Sunday, October 31, 2004

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

Tuesday, October 12, 2004

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

Monday, October 11, 2004

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.