Monday, November 29, 2004

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

Sunday, November 28, 2004

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

Friday, November 26, 2004

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

Thursday, November 25, 2004

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

Tuesday, November 23, 2004

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

Thursday, November 18, 2004

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

Wednesday, November 17, 2004

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.)

Tuesday, November 09, 2004

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

Monday, November 08, 2004

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

Sunday, November 07, 2004

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

Thursday, November 04, 2004

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

Monday, November 01, 2004

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