image of AEI and FOX news, where the books are always cooked, or will the spirit of nonpartisan professional be constitutionally preserved?

Finally, we must deal with the DOD takeover of foreign policy, facilitated by the happenstance of a Vice President with personal ties to the Secretary of Defense, but which also has deeper roots in the massive power of the Pentagon and private defense contractors. DOD tends to interpret the international threat environment in the light of its own capacities. Threats that cannot be handled militarily are downplayed. This is obviously unwise and indeed immensely dangerous so long as DOD's version of the threat environment cannot be effectively challenged by the State Department and other agencies where at least some knowledgeable and worldly personnel can help bring other kinds of threats into focus. The primary threat to US national security is not the possibility that non-nuclear states will go nuclear, but rather the possibility that existing nuclear stockpiles will sluice into the clandestine international arms market. This grave threat cannot be decreased by military force or the threat of force. It requires diplomacy, a tightened arms-control treaty regime, and intensified international police cooperation. These essential tools for enhancing American national security will be dangerously neglected until DOD's exaggerated influence over US foreign policy is substantially reduced. Ordinarily, the White House and the National Security Council can be expected to maintain some sort of reasonable balance between the Pentagon and the State Department. But these are not ordinary times. Can some sort of constitutional reform preserve the residual professionalism of State, and its capacity to resist DOD unilateralism, in the face of one-party rule?


--Stephen Holmes

Two Thoughts About the Future: One Concerning Courts, The Other Geography -- post by David Barron

There seems to me to be some irony in a progressive constitutionalism that siezes on the political process as the new preferred engine of constitutionalism at the very moment when progressives seem to have lost control of that process at the federal level. So I do not think that a progressive constitutionalism amounts to much if it takes as its abiding goal a de-emphasis of courts (or even a rasing up of politics). The capital P progressives writing with Rooselevelt in mind at least had a Congress and an executive branch that held out some promise of taking up the plan. I also think that a key way in which the constitutional culture develops is through the articulation of constitutional norms by courts - and while I realize that this "fact" is a product of past court-centered practices, I do not believe that it is likely to change much in the next 20 years. So I think, following Peter R., a major focus must be on articulating a progressive constitutional voice that could be articulated by courts -- if even in dissents. Reflecting on my own law school education, it seems to me that one of the most signficant developments jurisprudentially has been the emergence of textualism and orginalism as respectable jurisprudential claims that attract students and intellectual energy in law schools and among the informed public. There have been substantial efforts to refute these modes of arguments by progressives and they have made some headway. But my sense is that the next 20 years - if dominated by conservative judges as seems entirely possible -- is likely to produce new jurisprudential modes of argument that will be designed to supplant textualism and originalism as the conservative philosophy. My guess is that at present those modes of argument will be cast as structural claims about the constitution's general preference for institutional autonomy over individual rights. The more sophisticiated conservative authors already seem to be pressing these types of arguments on behalf of outcomes as disparate as Dale, the new federalism, and the president's prerogatives in the war on terror. For a sampling, see recent pieces by Wilkinson. I expect these modes of argument to get a lot of play in the law schools and to be very attractive to students, and so I think a key task of progressives over the next 15 years will, as a defensive matter, be to debunk or lay claim to this mode of analaysis. Work by Bill Marshall shows the promise of doing just that and I think we ignore doing this kind of work at our peril.

If the court/politics distinciton is not the right framework for structuring our thinking about where we should be going, what is? My suggestion would be to focus on geography. The old progressives were very much aware that the constitution needed to be updated to account for an increasingly urbanized and nationalized population and that it needed to be made responsive to the kind of more urban and national society American was becoming. Reynolds v. Sims is but the capstone or exemplar of that effort. But much of the progressive constitutional legacy could be understood in this way, I think. Our condition is different and harder. It is one, I think, that is marked most directly by the rise of suburbia and now exurbia within a newly gloablizing order. How
should progressives want the constitution to be made to respond to that situation? We can't simply argue that we need to make the constitution more responsive to these trends. That's why our situation is harder than the one faced by the progressives of old. After all, neither globalization or suburbanization points in a progressive direciton in the way that the move from a rural to an urban society did. Still, one area surely concerns property rights in land and the constitution's toleration of the regulation thereof. Any effort to alter current decentering trends which by all accounts have negative effects on progressive politics will require a degree of land use regulation that it is not clear curreent views of due process or takings will permit and that conservatives wil make a real effort in the future to ensure are not permitted. We need to think of ways of showing how the conservative progressive vision precludes us as a nation from responding to the deleterious consequences of current spaital and demographic trends. Consistent with this approach would be a renewed emphasis on the state of current state legislatures, which by most accounts are really not suited to assume the kind of planning tasks that a progressive vision would require. Should not the renewed interest in federalism provide progressives with an opening to really challenge the way state legislatures and executive branches are now configured? Might we want to put some greater energy into thinking of state constitutional referenda and the like that would help push states along more progressive paths? And might we not also want to begin to emphasize the dangers of balkinzation and to think of creative ways of thinking about a decentralization that still binds the union. How, given the red/blue divide, can we remain a union? Saenz, in this respect, seems likely to be a font of important progressive constitutional jurisprudence, perhaps even more so than Wickard v. Filburn was a generation ago. Similar kinds of questions need to be directed at the globalizing trends. What is a progressive view of the role that international institutions should have in shaping lawmaking at home -- be it NAFTA tribuals or the WTO or international intellecutal property treaties? And what should be the role of international lawmaking on our own understanding of the constitution? These questions in and of themselves are not that novel, but I do think it would be helfpul for progressives to see themselves at present in a moment in which the spatial ordering of the society they inhabit is changing dramatically from the ordering that produced prior progressive constitutinal visions. Reflecting on that fact, I think, may be helpful in structuring our thinking about what kind of constitutionalism we should want to be making for the future. Or, I want to suggest, it would be more helpful for structuring our thinking than would the courts/politics framework.

-- David Barron

Out of the Ivory Tower -- Into the Pragmatic Pan -- Post by Jeff Berman

According to the website, the conference’s goal “is to set forth a positive constitutional vision for tomorrow.” I would add two related goals to consider. 

First, as we define the vision, we must also consider how the vision will be presented publicly. We have failed to muster mass popular support of late for many reasons, but one of the biggest is that we’ve been getting slaughtered in the rhetoric war. 

This is hardly a novel point (and if you haven’t read George Lakoff’s op-eds or book on the subject, they’re worth taking a look at), but it’s essential that we understand it’s not enough to have better reasoning and more persuasive logic. Far too often we assume that just because we are correct, we will win. That’s a loser’s mindset, especially in a world where right-wingers take full advantange of people spending decreasing time paying attention to an increasing number of increasingly illegitimate “news” outlets.

Forgive the paste, especially for those who read his chilling NYT Magazine piece, but here’s how Ron Suskind described his discussion with a White House aide on this point:

“The aide said that guys like me were ‘in what we call the reality-based community,’ which he defined as people who ‘believe that solutions emerge from your judicious study of discernible reality.’ I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ‘That's not the way the world really works anymore,’ he continued. ‘We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors ... and you, all of you, will be left to just study what we do.’”

This isn’t to say we must fight fiction with fiction, but we must recognize how effective they’ve been and we've got to develop compelling frames for the nuts and bolts of our compelling constitutional vision. While that frame should be positive, we can't ignore the need to effectively reframe the vision they offer.

Second, progressives are not, by our very nature, inclined toward discipline. As free-thinkers, we fight being bound doctrinally. Also, frequently, as individuals approaching the law from parochial perspectives, we are unwilling to subordinate our individual concerns to the greater good. Meanwhile, Grover Norquist and Co. have done a remarkable job patching the smaller number of schisms dividing their community. 

As we articulate a constitutional vision that’s not simply a kitchen-sink recipe, it’s worth considering how we're going to get the largest possible segment of the progressive community on-board and on-message.

-- Jeff Berman

Enough Self-Doubt. Our Vision is About Human Dignity. And it is Legitimate. -- Post by Peter Rubin

To begin with, I don’t think giving up on the courts is really an option. This is so for several reasons. First, so long as the institution of judicial review remains, they will remain critically important players in defining the meaning of the Constitution. While the federal courts (and we must never forget the state courts) may not provide much comfort in the next sixteen years, they are inevitably in dialogue with the other branches and the understandings they propound are and will be profoundly influential. Second, constitutionalism itself presupposes the existence of certain rights and the protection of certain groups that are and must be kept beyond infringement by the political branches. These rights and groups are defined in part precisely by their political unpopularity. So while popular constitutionalism and a renewed focus on our political leaders (well, let’s maybe start with the few reachable ones) must be a priority, and while some issues may be amenable to real movement outside the courts (say, for example, the principle of market-based social citizenship to use Willy Forbath’s example), in many areas constitutionalism without the courts is Hamlet without the Prince. Finally, the members of the Court are human and they are inescapably responsive to the culture around them, particularly the legal culture. Promulgation of a progressive understanding of the Constitution – the judicially enforceable Constitution – among lawyers and law students in every state can have a transformative effect on what judges think of as acceptable jurisprudence.

So what should we hope the Constitution will look like in the Year 2020 – the judicially enforceable Constitution? There is every likelihood that the constitutional edifice we would prefer – never fully built and great portions of which have already been disassembled by the conservative courts – is about to become (to borrow the Right’s phrase) the Constitution that is in Exile, while Justices Scalia, Thomas and their three new colleagues invite (back?) in the one that they have had waiting in the wings. We need to have a shared vision of what, at least broadly speaking, that Constitution in Exile is, so that we can support and work for its realization.

One premise of this conference is that progressives lack a coherent constitutional vision. (I take “progressives” to mean a broad spectrum of people: liberals, those further to the left who share their basic goals and are committed to working within our legal system, and those more toward the center or even center-right, “moderates” who share their basic approach though they might balance things out differently in particular cases.) But I think the premise is wrong. I think that the major elements of a progressive constitutional vision already exist. I think that vision is well-grounded in the text of the Constitution, which is a profoundly civil-rights- and civil-liberties-protective document.

So my first point is a procedural one: We have to challenge the liberal self-doubt that makes us buy into the shibboleth that progressives are “result-oriented” while conservatives are principled. That self-doubt leads us to think that that the constitutional conclusions reached by progressives are based on feelings or compassion, which are something other than law, that progressives are not “strict constructionists,” that progressives are not in favor of “judicial restraint” nor respectful of the appropriate judicial role; that progressives are “activists”; that progressives are merely result-oriented. The suggestion that we have no shared vision both understates the principle behind progressive constitutional interpretation by judges and scholars and overstates the degree of coherence necessary (as demonstrated by the conservative legal movement) for a serviceable constitutional vision to be implemented. The judicial history of the past twenty years, exemplified uniquely by the Supreme Court’s decision in Bush v. Gore, does demonstrate that the threats that the right has described are real: They include a failure of judicial restraint, result-orientated abandonment of principle, and the abandonment of the judicial role in interpreting rather than making law. These threats, though, come today not from moderates and progressives, but from conservatives. Until moderates and progressives believe that, until moderates and progressives believe that the law is on their side, they cannot hope to transform American law.

As for the substance of the progressive vision, an examination of the cases we would all generally regard as having been decided in the “progressive,” i.e. not Scalian-conservative, way I think provides the answer. A progressive constitutionalism regards the Constitution as serving a basic purpose: the protection of human dignity.

It does so through structural checks on, and separation of, governmental powers; it does so through the Bill of Rights; it does so through the Ninth Amendment; and it particularly does so through the hard-won Fourteenth Amendment in both its equality- and its liberty-protective aspects, both procedural and substantive. And this guiding principle is captured in American constitutional jurisprudence, from Brandeis (see his Whitney dissent), through Brown, through Brennan (see almost anything he wrote, but start with his dissent in Michael H. v. Gerald D.), even through the present moment (see Lawrence v. Texas; Grutter v. Bollinger; Planned Parenthood of Southeastern Pennsylvania v. Casey). The law is, indeed, on our side.

Obviously such a guiding principle does not answer all questions – nor does it tell us (although I think realpolitik, at least, does) whether for example we should fight for judicially enforceable minimum welfare rights, or whether we should leave protection of the poor to be legislatively enacted on the market-based social citizenship model. But it points us in a direction. And there is lots of work to do on which we agree before we get anywhere near disagreeing. How about (for example and off the top of my head): Overruling The Slaughterhouse Cases; interpreting Congress’s Section 5 power in a robust fashion; returning to the text of the Eleventh Amendment and overruling Hans; ensuring the Ninth Amendment has equal dignity with all other constitutional provisions; construing “persons” in the Fourteenth Amendment so it includes aliens and doesn’t include corporations.

The human dignity principle has never been fully embraced or articulated by our side as animating its constitutional vision. I think it is preferable though to the leading other contender, the Carolene Products principle, which provides important insights but which seems to me ultimately inadequate for a number of reasons (some of which Bruce Ackerman first articulated): First, I think Carolene Products – itself a product of a period of reaction marked by a lack of confidence in the very idea of judicial review of legislation for compliance with the Constitution – is at variance with the text of the Constitution. Thus, if text is to be our guide, it is descriptively incomplete as a constitutional theory, and it is, in part as a consequence, normatively inadequate to protect the most important American values. Literature, art and music would be unprotected under a merely democracy-enhancing view of the Constitution. By contrast, racially discriminatory legislation resulting from a perfectly-functioning democratic process would be constitutionally valid.

Second, it fails (as Lea Brilmayer has observed) to solve even the problem it was crafted to address: What greater hubris could a court have than to claim to know what the democratic process would have produced had it been functioning “correctly”? Finally, to the extent we are talking about a constitutionalism that can be articulated by those active in the democratically elected and policymaking branches, not just by courts, the very reason for the articulation of the Carolene Products theory, that unelected courts should not be invalidating democratically enacted legislation, is absent.

Human dignity as a guiding principle reflects constitutional text. It is as or more legitimate as a guiding principle than Framers’ intent, or historical practice, or maximization of economic efficiency, each put forward, though inconsistently used, by the right to justify conservative constitutional results. Its pedigree in our jurisprudence is strong. And it reflects broadly shared American values.

-- Peter Rubin

Post by Nate Persily

For much of the second half of the 20th century political scientists criticized the American party system and the institutional architecture of the Congress for being "unresponsive." The "Responsible Party Government" theorists viewed the two big-tent political parties as dedicated to blurring their differences rather than offering authentic choices, and they saw Congress as an unwieldy collection of fiefdoms, rather than the Westminster-style of coherent hierarchical party rule that these theorists envied. Due in part to the reforms that school promoted as well as demographic and political changes they could not have countenanced, we now have a level of "responsible" party government that places enormous strains on the basic design of government the Constitution sets forth. For those of us who study the "Law of Democracy" THE question concerning the Constitution in 2020 is: How can we achieve representative government and competitive politics given the dramatic political, demographic and institutional changes that have gained momentum over the past ten years?

The dual threat to representation and competition comes from a party system that has polarized at the elite level and an erosion of norms that previously constrained partisan greed and manipulation of the rules of the game. The challenge for architects of institutional solutions or new constitutional rules in most of the relevant election law contexts (e.g., redistricting, election administration, voting rights), then, is to constrain the choices available to partisan actors and to increase the distance between such actors and those in charge of the processes that might lead to their replacement. A judiciary-focused reform agenda would promote interpretations of the First and Fourteenth Amendments that treat partisan motives as inherently suspect. As with the patronage cases, for example, which erected a First Amendment bar applied to low-level hiring, firing or independent contracting based purely on partisan motives, so too should decisions to punish voters or other officeholders based solely on partisan interests receive similar constitutional treatment. At the same time, an agenda of institutional reform would consist of a variety of measures designed to foster nonpartisan electoral administration.

I would be a very cautious advocate of both strategies, as neither comes without serous potential risks to the values they hope to further. Judicial intervention into this type of partisan politics comes with real costs and might very well do more harm than good, depending on oneís estimation of how current members of the judiciary would implement such rules. And our experience with the attempted creation of nonpartisan overseers of American politics (cf. the Independent Counsel) demonstrates how difficult and counterproductive the task of creating political insulation and independence can be. Much could be gained, I think, from an analysis of best practices of such bodies at the state level (e.g., the California Fair Political Practices Commission, the Iowa Legislative Services Counsel), as well as those of other countries (boundary commissions in Canada, Australia, and the U.K.).

The challenges to creating more accurate representation are even more daunting. Many blame incumbent-protecting or bipartisan gerrymanders for the polarization in the House of Representatives and state legislatures, and would urge aggressive judicial review of such plans as a remedy. There is something to that story, but a similar rise in polarization in the unredistricted U.S. Senate suggests institutional changes and leadership pressures within the Congress and the parties shoulder much of the blame. Insofar as districting has led to a rise in polarization, moreover, I can say from experience (as well as a marvelous study by the Austin-American Statesman over the past year) that the increasing political segregation of voters -- not between red and blue states but between red rural areas and blue cities -- makes the creation of competitive/politically balanced districts (let alone ones where minorities have an equal opportunity to elect their candidates of choice) very difficult. (Incidentally, increasing political segregation poses all sorts of interesting, constitutionally relevant problems worth exploring.) If the historic moderating pressures of the median voter in a single-member district system no longer provide the necessary constraints given the current institutional and demographic environment, then what is to be done? One possibility is to experiment with alternative forms of representation at the state level and to repeal the statute that requires single-member districts for Congress -- not exactly a politically popular solution. I would be eager to hear others' thoughts on this.

Post by Burt Neuborne

I’ll start by confessing that I do not think there is much wrong with the current model, except that we have lost the ability to control it. Losing national election after national election to folks who do not share our political views has starved the courts of the intellectual fuel needed to drive a progressive vision of the constitution. If we can figure out how to win national elections again, we can re-start the machine. As a practical matter, I fear that notions of popular constitutionalism lead into our most serious problem – progressives have been unable to harness mass popular support for much of our agenda. If we had been able to marshal mass support for our economic and social agenda, the current model wouldn’t need fixing. Why we will do better labeling the progressive agenda a matter of popular constitutionalism rather than politics escapes me.

Having said that, I believe that progressives cannot continue to rely so heavily on courts to advance our agenda. The 20th century consisted of two fifty-year cycles. The first fifty years saw progressives use politics to advance an egalitarian economic agenda, with conservatives using the courts to maintain the status quo. Until the New Deal, extreme economic inequality was so blatant and widespread that mass discontent could be counted upon to fuel electoral support for egalitarian political programs. The major social advance – votes for women – was also obtained by classic majoritarian politics. Conservatives fought a rear-guard action in the courts, using substantive due process and the contracts clause to slow economic regulation, and a states’ rights judicial agenda to blunt social tranformation.

By the beginning of Roosevelt’s fourth term, conservatives had realized that courts would not bar significant regulation of the market, including wealth transfers. At about the same time, progressives realized that local, perhaps even national, political majorities would frustrate efforts to extend the social agenda to blacks, and would block significant wealth transfers to the poor. The two sides then executed an institutional pas de deux, with conservatives turning to politics to advance an agenda glorifying the market, celebrating the social status quo, and pressing a strong national security agenda; and progressives increasingly turning to courts to destabilize the frozen social status quo, and blunt the excesses of a national security state.

We are now, I believe, at the dawn of a new cycle in which progressives will, once again, use politics to blunt the massive economic discrimination latent in the conservative position, and conservatives will attempt to ignite an unbending judicial protection of property rights. By 2000, both sides had achieved the core agendas of the last 50 year cycle. Progressives succeeded in using courts to trigger a social revolution, attacking discrimination based stereotypical thinking, and ushering in an era of intensely protected speech and expression. Conservatives succeeded in using politics to enshrine the market as an untouchable myth.

In retrospect, the most enduring progressive victories during the cycle involved initial judicial recognition of an Enlightenment social value embedded in the text of the constitution, followed by effective political organization designed to persuade the society of the moral correctness of the result. Brown was reinforced and solidified by the civil rights movement. Reed v. Reed and its progeny was reinforced and solidified by the women’s movement. The classic pattern was constitutional decision, followed by political organization, culminating in effective implementing legislation.

Unfortunately, three important components of the progressive social agenda failed to make the cut. Efforts to use the constitution as a wealth transfer device on behalf of the poor failed to make it through the first phase. Except for the right to counsel cases – which were really a form of social blackmail – courts rejected every effort to find rights in the constitution that actually cost money to implement. The principal Supreme Court failure was in the education cases. The two other components, abortion and homosexual rights, are in limbo between judicial articulation and popular acceptance. Until the majority is persuaded of the moral correctness of the judicial decisions, they will operate as a drag on progressives’ efforts to assemble an electoral majority on economic issues.

One final staple of the progressive judicial agenda may not be worth defending at all. David Hume warned that cutting religion off from the state risked spawning an energized institution that could survive economically only by charismatic appeals to the populace. He urged feeding religion just enough to keep it from getting too hungry. He may have been right. The religious symbolism cases may do nothing but enrage voters who might be natural economic allies. Freezing religious institutions out of the delivery of social services to the poor may be even worse – it may enrage potential allies, while making to the poor worse off.

In short, what we need is not a rise in the decibel level to a world of popular constitutionalism, but old-fashioned political shoe-leather designed to persuade the majority of the moral correctness of a women’s right to choose, and the moral correctness of toleration of homosexual lifestyle – without the added freight of an obsessive preoccupation with church/state symbolism. But that argument is merely the appetizer for the main course – a serious economic agenda that recognizes the primacy of markets, but includes a practical means of breaking through to the hard core poor. We lost the 2004 election for two reasons. First, our side had virtually no positive economic agenda. Florida adopted a minimum wage amendment by 72%. Ohio lost 250,000 jobs in the past four years. But we had little or nothing to say to those potential allies about real economic change. Instead, we alienated potential economic allies by embracing a rigid church-state position that plays directly into the hands of conservatives seeking to prevent the emergence of a majority supporting economic reform.

If, as I believe, we are entering a cycle in which we must win at the polls, our most important structural goal must be to harness the potential political power latent in the 40% of the electorate that doesn’t vote. The 2004 election added 15 million voters, an increase of almost 12%. But we are still under 60% voter turnout. This time around, conservatives turned out rural/evangelical voters in numbers that matched the increased inner city/youth vote. One obvious tactic is to find ways to talk to the evangelical/rural voter on economic issues. Another is to recognize that the conservatives have just about used up their reservoir of new voters – the bulk of the remaining 40% are in demographic blocs that tend to vote for a progressive economic agenda. Thus, continued efforts to increase voter turnout by lowering the transaction costs of voting are crucial. Same day voter registration is the most promising approach. National standards for Presidential voting is another. Compulsory voting, with a conscientious objection out, is the most visionary. Australia is one of several democracies operating a successful mandatory voting program. We require jury service, education, census cooperation, vaccinations, military service, filing tax returns, Grand Jury cooperation – why not voting? If I were focusing on constitutional reform, that’s where I would begin.

Finally, to the extent that courts will play a role in advancing a progressive agenda during the next cycle, I believe that we must change our approach to constitutional text. Until now, either we ignore it, or treat it as an infinitely malleable phenomenon. Instead, I believe that we should concentrate on a holistic reading of text that treats context, structure and placement seriously. For example, why is the Second Amendment after the First? Why does the Bill of Rights close with the Ninth and Tenth? Why do the six textual ideas in the First Amendment open with establishment and close with petition? Law professors should stop teaching constitutional law as a random set of clauses, and begin exploring the richness of the entire text.

-- Burt Neuborne

Post by Charles Sabel

Since we are evidently and inevitably going to mix discussion of background issues of principle and method with foreground programmatic concerns, let me get out of line and gesture at the former, leaving the latter for the meeting itself.

A rough and ready definition of democracy might be: collective, public self-authorship of the law, under changing conditions of collective, public, self, authorship and law. Another way to get at the same idea is to say that the definition of democracy, like the definition of just about all institutions, is relational and recursive. What we mean by the legislature and legislation depends on whether there is a president (and whether she is imperious); whether there are political parties (and publics of a certain kind to generate them); whether there are trade unions and other associations with credible claims to faithfully represent great, stable interests in civil society; whether there are administrative agencies that can draw on and credibly redirect the efforts of well established economic actors; and whether there is a written constitution, enforced in some by an apposite tribunal. Since the “meaning” of democracy depends on the relation of these and many other parts to each other, we say democracy is relational. Since a key input into our view about what needs to be changed about democracy at any one moment is our assessment of the output of the current relations among democratic institutions, our understanding of democracy is recursive as well.

Though these remarks, translated into your favorite theoretical idiom, are unlikely to be controversial, they are not quite vapid. For instance, if you think democracy, and a fortiori constitutional democracy, is relational and recursive, then it can’t be very helpful to appeal, for example, for the restoration of the dignity of legislation. Such an appeal could make sense as a maxim of prudence (“Don’t try end runs around popular sovereignty’), or as a claim about the existence of a short list of time-tested and un-improvable democratic institutions. But in the first case we would want to know a lot more about the nature of the popular sovereignty that’s getting the run around, and how to respect it in actual legislation; and in the second we would want a list of normative and positive reasons—fidelity to the will of the Founders? Cognitive limits to human decision making in institutions?—that warrant the belief that some historically recognizable form of legislation is as dignified as democracy can get. Similarly, if democracy is relational and recursive it’s hard to make sense of reference to particular Court decisions except on the assumption that, with respect to the domain of those cases, the institutional background is for practical purposes so fixed that only doctrinal innovation matters. But then we would want to know whether, with regard to our epoch, and the fears of constitutional crisis that bring us together, such fixity is the exception or the rule.
In noticing these issues my point is not to suggest that we need to agree on a meta-narrative about the changing context of constitutional democracy world wide as a precondition to marshalling our thoughts about immanent constitutional dangers. On the contrary: From my point of view at least a useful by-product of discussion of diverse responses to the current mess could be clarification of some of the elements of such a narrative, and of a theoretically and politically inclusive language for programmatically elaborating them. But to achieve even that kind of intermediate, provisional objective, we need to be agreed about its feasibility and desirability. Are we?
And if we are not, is it because we just disagree about what’s in the cards—what’s changing and changeable? Or because (as I, availing myself of my denizen’s immunities, sometimes suspect) constitutional law, being part of parcel of the relational, recursive democracy of a very particular time, is currently unsuited to reflecting on the changes besting it from within and without? Meetings of the kind we are about to attend are, of course, the perfect occasion for determining whether these kinds of questions are as impertinent they will likely seem.
In any case, apologies for the ginger meta mannerisms. When the time comes I’ll tell the experimentalist story of democratic transformation, and the emergent role of courts in vindicating social rights (to education, to decent foster care) that have in recent years often seemed hopelessly remote from constitutional protection.

-- Charles Sabel

Post by Dawn Johnsen

Those who seek to promote a progressive Constitution in 2020 absolutely must, as others have suggested, attend not only to the Constitution as judicially interpreted and enforced, but also to the roles of the political branches in upholding constitutional values and contributing to the determination of constitutional meaning. In addition to the essential task of working through differences in view(s) on the proper roles of each of the branches, we should work to effectively disseminate our views in ways targeted at opinion elites and government officials. We need to promote a less court-centered constitutional vision (for obvious reasons).

Even without resolving the substantial differences that exist among progressive academics (a brief digression, we always should be on the lookout for ways to promote our progressive vision despite differences among us), we can educate and encourage responsible political branch action regarding the basic (but far too little understood and respected) concept that the courts underenforce constitutional rights, and the political branches have an obligation to fill constitutional gaps and uphold rights beyond those that the Court will enforce. Others have noted Congress's potential (essential) future role in remedying social and economic inequalities through legislation. One anecdote from my time working for the Freedom of Choice Act (late 80's, early 90's) pre-Casey, when the Court seemed poised to overrule Roe or at least allow greater restrictions on abortion than Casey did: even Senators who were the most constitutionally sophisticated and also committed to preserving reproductive rights strongly doubted their authority to act to protect choice beyond what the Court would enforce (and this was before the Rehnquist Court's limits on commerce and section 5 power--how much harder in the future, as the Court diminishes judicial protection).

With regard to presidential power, Bill Marshall is right that we need a progressive vision of presidential power (and that need is growing, along with presidential power). And it must include a demand that the President fulfill his obligation to fully protect rights and respect the other branches, and that his lawyers advise him based on their best view of what he Constitution requires, not just what the courts will require of the President. Along these lines, several of us who worked at the Office of Legal Counsel under President Clinton are drafting principles that we believe should guide OLC's work. (We are doing this as part of an ACS issue group on presidential power, the first issue group under the new ACS "Constitution in the 21st Century" project.) The recent Bush OLC memo on interrogation/torture is one clear example of advice regarding executive obligations premised inappropriately on what the courts would require. But this mistaken perspective also infects other executive branch work; another example: a Bush Dept. of Justice report on the terribly disparate rates of incarceration for drug offenses for African Americans v. whites (inexplicable by rates of drug use)--and which of course translate also into disenfranchisement and no student loans--proclaimed the enormous disparities raised no constitutional issues of equal protection, because no judicial challenge had succeeded. We need to challenge and change that kind of thinking.

I do think it important, though, given how court-centered our constitutional culture is and how successful conservatives continue to be with charges against liberals of judicial activism, that we take care to speak with great clarity when we are describing constitutional rights and values that are not judicially enforceable. (And we should spend considerable time as well on those rights that are judicially enforceable.)

Finally, my advocacy of increased nonjudicial constitutionalism does not bring with it any desire to abandon working through the courts (to the extent increasingly hostile courts are available). Such an approach seems to me clearly wrong, and (even if it were not) also clearly unattainable, given the progressive advocacy community and the realities of constitutional litigation. To the contrary, regarding that controversy among progessives, I would urge we focus on how best to promote strong roles for all three branches, particularly with regard to protecting individual liberty and promoting equality. The one-way ratchet section 5 theory was a particular target for the Reagan-Meese Justice Department, as part of its advocacy of diminished section 5 authority. We need as part of our progressive vision to continue to develop a strong, intellectually sound and publicly persuasive alternative version that calls for continued judicial protection even as we call upon Congress and the President to do more. That seems to me the constitutionally appropriate course, as well as the most effective course--the political branches alone simply will not adequately protect progressive constitutional values, for all of the familiar reasons.

-- Dawn Johnsen

Post by Frank Michelman

Posts from Mark Tushnet and Willy Forbath prompt these questions: What makes a big legislative accomplishment a "constitutional" one (but outside of the courts), as Mark says of social security, e.g.? What, concretely, do we have in mind when we contemplate a principle's being constitutionalized without its being judicialized, as Willy urges in regard to social citizenship?
Constitutionalized social-minimum rights are to some degree appropriately judicially cognizable, Willy says, while social citizenship is not. Suppose one concurs in those judgments, as I am inclined to do, and also cottons to Willy's further judgment that a principle of market-based social citizenship deserves to be placed and kept squarely within American "constitutional vision." With adjudication unavailable as a gauge, how would we know that the latter sort of event had occurred, if it did occur? (In fact, how do we know it is not a past occurrence, currently in effect?)
So, sticking with the social-citizenship example, one question is: Practically speaking, what does it mean to think of market-based social citizenship, alongside a social minimum, gaining recognition as a constitutional principle, commitment, or value? A related question is: What sorts of steps might one think of taking to secure such a result?
As first rough cut, an answer to the first question might be: For the principle of social citizenship to be constitutionalized extrajudicially means that the politics around legislative policy choices bearing on social citizenship (including agenda-setting) are observably high-minded or deliberative by comparison to the daily run. We will know social citizenship has gained purchase as a constitutional principle when the politics surrounding pertinent legislation are characteristically constitutional, not ordinary, politics
Okay, but that apparently would be a major political-cultural shift, not likely to occur without institutional prodding or sustained without institutional support. What kinds of institutional support, then? And what kinds of organized political intervention might one consider as means of bringing them into being? Are these questions part of the think-tank agenda for progressive-minded constitutionalists?
I'll just toss out at random some possibilities that come to mind, by way of indicating the sort of discussion/investigation I'm thinking of. How about trying for a constitutional amendment declaring social citizenship to be a non-justiciable, directive principle of the Constitution? How about a constitutional amendment establishing an OMB-like executive office to monitor legislation (and legislative agendas) for social-citizenship ramifications? How about pushing for an Act of Congress to like effect, including declarations of the constitutional status of the social-citizenship principle? Or maybe the Act (or the Amendment) should establish a permanent joint congressional committee -- instead of or in addition to the executive office -- to be the monitor? Or how about pushing for congressional enactment of a superstatute, analogous to the UK's Human Rights Act except that all the monitors would be non-judicial, which contains the above-features and also a provision for fast-tracking legislative proposals from the designated social-citizenship monitors? How about an Amendment or Act re-establishing the Department of Labor as the Department of Social Citizenship? Etc., etc.
I'm not recommending any of the foregoing. Any or all if them may be inane ideas. I do mean to suggest (and I'm confident Mark and Willy both would agree) that if we're going to talk and think -- as we should -- about an extrajudicial constitution, we need to be asking ourselves the sort of question to which those ideas at least would be responsive, along with any higher-level issues, normative or tactical, they may raise in regard to our notions of constitutionalism.


-- Frank Michelman

The Progressive Constitution: An Oxymoron? -- post by Robin West

In our conversations I hope we can find the space, time, and will to at least consider the possibility that the phrase "progressive constitutionalism" is an oxymoron, for three reasons. The first is that the constitution, by structure, design, text, intent, and implementation, as well as by virtue of both the jurisprudential and institutional imperatives of adjudication, elevates anti-utilitarian and anti-communitarian rights and liberties above the happiness of the community. Consequently, the happiness of the community is a quite low priority, constitutionally speaking. "Happiness" doesn't register. At best, the constitution does it no harm, typically it denigrates it, and too often -- again, by structure, design, text, intent, implementation, and adjudicative imperatives -- it is quite aggressively sacrificed. Sometimes the sacrifice is worthy, but that worthiness should not blind us to the cost. It is not only "equality" that bears the burden of individual liberties and the libertarian politics and values behind constitutional discourse; it is also -- and I think more importantly -- happiness. Happiness, individual or collective, has no constitutional value. That alone pits constitutionalism against virtually any sensible understanding of the point of progressive politics.

Second: who and what are the individuals whose liberties and rights deserve and garner this protection, for which a people's happiness is so readily jettisoned? The individual granted these anti-utilitarian protections, by constitutionalism, is not necessarily a biological person at all -- an animal, with passions, loves, animosities, some measure of empathy and pride and reason, with, perhaps, children, parents, relatives, and friends, someone who was born not long ago and who will soon die, someone irreducibly dependent upon others for much of that path and someone who will certainly suffer along the way. Rather, the person now central to constitutionalism, for which happiness is jettisoned, is as often as not a corporation. Corporations, we now accept, are persons too (but are they "people"? How come we never see the claim that corporations are "people"?) A corporation is a person who is not an animal, who has no empathy, no children, no parents, relatives or friends, who will not die, nor suffer disease with no capacity for happiness, but with an extraordinary capacity for profit-maximization. As the corporations-who-are-persons become central rather than just peripheral or marginal to constitutionalism, the corporation's profit becomes definitionally the liberty deserving and winning protection -- with the result being that the corporation's profit, in the guise of individual liberty, becomes the constitutional value that trumps the community's happiness. The result of this migration is a re-conceptualization of the person. A person, constitutionally, is actually not someone with empathy, children, etc., these turn out to be properties of some but not all persons, not essential at all to personhood. Rather, a person, since it has to include the biological kind that are born, suffer, love, and die, and also the corporate kind, is an entity that maximizes profit. That, after all, is the attribute that biological and corporate persons share. Constitutional protections of liberty (as well as tort definitions of due care) are re-defined accordingly.

Third, constitutionalism cannot be cosmopolitan. "Cosmopolitan constitutionalism" is oxymoronic, and progressivism requires cosmopolitanism. By cosmopolitanism, I mean an ethical stance that holds the dignity and worth of all people to be equal, regardless of nationality. "We," though, define who "we" are, not by reference to our shared humanity -- the only possible path toward ethical cosmopolitanism -- but rather, by reference to our constitutional mythology: the framing, the reconstruction amendments, lochner, anti-lochner and its aftermath, civil rights, reproductive freedom, sexual rights. Our constitutional past, along with the mythic gloss, defines us. Our past differentiates us from others. Our past constitutes us. Our constitution defines us. It cannot be a worldly constitution and still be a constitution. We take our past very seriously; it is what it means for us to be who we are.

Progressivism requires: a commitment to the happiness of people. An understanding that human life is about needs and interests and loves and passions, and not about servicing fetishized fictive entities -- that the goal of a progressive politics should be, to quote Erich Fromm's lovely mid-century book (and book title) "Man for Himself" and not man for something other. And it requires not just a resistance to imperialism, but a thorough-going anti-nationalism. The Constitution is the obstacle to progressive politics, it cannot be the handmaiden.

Progressive constitutional lawyers and thinkers have responses to all of this -- I've written plenty myself -- but none of it is all that satisfying. Thus: the constitution does not necessarily mean the adjudicated constitution, and once the distinction is seen clearly, other and more progressive interpretations are revealed that do not pit individual liberty against happiness in quite such a regressive and disastrous way. That corporations are persons is an unfortunate but fixable mistake, not central to the project of constitutionalism. Through some very mysterious and alchemical process of osmosis, transformation and borrowing, our constitutional project can be synthesized not only with cosmopolitan human rights but even with constitutions and constitutionalisms elsewhere, eventually yielding a constitution that not only is not inconsistent with but deeply resonates with cosmopolitan ethical orientations. Well -- maybe but maybe not. Maybe the problem really is the constitution, and the idea of the constitution, and not adjudication, in either its institutional or jurisprudential mode; maybe corporate personhood is now irretrievably embedded in constitutionalism, and has already done the lion's share of the work, although beneath the surface, of re-definition of the entire document and our relationship to it, and maybe constitutionalism is just meaningless when divorced from a commitment to our sense of national exceptionalism, a sense that is disastrous for world populations when magnified by religiousity and imperialist power. Maybe a part of the conversation about the constitution in 2020 should conceive of the constitution as an obstacle to progressive politics, rather than one which, with the right interpreters and fixes, is actually the key to the whole project and has been all along, just never quite appreciated as such.

The only progressive alternative to this, I think, is to make good on the various promises of popular constitutionalism. We might, along those lines, concretely consider one extraordinary success story of popular constitutionalism, and that is the militia movement's and their fellow travelers' success in enshrining in the constitution a second amendment individual right to bear arms, with virtually no help from any court whatsoever. When the most liberal senator, and the democratic presidential candidate, announces repeatedly his support for second amendment individual right to bear arms, when liberal commentators urge the democratic party to not go anywhere near gun control, and when it is impossible to even renew through politics the slight gun control laws we once had, it is clear that, without a pen being lifted by any judge, there does indeed exist a second amendment right to bear arms. Obviously, you don't need courts to create these things. Progressive popular constitutionalists could perhaps study that success story and use it as a model for how it is indeed possible to constitutionalize a right, without recourse to adjudication. There is surely nothing illogical or even anti-historical in the suggestion that progressives no less than libertarians could employ constitutional law, history, and myth, in such a way as to guide politics, and even do it in a progressive direction. I'm just not at all sure the project would be worth the legitimation costs, misdirection, and distractions it would entail.

The second concrete implication, I think, of the popular constitutional project concerns our institution -- law schools. We might re-consider the extraordinary resources we pour into the project of securing top judicial clerkships for our students. Embedded in this entrenched practice are powerful meanings about the constitution, about law, about politics, and about legislation, all of them, I think, dubious. Perhaps we could talk about the possibility of at least matching those resources, and those meanings, with a commitment to the project of securing for our top students "plum" positions as one or two-year Legislative Aides to progressive senators. Perhaps progressive constitutional arguments, molded in the cauldron of popular-legal discourse, could receive a hearing and a measure of implementation, through legislation -- meaning, legislators. Of course, such a change would require and signal not just a change in law school culture, but also a transformation of the political climate: a professionalization of the process on the Hill of finding and appointing aides, and a willingness to consider those aides as providing desired constitutional and legal guidance. And it would require schools and the students we produce to think of the law maker and not just the law finder as the proper audience of constitutional (and legal) deliberation. It would require a re-orientation of norms of meritocracy, on both sides: the legislator would hire the best, not the best connected; the school would regard the constitutionalized legislative process (and product) as the prize to keep one's eye on, rather than the adjudicative process (and product). It would not only reflect but might help produce a political world in which the constitution guides and not just restrains legislation, and in which constitutional values, consequently, might be pressed toward progressive, and state-activist, rather than judge-activist, ends.
-- Robin West

A Democracy for the Twenty-First Century

Post by Yale ACS Students - New Politics Group

“I represent the democratic wing of the Democratic party!” Senator Paul Wellstone's slogan, taken up last year by Governor Howard Dean, begs the question of what it means to be democratic in the 21st century. This, to us, is the central concern of the “New Politics” strand of the Constitution in 2020 conference. Today, the three branches of the federal government, each in conservative hands, represent only 51% of the voting population according to results from the Presidential election. The people have spoken, one side has won a majority. Is this democracy? If it is, why is it so distressing to so many democrats?

If we aspire to be not just progressives, but also democrats, we must both identify and achieve what it means to create a functioning democracy.

Constitutional scholars Bruce Ackerman and Jed Rubenfeld have argued that in America, democracy should not just be the present will of the majority that constitutes “normal politics,” but a more deeply and broadly held commitment of the people over time. Is it necessary to define the precise meaning of democracy to create a democratic Constitution?

Either way, the Constitution in 2020 should create the conditions for democracy to flourish. These conditions include, fundamentally, a population that is thoroughly informed, meaningfully involved in the political process, and accurately represented. The vast democracy of the United States -- so different from the face-to-face model of ancient Athens -- relies on two crucial mechanisms: (1) voting and representation and (2) communication. The Constitution in 2020 must address both:

(1) VOTING and REPRESENTATION -- How should people be represented under the Constitution in 2020? Are current state-centered representational regimes in the Senate and Electoral College consistent with democracy? Does the two-party system promote democracy? How should voting districts be drawn to prevent entrenchment and protect the one person, one vote principle? Are today’s voting mechanisms sufficient to protect fairness and accuracy?

(2) COMMUNICATION -- The media, old and new, will play an increasingly dominant role in defining American democracy. Should new forms of media be used to promote more direct democracy, with Ross Perot-style electronic town halls? Should political candidates or interest groups rely more or less heavily on paid media advertising to communicate ideas with the people? Should the Constitution say anything about the concentration of media and political media?

These questions should not be answered in response to the current majority, but rather behind a veil of partisan ignorance. Our answers to the fundamental questions of democracy should be no different if the current position of the parties were flipped. In 2020, they may be.

-- Yale ACS Students - New Politics Group

Socialism is Dead. Long Live Social-ism: Economic Inequality and the Social Dimensions of the Constitution in 2020 -- post by Willy Forbath

FDR was right about the necessity of social rights; but social rights are dead. Constitutional democracy is impossible without some limits on social and economic inequality. Poverty, chronic joblessness, a renaissance of sweat shops, a lack of education and basic social goods: Americans thus afflicted can’t participate on anything like a roughly equal footing in the political community nor in the world of work and opportunity. The “consent of the governed” is a hoax in a system that allows such savage inequality as ours. Yet, “welfare rights,” as most Americans understand them, have been tried and rejected. What is to be done, and how, if at all, should the Constitution and (a separate question) judicially enforced constitutional law be interpreted to safeguard social rights or a social minimum in 2020?

A Social Minimum vs. Market-Based Social Citizenship vs. …

Two programmatic alternatives are on offer: a guaranteed social minimum and market-based social citizenship. Often seen as clashing, in fact, neither is practically or morally sufficient unto itself; and neither has reckoned with the global economy. A progressive programmatic outlook would offer legislation and institutional reform that enabled experimentation combining elements of each. A progressive constitutional vision would set out the commitments which this ongoing project must meet. Some of these commitments will lend themselves to a measure of judicial guardianship; others won’t (but not for the usual reasons).

Champions of a social minimum urge a renewed campaign for an unconditional basic income and social insurance, free from work requirements, moralizing or coercion. Champions of market-based social citizenship reply that the social bases of equal citizenship in America demand a right to earn a decent livelihood, to participate in the common destiny of work and responsibility. Otherwise, they say, countless recipients of a basic income would remain marginalized and stigmatized. Thus, they favor job creation, earned income tax credits or wage subsidies, along with such “enabling rights” as education, training and childcare.

Market-based social citizenship takes back from conservatives the classical liberal language of individual liberty, risk-taking, competitiveness, and personal responsibility. Rather than redistribution of income after the fact, market-based social citizenship ideas emphasize redistributing opportunities and life chances, incentives and rewards to effort, and redistributing the security necessary to take risks. This blurs the categories and jumbles the values that conventionally distinguish liberal and conservative social policy. It puts progressives on the side of economic growth, and it puts the moral basis of a progressive program on the bedrock promises of liberal capitalism: work for the willing, a decent income for those who work, opportunity to rise above a bare minimum by making full use of one’s talents and abilities. For much of American history, this was the economic heart of “equal rights”; this was so for Jacksonians and remained so for Lincoln. FDR’s “second bill of rights,” with its emphasis on education, employment and earnings, tapped into this outlook, although, of course, FDR argued that “equal rights” no longer meant equal enjoyment of the “old, sacred possessory [common law] rights” of contract and property, but of positive social rights.

There are costs and liabilities to this “social market” outlook. It assumes that some combination of private investment and public works and subsidies can produce “decent work” for all. But no one knows if that’s so in today’s economy. Its marketplace emphasis on “earning one’s livelihood” also impoverishes those who will not or cannot work as the social market measures their efforts, as well as their offspring and dependents. Neither should be acceptable in a prosperous liberal society that respects human dignity. But a progressive liberal society may enact a variation of the classic liberal “less eligibility” principle: If it affords everyone a realistic opportunity to earn their livelihoods, it may reward work, including such socially recognized contributions as child or elder care more generously, and provide only a bare social minimum for those who don’t “work” as the society defines it.

Constitutional Social Rights and Commitments

So, some kind of social minimum is demanded; but it is not morally sufficient and is probably not politically feasible without a social citizenship style guarantee of decent work and livelihoods for working Americans. At the same time, deep practical uncertainties about broadening the base of decent work distinguish this commitment from social rights to food, shelter, or healthcare. Practical uncertainty is also linked to normative complexity and open-ended cultural contention and change. In an America constituted by both kinds of guarantees, the response to homelessness, and the incapacitation and indignity it threatens, would have to be some kind of affordable home; but the response to the marginality and exclusion threatened by joblessness might rightly be more open-ended. It might consist of job creation to fill unmet public needs, or assistance to train for or move to a better labor market. It might entail turning exploitive, demeaning jobs into decent ones. But it might also include widening the distribution of decent work, combined with a compensating social wage or basic income, enabling overworked Americans to devote more time to family, community, and other things. In a progressive America so constituted, there surely would be good faith disagreement and ongoing normative as well as practical revaluation of what we mean by work and respected contributions and how to strike the balance between individual earnings and social wages.

Rights to goods like food and shelter, even education – a social minimum – are suited to some non-trivial measure of judicial oversight, even though enforcing them to the hilt is well beyond the courts’ domain. The broader social citizenship guarantee is no less essential to constituting every person as a minimally respected and competent member of the polity and society, but it is encircled by wide-open practical and normative choices. So, it’s better seen as a non-justiciable “constitutive commitment” or “directive principle.” We will lose much, morally and politically, however, if we don’t keep this broader guarantee squarely within our constitutional vision.

At the same time, judicially cognizable social rights – to the social minimum just mentioned – may provide a hook and a prod for securing the livelihoods of those at the margins, boosting their ability to participate in the polity’s conversations about its constitutive commitments – and to remind their fellow citizens that they are there.

-- Willy Forbath

Post by Goodwin Liu

As we know from the many commemorations of Brown's 50th anniversary, there remains a wide gulf between the promise of Brown and its fulfillment in public education. The reasons are complex, but they partly reflect the path of the law since Brown. Although most Americans are familiar with Brown, they are not familiar with later decisions that undermined it. In particular, I suspect most people would be surprised to know that there is no right to education guaranteed by the federal Constitution.

This year, with the help of Chris Edley and Steve Sugarman, I've launched a new project at Boalt called "Rethinking Rodriguez: Education as a Fundamental Right." It is an interdisciplinary project exploring what it would mean to make education a fundamental right today. The project is not focused on mapping a litigation strategy for overruling Rodriguez, although that might be one result. Instead, we are thinking broadly and creatively about how the concept of education as a fundamental right might be instantiated as a constitutional value or, to borrow Cass Sunstein's phrase, as one of the nation's "constitutive commitments" -- not only through court decisions but also through legislation, policy, and public discourse. (For anyone interested, I would be happy to e-mail you a concept paper on the project.)

As part of this project, two lines of research have interested me. The first is a thorough elaboration of how Rodriguez's key premises have been eroded over the past 30 years, sapping the decision of its vitality and making it ripe for reexamination. Here I am thinking of (1) the overwhelming importance of education to citizenship and economic success in 2004 (or 2020) versus 1973; (2) the decline of local control in education in the midst of centralizing reforms at the state and federal levels; and (3) the limited and uneven success of state judicial and legislative reforms, which undermines Rodriguez‚s confidence in allowing reform to proceed "one step at a time."

The second line of research involves an issue Rodriguez did not address: unequal educational opportunity between states. Ever since Brown (and even before), equality of educational opportunity has been pursued under the Fourteenth Amendment‚s command that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Yet, by various measures, educational inequality between states has historically been, and is today, more substantial than inequality within states. If education is a fundamental right, shouldn't it be a national right held in common by all children in the country? If so, then the constitutional basis for the right is perhaps not well-situated in notions of equal protection or due process. Instead, as Bruce Ackerman has suggested, it may be best situated in the constitutional guarantee of national citizenship, enforceable by Congress. Indeed, affirmative rights under the Citizenship Clause animated the earliest proposals (dating back to 1870) for federal aid to equalize educational opportunity across states.

Forging a strong link between a right to education and the guarantee of national citizenship is a potential beachhead for broader thinking on social and economic rights.  I look forward to the December meeting with a special interest in complementary efforts to invigorate the concept of national citizenship.

Goodwin Liu

A few thoughts about freedom of speech in 2020 -- post by Jack Balkin

This is a large subject, but here are a few of my initial thoughts.

To understand some of the most important free speech issues of 2020, we must begin by noting that wealth in the American economy will increasingly be devoted to knowledge production. Ownership of information distribution networks and intellectual property will increasingly be major determinants of who has power and money in American society and who does not.

By 2020 the ideological drift of the First Amendment will have proceeded apace, and the First Amendment will have emerged as a major anti-regulatory device, just as freedom of contact did in the gilded age. We have already seen intellectual property emerge as the other major set of rights defended by (and expanded on behalf of) business. However, freedom of speech and intellectual property are in tension with each other, so that new legal theories will emerge harmonizing them in ways that will serve the interests of business enterprises. Some business enterprises will focus more heavily on the defense of information distribution networks (cable, satellite, broadcast, Internet) from regulation, while others will push harder for legal protection of intellectual property rights (as well as anticircumvention rights and technological design mandates such as we find in the Digital Millenium Copyright Act and the FCC’s digital broadcast flag policy). Still other business interests will use the First Amendment to defend the accumulation and sale of personal data, arguing that privacy protections violate the First Amendment’s right to collect and distribute information.

This is not a normative claim; it is a positive prediction about how law will be harnessed to serve the interests of economic power. Whenever a new source of wealth emerges in American history, the Constitution will be employed to protect that wealth regardless of the public interest.

If this prediction is correct, what should the progressive response be? It seems to me that progressives must defend the underlying values of freedom of speech regardless of what the actual doctrines of the first amendment and intellectual property turn out to be in 2020. Those values will only partially overlap with the interests of businesses who make their profits from ownership of distribution networks and the delivery of intellectual property; indeed, in many respects they will run counter to those interests. Moreover, because free speech values and intellectual property are partially in conflict (as well as partially mutually supporting) progressives will also have to make their own way of making them live together and work together.

Again, the key point is to think in terms of free speech values, not in terms of existing doctrinal categories. Those doctrinal categories are always “fighting the last war,” that is, they are always attempting to secure paradigmatic claims from previous struggles about civil liberties, as well as reflecting the compromises and defeats that emerged from those struggles.

In the future, we should focus on several key themes:

(1) Developing and protecting the infrastructure of free expression. Freedom of speech is a product of culture, institutions, and legislative and administrative regulation as well as a product of judicial protections of negative rights. A culture of free expression requires institutions like schools and libraries that promote the dissemination of knowledge and a public sphere where discussion can occur. The infrastructure of free expression has always been partly in private and partly in public hands; in the future it is likely to be increasingly privatized. As a result, progressives should push for regulations and programs that promote education and the free distribution of knowledge and opinion.

(2) Promoting a democratic culture. To a large degree, the progressive agenda in the First Amendment was shaped by the presence of television, a unidirectional form of mass communication that is owned by a relatively small number of persons and that lacks interactivity. The public sphere of 2020 will increasingly be shaped by new media which are interactive, bidirectional, and in which huge numbers of people can participate. The goal of progressives must be to promote a democratic culture, a culture in which individuals have a fair chance to shape the forms of culture that in turn constitute them as individuals.

(3) The role of institutions. In the areas I’m discussing in this posting, free speech values will mostly be secured through the design of institutions, through legislative and administrative regulation, and through the design of technology. As a result, courts will have only a limited role in securing free speech values for new media in the next several decades. This does not mean that the Constitution and constitutional norms are not involved; it simply means that people will have to make constitutional arguments about how to protect the values of freedom of speech in the context of other institutions.

Intellectual property is a good example. It’s very difficult to create a set of judicial doctrines (like those in New York Times v. Sullivan, for example) that will adequately protect free speech interests as intellectual property law continues to metastasize. Courts can do something here, but only so much. For example, they cannot create elaborate licensing schemes for all relevant stakeholders by judicial decree, nor can they order that technologies be designed in one way rather than another; that is especially so because technological innovation proceeds regardless of what courts might want to do in the short run.

This means that much of the heavy lifting for the protection of free speech values will have to be done by technologists, legislatures, and administrative agencies. Through technological design and administrative regulation, we must continually push for rules that protect the values of interactivity and of a free and democratic culture. In technology, this means coming up with ever new ways of harnessing individual participation and communal effort. In regulation, it means not allowing large entrepreneurs either to monopolize or block participatory and communal technologies for mass communication.

To some extent, progressives will likely be outgunned by the superior lobbying efforts of business, both at the national and international levels. That does not counsel despair. Rather, it means that progressives must find alliances with a variety of different interests in the business community to help us fight our battles over technological design and regulation. No one should for a moment believe that because the issues are technical and regulatory they do not involve constitutional values. The Constitution lives (or dies) inside the technological and regulatory designs of new media of mass communication.

(4) Educational rights. In Rodriguez, the Supreme Court considered and rejected the idea that the First Amendment was the source of any important rights to educational opportunity. Many things about Rodriguez were misguided, and this was one of them. Freedom of speech means little if people do not have the opportunity to develop their minds. Freedom of speech does not begin when people open their mouths; it presupposes that people have a fair chance to obtain the knowledge and skills that enable them to participate in a democratic society. That is what a democratic culture means.

(5)Government accountability and transparency of power. The Bush Administration has demonstrated that if a government wishes to shield increasing amounts of information from the public, it can do so. In the 1970's the Supreme Court refused to extend the free speech principle to rights to know what government officials were doing. (The major exception is access to (some) judicial proceedings.). Possibly judges cannot fashion administrable rules in this area. Even if that is so, that does not mean that free speech value are not implicated. To the contrary, the more we learn about the current administration’s methods, the more we are reminded that lack of government accountability usually leads to abuses of power.

-- Jack Balkin

(cross-posted at Balkinization.)

Elections in 2020 -- post by Paul Smith

One key topic as we look forward to a revised constitutional system in 16 years is whether and how to reform the basic mechanics of our democracy. Although Americans often claim to live in the world's greatest democracy, the reality is arguably quite different. In this immediate aftermath of the election, it is natural to start with the Electoral College. As everyone knows, that institution carries with it the ever-present risk that we will again elect a President who received fewer votes than an opponent. Moreover, at least in our current world, it is difficult to conjure up a justification for preferring the candidate who won a majority of electoral votes in state-by-state winner-take-all contests, when that candidate received fewer popular votes overall. But the problems with the Electoral College go beyond this "trainwreck" issue. The Electoral College can be viewed as anti-democratic in every election because it focuses all of the communications with voters and all of the get-out-the-vote efforts on a few states.

And, at the most practical level, given the rickety nature of our systems of registering, casting and counting votes, the College is highly undesirable because it vastly increases the chances that imperfections in these systems will affect the outcome as they did in 2000, leading to litigation festivals. Enormous time and effort was devoted this year by both campaigns to preparing for the post-election legal fight. It is highly unlikely that anything like these efforts would have occurred without the Electoral College and its effect of increasing the chances of an election too close to be viewed as fair by all. But the preparations made sense, because the entire 2000 scenario came very close to repeating itself in Ohio. Finally,
we now face the prospect of state-by-state modification of the winner-take-all systems for selecting electors, as almost occurred in Colorado. This process would introduce new opportunities for partisan manipulation of the outcome, taking us further from a defensibly democratic system.

Then there is the system for selecting members of the House of Representatives and state legislatures. The use of winner-take-all single-member districts drawn by politicians has led to a quarter century of litigation over how to maintain fairness to racial minorities without going too far -- a discussion that will continue in the coming years as Congress considers renewing section 5 of the Voting Rights Act. The courts have been much less helpful in regulating the use of district lines to guarantee majority control to a particular political party, even if that party receives a minority of votes statewide. It thus seems quite likely that we will see mounting efforts to promote non-partisan methods for drawing district lines that hopefully can reduce gerrymandering, as well as increasing interest in alternative voting systems for legislatures.

Finally, there are the possibly intractable problems of trying to find the right balance between freedom of speech and regulation of the campaign finance system designed to prevent distortion of the marketplace of ideas in favor of those with money and access to the media. After 2004, with the advent of the Internet as a potent political force, the nature of that calculation may have shifted substantially. Who knows how it will look in 2020?

-- Paul Smith

Morality and Law -- post by Paul Smith

A never-ending process under our constitutional scheme is working out the boundaries of those areas in which the political branches are barred from regulating in order to impose on the dissenting minority a particular moral perspective. This gets played out under the First Amendment speech and religion clauses. And it is the heart of the substantive due process line of cases stretching from Lawrence back to Griwold and beyond. Those who argue for few constitutional limits in this area take the view that enforcing pluralism interferes, through the operation of culture if not law, with the rights of those wishing to uphold more traditional values. Progressives who believe in fencing off a realm of individual choice over matters involving family choices, sexuality, control of the body and the like, need to work to articulate better the reasons why such constitutional rules are legitimate and necessary. Just as importantly, we need to look for ways to assure conservatives that pluralism is not just a one-way ratchet, constantly pushing their children toward the values of secular elites. If we do not, the culture wars will go on, and the Constitution in 2020 may end up being much less protective of rights of personal privacy than we hope and imagine.

-- Paul Smith

Crime and the Constitution of Community Security in 2020 -- post by Jonathan Simon

Few developments have had as large an effect on the legal status of Americans over the last quarter century, then the emergence of crime as the dominant domestic policy imperative and the punitive policies which have placed more than three percent of adult residents of the United States, more than two million of them in confinement. These Americans, in varying degree, have lost their rights to privacy, suffrage, and equal access to markets for housing, jobs, and education.

When we look at the populations most effected by this revolution, especially African Americans, the consequences are shocking (even if well known). With nearly 10 percent of African American men in prison or jail on any given day, and more than half of them bound to experience a period of incarceration during their lives, the criminal justice system has become a dominant governmental institution in inner city black communities. The result according to some criminologists is a growing crisis of informal social control as the adult elements necessary to form viable economic and child rearing solidarities within the community are transported to prison. In real respects this quest for security through crime control has reversed the gains of the civil rights era and created a new form of racialized domination less attractive in many respects than the mid-20th century versions of Northern Ghettos and Southern Jim Crow.

During a period that witnessed the “end of the era of big government”, the war against crime led to massive growth in the penal sector of government (and what is a prison if not big government), one might add at an enormous costs to tax payers. At the same time, fear of crime has led many in the white middle class to create a gated society in the sprawling post suburban counties that are themselves socially dysfunctional and generative of more fear (once people have distanced themselves physically from public housing and urban public schools they can direct their fear at opposing bicycle paths and parks which might attract strangers). All of these crime related trends have been intensified and reinscribed by the appearance of terrorism.

Most of this happened without an equally dramatic change in the judicial interpretation of the Constitution. The efforts of the Burger and Rehnquist Courts to weaken the Warren Court’s restrictions on law enforcement may have contributed marginally but most analyses suggest that arrest rates have changed only modestly. Recent efforts to confront penal severity with the proportionality principal of the 8th Amendment have failed but even the dissenters would never have applied that principal to the sentences under which all but a tiny portion of the two million incarcerated Americans. The Warren Court itself backed off quickly from any real attempt to limit the criminalizing or punishing capacity of state governments. (It remains unclear how committed Chief Justice Warren, former District Attorney of Alameda County, former Attorney General of California and son of a murder victim was to significant limitations on crime control).

With rare exceptions, state constitutions have also been silent witnesses to these developments and have often (especially where ballot initiatives makes populist fears readily translatable into constitution text) been amended to voice punitive demands (like California’s three strikes law). In short, America is governed through crime by way of powers readily available under almost any conventional interpretation of the Constitution.

Yet if the conservative constitutional revolution of the last twenty-five years is not the cause of these ills, the Constitution in 2020 could be playing a more significant role in checking the growth of these trends and helping to assimilate the troubled forms of political subjectivity produced by them. That becomes clear once we acknowledge that in sum these changes have produced a real threat to the operation democratic self governance or the republican form of government which the Constitution promises.

Federal courts might play a role (although that’s hard to believe after Red Tuesday). There should be remedies in the 13th and 14th Amendments to protect the descendants of the freed slaves from their subjection to a distinct and overtly racist mode of governance.

We may also look to state supreme courts (like the much maligned Florida Supreme Court which has emerged as the only institution in that state willing to confront the most grotesque forms of punitive politics including the execution of the innocent). Some of them have preserved a form of substantive due process that might be used to protect a sphere of liberty from the encroachment new criminal laws.

More than anything perhaps, we need strategies that will impose political costs on the ever tempting logic of solving social problems by placing more of the population in prison. Toward that end, consider the following no doubt unachievable constitutional amendment.

•Representatives shall be apportioned among the several States according to their respective number of persons in each State, except that the basis for representation therein shall be reduced in the proportion which the number of persons incarcerated for sentences of one year or more in prison, jails, or juvenile detention facilities, bear to the whole number of persons.


-- Jonathan Simon

The New Separation of Powers -- post by Bill Marshall

The presidency has clearly become, as Marty Flaherty writes, the most dangerous branch. Part of this is the result of the ambitions and agendas of those who have held the office. But presidential power will continue to expand regardless of personality.

The reasons for this include: 1) Executive branch control of information. Information is power and because of the practical realities in gathering and analysis, information will inevitably continue to concentrate in the Executive. 2) Media coverage. The president’s image and office are the focal point of media attention. This affords the president with unparalleled power to set the news agenda, demand public attention, and generate political support. The 24 hour news cycle, moreover, gives little opportunity for effective response. 3) Technology and weaponry. Presidential power has increased because of the sheer might of the technological tools the Executive branch now commands. These tools, obviously, can not only be directed externally but can also pose unprecedented threats to individual rights and liberties. 4) Exigency. The increasing need for the president to act quickly in response to exigent circumstances also frees the president to act unilaterally without the participation of Congress and the courts. 5) Breakdown of the old separation of powers model. The era of divided government may have come to an end. Meanwhile, members of Congress may now realistically believe that their political futures rest more with the political successes (or failures) of the president than with protecting their own institutional prerogatives.

All of these factors raise the possibility that the traditional checks against the excesses of presidential power may no longer be adequate (if they ever were). How should constitutional law respond? What is the progressive vision of presidential power?

-- Bill Marshall

Religious Liberty in 2020 -- post by Cass Sunstein

Especially in the aftermath of the election, it might make sense to devote some sustained thought to the nature of religious liberty in 2020. We can distinguish among a number of positions. The religious right wants a weak establishment clause and a strong free exercise clause. Many contemporary liberals want a strong establishment clause and a strong free exercise clause. Less well-represented are those Thayerians who want a weak establishment clause and a weak free exercise clause and those rare souls who want a strong establishment clause and a weak free exercise clause. -- We might also distinguish between the formal law of religious liberty and the culture of religious liberty. Eg, Smith might well make sense if we emphasize the institutional limits of the judiciary in doing what Sherbert sought to do; but the Religious Freedom Restoration Act might seem a legitimate democratic effort to restore the Sherbert conception of rights. Right now, our law of religious liberty seems much better than our culture on that count. -- I think that constitutional theorists have not paid nearly enough attention to the coming cultural conflict between (roughly) Rawlsian political liberals, who seek a strong establishment clause, and those who believe one of the following things: ours is a Christian nation; there's a lot of innocuous, ceremonial deism out there, which should certainly be permitted (possibly including school prayer); the government must treat religion on the same terms as nonreligion, meaning, e.g., that vouchers are constitutionally required. -- I'm not sure what the right view is, exactly, but identifying it seems extremely important, more so, maybe, than most constitutional scholars (emphatically including yours truly) have seen to date.

-- Cass Sunstein

Post by Judith Resnik

If one thinks of the pre Civil War Constitution as Constitution I, and the post Civil War Constitution as Constitution II, and then thinks of the reformation of the Commerce Clause and the Bill of Rights in the 20th century as Constitution III, we can turn to the questions of whether a) Constitution III continues to exists and b) suffices.

Constitution III is obviously wobbling and, because I believe that gender equality, class equality, and the international human rights movement are central, Constitution IV is needed -- to revisit both the 14/19th amendments and the general welfare clauses so as to take on the deep inequalities of the contemporary social order inside the United States, to reconceive the meaning of equality, and to take seriously the possibilities that could derive from the use of the term "person" rather than "citizenship" in the 14th amendment. Further, such a project has to revisit the idea of government both in and outside of the United States to welcome less singularity of authority and affiliation.

How such constitutional innovation can come about ought to engage us. I suggest focusing not only on the federal courts and legislature but also (internally) on the role played by various actors in states -- from state high courts (making constitutional meaning, incorporating non US law in their judgments etc.) to state legislatures (e.g. California's new paid family leave act) and Executive officials, including state attorneys general. Externally, we need to focus on the relevance of off-shore law making. I would retell the creation and fabrication of Constitution III as not only a product of US innovation at the national level but as deeply influenced by movements "from abroad" and from state-based activities. I would avoid a presumption (linked to the reforms in the 1960s) that federal legislative and judicial change necessarily has durability -- independent of its inspiration from or its take-up at the local level.

Hence, I think we who seek a progressive set of legal innovations need to engage local lawmakers and make more visible and prominent their innovations. One such example is the adoption by the City of San Francisco of the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) as "local law," with implementing projects including asking about how public works, parks, employment, and transportation policies look different when questions of women's equality are at the fore. Other examples include the work in Massachusetts against purchasing products produced through unfair labor/forced labor, and California's interest in regulating insurance companies that still had money from Holocaust victims. Co-venturing court systems (state and federal judges in Alaska in the Exxon Valdez case) and co-venturing states (through regulatory regimes and compacts) are other illustrations.

The goal would be to develop a tolerance for multiple levels of lawmaking, overlapping legal regimes, and multiply-affiliated individuals. The questions would include how to shape national constitutional doctrines of reciprocity and redundancy that could embrace state-based innovations without hobbling national activity. This approach might also help to wean the discussion at the national level from the question of either courts OR the legislature to the acceptance of courts AND the legislature, as well as executive action. These proposals in turn bring "home" some of the complaints about what "went wrong," for a good deal of legal scholarship and teaching tends to cabin and channel discussion through categories that emerged between the 1930s and the 1970s. Examples include a focus on "criminal procedure" that breaks off its relationship to equality and racism, topics located more often "constitutional law courses." (ie. McKleskey needs to be taught with Brown).

I look forward to the conversation.
Judith Resnik

Post by Rachel F. Moran

Here are some preliminary thoughts for the meeting that may be relevant to the transformative perspective without undermining the dignity of legislation. (In fact, a truly inclusive society has the potential to enhance the legitimacy of legislation considerably.) Given my particular expertise, I am especially interested in revisiting the constitutional discourse about equality that arose out of the Court’s landmark decision in Brown v. Board of Education. This area is particularly ripe for reexamination because of the changing demographics of America’s population and the new challenges posed by demands for security and order after September 11th. Because Brown followed failed efforts to infuse federal citizenship with real meaning, the rhetoric of civil rights and the privileges of citizenship have never been fully integrated. With Asian Americans and Latinos transforming the racial and ethnic landscape, the meaning and significance of race have grown increasingly contested, and concepts of citizenship and personhood have become increasingly critical sites for understanding incorporation and belonging in the United States. To date, much of the scholarly commentary has emphasized the potential conflicts that will arise between native-born racial and ethnic minorities on the one hand and newly arrived immigrant populations on the other. Yet, it strikes me that concerns about racial profiling, racialization of Arab Americans after September 11th, and heightened security measures at the U.S.-Mexico border all demonstrate opportunities to integrate equality claims based on race or ethnicity with dignitary claims based on personhood, regardless of race or citizenship status.

Another legacy of Brown is the commonplace assumption that liberty and equality interests work at cross-purposes. This widely cited truism reflects the conflicts that arose during school desegregation, when Whites asserted that their associational rights under the First Amendment were violated in the service of advancing Blacks’ equality claims under the Fourteenth. The result has been an artificial divide between civil rights and civil liberties, one that obscures the ways in which these two sets of protections can be mutually reinforcing. The surest mark of subordination is the deprivation of basic liberties (as slavery itself demonstrates), and some of the most successful civil rights cases interweave equality and liberty arguments to good and lasting effect. Brown itself originally looked like such a decision with its strong endorsement of educational interests as well as equal treatment, but the nascent notion of a right to education eventually withered away, perhaps ultimately to the detriment of the push for Black equality. Other cases like Loving and Bakke connected equality claims to First Amendment interests in association and expression, and they have endured–the former largely without controversy and the latter despite the relentless controversy surrounding affirmative action. Plyler v. Doe is a largely underappreciated decision that adopts a strategy of linking equality claims to the capacity to flourish and be free. Plyler succeeds against the odds in gaining constitutional protection for undocumented children, even when alienage is not a suspect class and education is not a fundamental right. Plyler also offers up the intriguing possibility that liberty interests that reflect minimum dignitary claims of personhood can be a back door into constitutional scrutiny of a growing class divide that leaves some trapped in the limited life chances of poverty.

Finally, because of my interest in schools, I am sensitive to questions of local government and federalism. Traditionally, the devolution of local control has been seen as part of a conservative agenda as captured in the imagery of the new federalism. Yet, today America’s large global cities reflect a cosmopolitan ethic often not shared in the rest of the country. On recent occasions, urban populations have engaged in acts of insurrection to demonstrate the gap in values. The most salient recent example may be the effort to allow same-sex couples to marry. Yet, there are other instances of great significance, not least of which are initiatives to change the electoral process in fundamental ways to allow non-citizens to vote and to end winner-take-all, majority voting rules that fail to reflect intensity of preference. Some of the most progressive lawmaking may now be happening at the municipal level, and this emerging form of “urban citizenship” has the potential to turn the new federalism on its head.

-- Rachel F. Moran

Post by Robert Post

There are many different ways to offer a provocation for a conference designed to address what our Constitution ought to be like in the year 2020. On can, like Bruce, offer specific constitutional agendas. Or one can, like Mark, offer methodological recommendations. My own tack will be different. I believe that in order to forge a coherent progressive view of the Constitution in the year 2020 the left must resolve certain deep tensions within its own outlook. I view this conference an occasion for the left to begin to get its own house in order before facing the arduous task of establishing national constitutional commitments. I describe two issues which presently divide the left, as to which the left must reach some internal resolution before it can plausible hope to advance a constitutional agenda for 2020:

1. The Place of America in the World. Perhaps the most important and inevitable secular trend of the 21st Century is that America will inescapably become more integrated within the world community. For purposes of this Conference, it is important to recognize that the left is sharply divided on its attitude toward this trend. There is a segment on the left that embraces internationalization; that applauds the creation of international human rights and the establishment of free trade; that seeks to open borders; and that struggles to enhance the rights of legal and illegal aliens. But there is also a substantial segment on the left that views this trend toward internationalization as a loss of domestic democratic self-determination; that riots in the streets of Seattle because WTO and NAFTA are seen as undermining domestic progressive legislation; that is troubled by the efforts of multi-national corporations to ascend to the international level to use international treaties (like IP agreements) to regulate the domestic politics of particular countries; and that regards unfettered immigration and unregulated illegal alienage as incompatible with generous domestic social-welfare benefits. The left, in short, is deeply divided on this fundamental secular trend, and this conference is a good moment to attempt to bring these competing perspectives into dialogue with each other, in the hope of creating a unified progressive constitutional position.

2. The Framing of Domestic Social Issues. Progressive domestic politics is about convincing the electorate that our vision of the good life is desirable and practicable. Republicans have recently been winning this battle by stressing traditional values of individualism and self-reliance. The traditional progressive position has been that constitutional rights ought to be used to ensure that each citizen has access to the good life that (by hypothesis) we all would otherwise enjoy. We have accordingly conceived constitutional politics in the registers of discrimination and need. Conservatives have in part discredited the left position by tarring it with the taint of race, and by making it appear (as for example the ADA has been made to appear) as incompatible with the good life of sturdy individualism. The left therefore faces a fork in the road. We can continue to orient our constitutional politics around the project of constructing ever-expanding circles of inclusion, as we attempt to ameliorate the exclusion of groups that should be entitled to enjoy equal access to whatever social good is at issue. Or we can attempt a new constitutional project, which is to articulate an ideal of the good life that can defeat the right’s vision of sturdy individualism, and that can simultaneously eliminate present causes of structural exclusion. So, for example, the left can continue to stress workplace discrimination and inequality, or it can attempt to set forth a positive vision of the place that work ought to occupy in the life of all citizens. The distinction between the two approaches can be seen in the context of gender. We can either continue to stress the enforcement of antidiscrimination models or we can turn to models like the Family and Medical Leave Act, which offers a picture of the good life (relating work and family) that can appeal to all and that also promises to ameliorate structural causes of gendered exclusion. A similar choice faces the left in the context of many domestic issues. Education, for example, can be approached along an anti-discrimination model, reviving Rodriguez, or it can be approached along the lines of a positive vision of the minimum entitlements owed to every child. Voting can be approached as an matter of reducing the exclusion of certain groups, or instead as a positive entitlement of citizenship, which might include voting on weekends, deliberation day, state support of elections, state transportation to the polls, and so forth. The debate I am suggesting touches on Mark Tushnet’s point about understanding constitutional rights as lodged in the legislature as well as in courts. But more fundamentally it asks the left to face the question of the extent to which it wishes to offer positive affirmations of social goods that do not fundamentally turn on negative issues of exclusion and need. The question is whether left constitutionalism will continue to imagine itself as the especial conservator of subordinated and oppressed groups, or whether it will instead imagine itself as the spokesman for the entire American public (in the manner of FDR).

There are many other areas in which the left needs to forge a common and effective position. The left has yet to establish a stable attitude toward markets, for example, an instability that has had particularly disastrous effects for our ability to articulate a convincing plan for health care. The left has yet to achieve a stable attitude toward multiculturalism, pluralism, or religion. It has yet to decide whether it is a movement of the “good” or of the “right” (to use Rawlsian terms). It has yet to establish a stable position on federalism, regarding federal preemption as good in some contexts, like antidiscrimination, but as bad in others, like the regulation of tobacco or tort reform. There are, in short, many other such debates we could have at this conference, but my time is up.

-- Robert Post

Post by Mark Tushnet

My contribution to the conversation (about 250 words, the thrust of
which will be familiar to some/many of you):

For me, the Constitution in 2020 will be one that recognizes what
Jeremy Waldron calls the dignity of legislation. In my view, for too
long progressives have taken the courts as the focal point of their
constitutional thinking, without recognizing the extent to which the
one Court they truly admired - the Warren Court - was successful
precisely because, and to the extent that, it was collaborating with
the political branches in advancing a common program.

Recognizing the dignity of legislation would allow constitutionalists
to understand how major progressive legislative accomplishments of
the modern era - from Social Security to Medicare to the Americans
with Disabilities Act (among others) - are constitutional
accomplishments as well. They are constitutional accomplishments -
indeed, I think more important constitutional accomplishments than,
for example, Miranda v. Arizona - because they advance the central
commitments of the U.S. constitutional order, to liberty, equality,
and human dignity.

This perspective does not generate strong programmatic commitments,
but rather an orientation to take in the process of working out the
priorities of constitutional law broadly conceived.

(And now for some grumpiness: I doubt that constitutionalists can
recover a sense of the dignity of legislation if it is apparent that,
should they be unable to achieve their programmatic goals through
legislation, they will be perfectly happy to achieve them through
litigation. Or, put another way, the Constitution in 2020 will be
one within whose confines progressives will actually fail to
accomplish some of what is most important to some of us.)

--Mark Tushnet

Constitution in 2020 - Notes by Bruce Ackerman

This is the first post in a discussion of the agenda for our conference. (Additional updates will appear on both the YLS ACS blog and the Constitution in 2020 conference blog.)

The Constitution 2020
Notes by Bruce Ackerman

Here are three perspectives on the problem: the pathological, the evolutionary, and the transformative.

I. The pathological perspective (with a tip of the hat to Vince Blasi):

What are the worst ways the existing Constitution can misfire and how to fix them?

Rank in order of anxiety:
1. Three or four terrorist attacks in the next twenty years that make Sept 11th look like a minor event. Cycles of political panic, PATRIOT demagogery, and the politics of fear leading to a dramatic destruction of liberty. It is utopian to rely mainly on courts alone to protect us. We should seriously consider a framework statute along the lines I propose in "The Emergency Constitution, 113 Yale L J 1029 (2004).
2. Fix the War Powers Act.

3. Reform the process of presidential nomination and selection.
Note that all three items in this box require framework statutes/constitutional amendments, and don't depend on judges as the principal change agents.

II. The evolutionary perspective:

Changes within the reasonable course of judicial creativity, with luck and a few good appointments. Rank in order of importance.
1. Root out the federalism decisions since Lopez, and return to the status quo, circa 1994. Root all of them out, not some of them.
2. Reassert the continuing relevance of Brown for racial and economic integration of elementary and secondary schools. This should be the focus of movement on affirmative action. Content ourselves with a holding action on affirmative action in higher education (and employment?)
3. Control the likely techno-erosion of privacy.

III. The transformative perspective:
Requires the creation of an energized progressive political coalition, capable of sustaining power in Congress and the Presidency for substantial periods, and engaging in dynamic interaction with a progressive majority on the Supreme Court (as in the 1960s).
1. The lost promise of the Citizenship Clauses of the Fourteenth Amendment. The privilege or immunity clause was, of course, originally understood as providing the central thrust of Section one. Due process and Equal Protection emerged to fill part of the gap left by the evisceration of the Citizenship Clauses in the Slaughterhouse Cases. It's time to overrule Slaughterhouse and make the Clause the basis for fundamental positive rights of citizenship. See my mock opinion in Jack Balkin ed., What Brown v. Board of Education Should have Said 100-23 (2001).
My particular priorities: positive rights of political participation: see Ackerman and Ayres, Voting with Dollars (2002); and positive rights of economic citizenship: see Ackerman and Alstott, The Stakeholder Society (1999).
I leave for the December meeting a discussion of the possible relationships between judicial elaboration of the constitutional foundation of such rights by the courts, and their fiscal and legislative elaboration by the Congress.
2. Hoping to hear from you about candidates for 2 and 3 on the transformative agenda.

Welcome

This blog is a discussion space for the Constitution in 2020 Conference, which the Yale chapter of the American Constitution Society is sponsoring in April 2005.

Participants in the conference will be able to post to this blog in the months leading up to the conference; these posts will also appear on the Yale ACS blog.