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.