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
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
posted by Joseph Fishkin at 10:17 AM
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