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