Monday, December 27, 2004

Post by John Podesta

I’d like to express my appreciation to the organizers—both the faculty and the students—who got this important project off to such a fine start with the gathering in New Haven earlier this month. I look forward to continuing the dialogue as we seek to lay the foundations for a better nation and a Constitution that reflects progressive values.

Open government is essential to democracy.  The current administration’s penchant for secrecy, illustrated perhaps most famously by Vice President Cheney’s refusal to disclose the most basic information about whom he consulted with in developing the nation’s energy policies, has brought renewed vigor to progressives’ fundamental commitment to transparency and accountability in government.

But in what is that impulse grounded? The Constitution does not explicitly speak of a “right to information” or “open government.” The legal authority we have to demand information from government is rooted in statute (e.g., FOIA, FACA). While these laws play a valuable role in peeling back the curtain on government secrecy, the public’s right to know would be considerably strengthened if such a right could be constitutionalized.

One place to look for support of such an argument is Article I, Section 1, which grants to Congress “[a]ll legislative [p]owers” enumerated in Article I. Underlying that statement, and indeed all of Article I, is an assumption that Congress is in a position to exercise its legislative mandate. Few people may realize how that very assumption may be faulty.  Congress has, arguably, never been less functional and less able to legislate. And an important element of this institutional paralysis comes from the lack of basic information that is shared by the executive branch and between the majority and minority parties, casting doubt on the ability of Congress to address matters of public policy, and perhaps more importantly, represent the public it purportedly serves.

The minority party in Congress often does not even see the text of major bills until a few hours before voting on them—leaving no time for them to be understood, much less read. The appropriations process in particular has become so disfigured that bipartisan outcry is growing. Congress now routinely fails to pass the bills, required by the Constitution, to fund the government, instead waiting until, almost literally, the last minute to issue an enormous omnibus bill that few members—and certainly no members of the minority—have time to digest. Hearings are scheduled on short notice in order to deprive minority members of the time necessary to prepare and gather witnesses. Critical reports, memoranda, and testimony are not shared. A Democratic leadership aide said last year, "From their perspective, they don't need to tell us anything. We're fundamentally not part of the process."

This might be acceptable in some parliamentary systems. But in our system, particularly with such a closely divided Congress, the withholding of information compromises the ability of the institution to do its job.  Moreover, it deprives nearly half the people of the informed representation to which they are entitled.

The Supreme Court has recognized that Congress has the right to obtain information from the executive branch—a responsibility that is normally exercised by the majority party. But in a situation like the one we have today, where the majority has abandoned much of its oversight role, the question is: can a constitutional argument be framed that the minority party has a right to information in order to fulfill Congress’ obligation to oversee the executive branch?

-- John Podesta

Thursday, December 23, 2004

The past is not prologue, but we need more history any way -- post by Jonathan Simon

First, I want to express my gratitude to the American Constitution Society, Yale Law School, and all those who participated in the recent New Haven discussions. You lifted my spirits and my vision from the low horizon they have been fixed on since Red Tuesday. What follows are a few lines of thought coming out of my notes from December and looking toward April.

The Need for Constitutional Discourse

I came into New Haven a skeptic to this degree. From my peculiar obsessions, crime, punishment, security, insurance and risk management, constitutional law has been a fairly marginal shaper of astounding developments over the last quarter century (and a similar case could be made I suspect for labor/employment, welfare, corporate governance, family, immigration, urban development). My own strong interest in constitutional law during my student and early teaching days during the 1980s has in fact waned (beyond criminal procedure, the autonomy of which I'd be happy to defend on some other occasion, but even its effects are marginal in my view). I've even had heretical thoughts (at least they would be in New Haven) as to whether we can afford to have so many of our best and brightest students drawn to constitutional subjects.

But what if in fact much of this apparent irrelevance of constitutional law and discourse is an artifact of living in a legal culture still largely shaped by the New Deal, both in constitutional terms directly (as Bruce, Willy, and many others present have shown) and in the broader terrain of policy framework and institution setting legislation (whether one wants to call that constitutional or not). The anchors of that New Deal legal culture, are now facing for the first time in more than half a century, a set of ideologically determined and unified opponents who happen to control the White House, Congress, and with a few key appointments over the next few years, the Supreme Court. Social security, modern eminent domain, unions, environmental protection, are only a few of the things that could move from the category of the waning to that of the extinct in a few short years ahead. Moreover these opponents see their objectives in terms of constitutional fidelity.

The international framework of security and human rights is also a New Deal legacy in important respects. No one needs reminding this December that the same opponents are even more aggressively attacking the legal and institutional foundations of American participation in that.

The Constitution and New Deal Governance

The fate of the constitutional underpinnings of New Deal governance ran through many of the strands of the discussions I heard in December, but I would be really interested in hearing an even more explicit discussion in April of what this New Deal edifice means to us now. As much as we might want to view ourselves as the opposition, the New Deal legal culture remains very much alive and remarkably significant to the lives of lawyers and everyone else. No doubt reflection on this will bring us to some deep disagreements within our ranks. Should progressive constitutional discourse defend the mid-20th century governmental rationalities at work in the New Deal, or seek to recast them through more neo liberal approaches?

I think we would benefit from letting that argument happen even more explicitly. In any event we have little choice as to whether to take a stand on this. Our opponents are getting ready to put before Americans a case for radically changing all or much of this. Moreover, they are going to do so in explicitly constitutional terms. Against an empirical reality that is far from conforming to most of their suppositions, conservatives are likely to rely heavily on a sense of constitutional necessity to convince Americans of the need for doctrinal change at any cost to their personal security. I wouldn't assume that Americans will just reject such an idealistic call. In any event the chances of conservative constitutionalism prevailing on these fronts is much stronger if there is no strong narrative on the other side expressing why constitutional fidelity in no way requires the abandonment of the New Deal; one which calls on the current generation of Americans to reimagine how to act politically and collectively to enhance their freedom and security in the 21st century.

So maybe we do need the best and the brightest working on this (otherwise you might be reading more screeds like this).

The past is not prologue, but we need more history any way

It is not our 1964 or 1980, but the discussion that was Lawrence Lessig began by throwing those numbers out was very interesting. Looking seriously at those years as well as 1936, 1867, 1919, 1945, 1964, 1984, 1994, and many more is crucial. I would love to see even more historians to the April conference and hear more from the ones that were there in December. The New Deal is again particularly important. The coming struggle is not about the Reconstruction Amendments, although a renewed understanding of the New Deal might make possible an enriched legacy for those amendments. The purpose of having more history would be to place the debate about New Deal governmental rationalities into an expanded historical understanding of the intellectual and political resources of the New Deal constitutional moment and its present legacies. We know the war for defining constitutional fidelity will be in large parts a historical one but if we are going to win it, that history cannot be solely one of constitutional framers (even New Deal ones). Indeed, it needs to go well beyond doctrine
and include a rich discussion of New Deal legal culture and the institutions, practices and lifestyles it has brought into being, including administrative agencies, unions, the sexual revolution, international legal entities, suburbs, public schools, race, prisons, etc.

Resistance, practices, and institutions

What do Americans (say for now that means residents of the US), especially those constituencies that we can already count in the progressive camp, want, and what are they willing to fight for? Conservatives prevailed in the 1980s and 1990s by defining themselves as interested in fighting for what they claimed mattered to people, their homes, neighborhoods, personal wealth. I've been asking myself the question I heard Judith Resnik asking a number of people at the December discussion, something like "what goods and services can progressive constitutionalism deliver to people in the way the New Deal did?" We need this knowledge not just because constitutional analysis is always outcome driven, but to even know what questions to be asking the text. Here is my wishlist.

  • Equal dignity for minorities : Bush had to go on TV to signal he was comfortable with gay civil unions for a reason.

  • Higher education and the economic opportunity that comes with it:Americans pay an enormous price (in money and anxiety) to put their kids through colleges and graduate programs. At the same time every college town in the country is virtually a guaranteed blue spot on the electoral maps (even in the deep South).

  • Personal sexual freedom:Kinsey was right that an enormous gap exists between what Americans claim to believe about sexual virtue and what they practice. Being on the side of sexual freedom for all and access to the institutions necessary to provide it in safe, equal, and intelligent ways, e.g., sex education, contraception, abortion, is ultimately a majority position in America. This is what the right to privacy meant before the response to Roe v. Wade shifted it from liberty to equality.

  • A secure retirement: A return of primary responsibility to provide income and succor for the elderly to the tender mercies and over-stretched wallets and lives of their adult children and community charities is something that most Americans would truly dread (at least in part because of its impact on the previous two). The decline of employer based pensions (a part of the private law side of the New Deal) and the attack on social security raise life style questions that conservatives cannot afford to try and answer.

  • Diverse cities and cosmopolitan suburbs: For a variety of reasons (the valorization of homeownership and fear of crime high among them) many Americans feel they must live in exurbia but they know it's a bad deal. I've never seen people spend their vacations visiting gated suburbs. New Orleans, San Francisco, New York, and Miami tug on people's hearts (even in the Red states) for a reason. Minorities of all sorts help produce the urban public goods that draw people to the most successful cities. New Deal governance, at least post-World War II, did a pretty bad job renewing and reinvesting in cities. Federal urban renewal and development projects, plus the massively harmful war on drugs largely waged in the cities, generally have a well earned reputation for being both corrupt and dysfunctional. Kelo v. City of New London, will place the future of condemnation for large scale urban renewal projects involving private developers. Do progressives need to defend the ability of urban renewal agencies to condemn private property so that big box stores and big box plants can be lured to urban areas, or is it better to fight off the retailing methods of the exurbs with living wage laws (while leaving it to the market to make big box stores too expensive)? Is this an area for possible synergy with conservative ideals like federalism and property rights? The main problem with federalism from the perspective of America's blue cities and suburbs is that state government has often been even more hostile to our interests then the federal government is currently.

    Wishing you a Blues Christmas, Hannukah, Kwanza, and a New Year of Peace (somehow)!

    -- Jonathan Simon
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    Sunday, December 19, 2004

    Post by Richard Thompson Ford

    One meta-question hangs over my thoughts about the Constitution in 2020. To what extent must our deliberations consider popular reception as well as the potential for success in the courts and principled legal correctness? While we should not turn to brazen pandering or empty salesmanship, principled positions that few courts will accept and even judicial victories that do not eventually garner significant popular support are not durable successes. And we should worry about unpopular judicial victories as a matter of principle as well as for practical reasons. This isn’t to say that we should give up on the courts, but it is to say that we shouldn’t give up on the people either.

    So I take it as given that our constitutional program requires a popular story that gives it meaning and legitimacy. My very strong belief is that such a popular narrative must unify the political community (thus could be a locality or state as well as the nation, depending on the scope of the legal intervention); it must describe whatever legal intervention we wish to advance as something that enriches us as whole. Of course this doesn’t mean that it must directly benefit everyone.

    But it does mean that whenever possible our legal interventions should not be premised on strong presumptions of group difference and should not seek special privileges for some groups that others would not enjoy. Some of this is a question of framing. A characteristic of the “new left” has been a romance with identity politics. This romance has matured into an obsessive and dysfunctional relationship, such that today it often seems that progressives deliberately frame political questions in terms of identity politics, even when substantially similar ends could be achieved by framing the question in more universal terms. I suspect that only some of the inputs for such framing is tactical—much I suspect is an inadequately theorized commitment to a “politics of recognition.”

    An obvious example involves anti sodomy laws. For years the debate was framed in terms of “gay rights.” Now, post Lawrence it seems that a more universalistic framing was the better approach.

    An obvious counter example is affirmative action. But even here, where group based framing seems unavoidable, we can seek to down play presumptions of intrinsic group difference and emphasize the universal aspects of the intervention. Affirmative action, it seems to me, is one of many reasonable policies designed to address the unique social inequities produced by historically institutionalized practices of formal discrimination. We can easily frame the policy outcome as one that serves the national interest by helping to wipe clean the moral stain of formal discrimination and to allow institutions to correct for systematic bias that resulting from the legacy such discrimination. This rationale (admittedly the “societal discrimination” rationale rejected by Justice Powell in Bakke) is a useful supplement to “diversity” O’Connor’s opinion in Grutter is a nice example: in the course of an opinion advancing the diversity rationale, she manages to (needs to?) smuggle in the societal discrimination rationale as well: the Grutter opinion notes in passing that “By virtue of our Nation’s Struggle with racial inequality, [minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.” There’s something telling O’Connor’s emphasis on “our nation’s struggle” with racial discrimination. We’re in the struggle together—its not the struggle of racial minorities or of public universities—its our nation’s struggle. I think we could take something useful away from that inclusive framing.

    I take seriously Chuck Sabel’s point that we should look carefully at successes under state constitutions which proceed from “local” cases to require concrete egalitarian redistributions in specific institutional contexts in areas such as school finance reform. We should look to ways to popularize this dynamic so to speak—to see whether it can travel from the judicial to the popular arena and think more about the types of socio-political commitments it might produce. We’d be fools not to take these examples seriously, but I’m not convinced that such examples can substitute for ideological or narrative resources that promote a since of political solidarity.

    One thing Sabel’s examples suggest is that it’s possible that we should begin looking for political community at the local or state level and work out, rather than begin at the national level. If so, we may need to reconsider the conventional left-liberal aversion to decentralization of power (I take this to be part of David Barron’s point in the Liberties and Communities session). But that’s for another blog.

    There’s the wind up: here’s the pitch. I suspect that the best—perhaps the only—way to frame a broad constitutional vision that will both appeal to a majority of Americans and satisfy traditional left-liberal objectives (egalitarian redistribution of wealth—either in kind or through socially progressive legislation and policy, more humane workplace relationships…) will be to tell a story that emphasizes what joins us as political community, a narrative of the polis as an imagined community. It’s a truism, but not less true for it, that nations with strong social safety nets (the caricature of European social democracy) tend to have a strong sense of social commonality. This doesn’t mean, as is often suggested, that ethnic or cultural homogeneity is a prerequisite for social cross subsidization; it’s another caricature that European nations are ethnically and cultural homogenous—a glance at the history of almost every European nation reveals a host of distinct regions, principalities and ethnicities, joined as a single nation relatively recently and not without much political effort. Nor does it necessarily involve brutal suppression of difference: even the modern stereotype of an ambitious and aggressive example of national centralization—Republican France—was successful not as much because of the violent suppression of ethnic difference (not that this didn’t occur!) as because of the creation—coincidental and deliberate—of economic incentives to assimilation and the creation of a robust narrative of republican citizenship (here I think of the account of French nationalism offered in Eugen Weber’s “Peasants Into Frenchmen”).

    Perhaps the central point is this: in a world that is increasingly interconnected we, more than ever, need a good rationale for an ethic of political sharing that can underwrite a welfare state or social safety net. Liberal humanism isn’t sufficient because it doesn’t explain why we owe a greater to duty to people in the nation than to those, equally in need, outside its borders. For instance, given the ease of trade in agricultural products across national borders and the multinational interests of many nominally “American” corporations, why do we owe a free public education and minimum social services to non citizens who do seasonal agricultural labor in the United States but not to non citizens who do similar work in other countries whose main export market is the United States (we benefit from the labor of migrant farmworkers every time we buy produce from the Central Valley of California, but we also benefit from the labor of foreign farmworkers whenever we buy imported produce. American-owned agribusiness benefits from migrant labor but increasingly it also benefits from labor that occurs entirely offshore.) I suspect (and share) a strong, inchoate sense that migrant laborers, even those who send much of their earnings to foreign countries and reside in the United States only seasonally are still “us” whereas people residing and working exclusively in a foreign country are not But without a reasonably coherent and convincing account of who “we” are, I think defending this inchoate sense to a skeptic will be very rough going.

    In the blogs and in our December session we touched on this theme several times: Willie Forbath’s idea of social citizenship, Robert Post’s suggestion that we avoid particularizing constitutional frameworks (group rights on the equal protection model) in favor of norms of universal applicability (fundamental rights) and Bruce Ackerman’s (rightly controversial) suggestion to center a new constitutional program on a revitalization of the citizenship clauses. All of these ideas are and should be controversial. But that’s precisely what makes them worth considering. Let’s face it: we’re on the run. We need ideas that shake up comfortable left-liberal pieties and move us in new directions.

    I’m not convinced that either “work” or “citizenship” is the right organizing rubric. But I don’t think the fact that they will exclude some people is necessarily a reason to reject them. If we can provide everyone with the opportunity, given sufficient effort and commitment, to become a citizen (we’d need to revisit naturalization laws) or do meaningful work (we’d need something like William Julius Wilson’s idea of a WPA project for urban areas), its not clear to me that we owe something more to people who choose not to avail themselves of the opportunity. It’s an inevitable consequence of any conception of community that some people aren’t members. It seems to me that a liberal community could be sufficiently porus as to allow ready entry (and exit) on the basis of effort and demonstrated commitment. But its strikes me as quixotic to imagine one could drum up meaningful political support for sharing and cross subsidization in a community that required no significant effort or contribution and entailed no meaningful allegiances.

    In this respect, it seems to me enough that we offer everyone humane choices, even if they are not always choices from which they are happy to select. So I believe that if we were to emphasize an ethic of work, we must do much more to make workplaces dignified, humane and non discriminatory, but we needn’t abandon the idea because some able bodied people refuse work on any terms. If we are to emphasize citizenship we must make it available on dignified and humane terms to every responsible and contributing member of the society (I leave aside tricky questions of what counts as the society and why physical presence in the territory should have any weight at all, much less as much as it does) but we needn’t abandon citizenship because some potential members of the political community prefer other national allegiances.

    -- Richard Thompson Ford

    Tuesday, December 14, 2004

    Issues and Strategies for Election Law Reform -- post by Nate Persily

    In response to Reva's urging, I have attached a summary of what I see as the election law issues relevant to the first part of the New Politics session -- that is, not the IP/Media Concentration topic. I have organized them according to strategies for judicial interpretation and statutory innovation. I have included other topics that I think are usually "on the table" even if we did not have a chance to cover them. I have also included (mostly in italics) ideas/reforms with which I specifically disagree but which are usually part of these debates.

    There is a trees rather than forest approach to this matrix, but perhaps that is because in this field I suspect that the underlying values are not as disputed as in others (except when political self-interest gets in the way). Here are a few words at the opposite end of the abstraction spectrum:

    The electoral system should be arranged in a way that promotes values of representation, participation, and competition in the service of a particular vision of governance. The chief danger to these agreed upon
    values comes from incumbents' manipulation of the rules of the electoral game to insulate themselves from effective competition and one faction's (whether a majority or a minority) systematic attempt to deprive its opponents of their rightful share of representation and political power. The underlying values -- such as representation and competition --
    are often in tension with one another (as in the case of incumbent protecting gerrymanders); however, most of the "problems" in this area come from three heretofore intractable features of the American system:

    (1) Our reliance on partisan officials for most aspects of election
    administration and redistricting.

    (2) The incompetence of officials on the ground (due in large part to resource constraints) with respect to the actual mechanics of voting.

    (3) The decentralization of most election administration, which causes dramatic disparities within and among states.

    Frankly, if you can solve those three problems, many of the others that have preoccupied reformers in the past four years will fall by the wayside or greatly diminish in importance.

    issuejudicial actionstatutory innovation
    election administration

    1. challenges to biased administration based on 1st and 14th amendments.

    2. use of epc to minimize disparities between regions, localities, counties and precincts.

    1. creation of offices/commissions for non-partisan election administration.

    2. move toward statewide and national rules/uniformity/administration as to ballot design, technology, registration requirements, etc.

    3. professionalize precinct administration, develop graduate programs for election administration.


    1. challenge to partisan (or bipartisan/incumbent protecting) gerrymanders under 1st and 14th amendments.

    2. development of rules/districting principles for court drawn plans

    3. what to do with shaw v. reno?

    1. establishment of nonpartisan commissions.

    2. repeal of statutes mandating single member districts for congress (or state legislature)

    3. move to alternative voting systems.

    4. reauthorize/change section 5 (and section 2) of the vra

    campaign finance

    1. should buckley be overturned?

    2. should unions be treated differently than corporations?

    1. public funding/ ackerman-ayres.

    2. change the bcra?

    3. deal with 527s?

    4. abolish/reform the fec.


    1. eliminate felon disfranchisement (overturn Ramirez)

    2. challenge onerous burdens to registration and voting (including shortages of machines and long lines to vote).

    1. overturn statutes that disfranchise ex-offenders (change the way the census counts prisoners).

    2. same day registration, automatic registration through change of address form.

    3. internet voting, early voting, voting holiday.

    4. revisit the help america vote act/ provisional ballots.

    5. measures to eliminate fraud (particularly with respect to absentee ballots).

    6. compulsory voting.

    7. deliberation day.

    party reform

    1. reassess state actor/ private association status of political parties.

    2. challenge onerous ballot access rules.

    1. change primary/nomination rules.

    2. liberalize ballot access.

    electoral college

    1. eliminate by way of constitutional amendment.

    2. move states toward more proportional systems (such as the failed in initiative in colorado).

    voting technology

    1. challenges to states that use a variety of technology with different error rates.

    1. push for elimination of low quality technology.

    2. require voter verified paper trail for electronic voting machines.

    3. internet voting.

    macroinstitutional reoforms

    1. reform of heavily majoritarian structure of representative institutions (e.g., decline of committee authority, concentration of power in majority party caucus, decline in opportunities for debate).

    2. eliminate the filibuster.


    Friday, December 10, 2004

    Post by Jennifer Klein

    One task we have before us to discern and articulate what the links are between labor issues, economic justice, constitutional rights and democracy more broadly. In the Progressive Era and New Deal era, progressives, liberals, and the left talked of industrial democracy, or a political democracy accompanied by economic democracy. Given that no one seems willing to use the language of economic democracy today, it perhaps is seen as too tainted by the baggage of Marxian socialism. Nonetheless, we can reflect on what made the ideological claims of “industrial democracy” and economic democracy, social security and economic security so potent. It was a frame that linked equality and security claims with action, autonomy, voice, and participation claims. The empowerment part of the equation was crucial. Workers and community residents had to have the power to participate in the decisions that affected their welfare, wherever that might be. We cannot go back to the language of industrial democracy, since it is not the reality that shapes the daily world for most of us. Yet if we are devising a new ideological framework, I recommend that we articulate one that once again reflects imperatives of these dual claims.

    Union representation still holds out the promise of achieving these aims, even more so in a multi-ethnic, service-based economy. The Wagner Act (NLRA), however, has been blocked from ascending to the level of constitutional principle, as it were. And as we know, the proceduralism of the NLRB and union recognition process has actually become an impediment to workers‚ ability to form a union. Yet the all-important Section 7 of the original Wagner Act of 1935 could not have been more clear in its constitutional aspirations: “Employees shall have the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” The associational rights of workers did not initially depend on a particular process for certifying bargaining agents, especially one that allegedly had to be approved by employers or the state. The point was that employees would engage in self-organization. Subsequent legal interpretations from 1939 through the 1960s gradually subverted this right in multiple ways: channeling collective bargaining into narrowest economic form possible, severing unions from extra-workplace supports and political alliances, and finally suppressing organizing all together. Restoring a constitutional right to organize would not only revitalize unions at work; it would open the possibilities for worker organizations to cooperate and flourish with other community organizations that are concerned with essential aspects of our social lives: housing, health care, immigrant rights, education.

    Finally, I was surprised to learn at our Dec. 4 meeting (New Politics session) that forms of political engagement or action outside of voting are “not constitutional issues”-- and therefore need not be discussed. Perhaps this is one additional reason why the Right has been so successful at severely constraining freedom of assembly. Have liberals accepted the notion that the ability to rally in front of city hall, march on the street, picket a store or power plant, or hand out leaflets in front of a public or private building is merely a law enforcement or public safety matter to be handled through administrative, bureaucratic means? Law enforcement agencies, employers, and business entities have been increasingly aggressive in controlling our ability to take political action within public space and increasingly punitive against those who do. Towns and cities of all sizes have been using the permitting process in highly restrictive ways to stymie or limit public collective actions. They have attached onerous insurance liability requirements and new permit fees to suppress such applications; police have resorted to free-speech zones or pens, use of barricades, pre-demonstration confiscation of literature, signs and banners. Add this to employers‚ use of mandatory, forced overtime and surveillance, and not surprisingly, fewer people have the time or the ability to be part of local meetings or organizations.

    Those of us who live in New Haven might recall that a mere two years ago union members and workers were arrested for handing out leaflets on the sidewalk outside of the Yale New Haven Hospital; they were arrested by Yale New Haven Hospital‚s private police force. These union activists were outside the hospital because of the hospital's success at suppressing workers‚ right to form a union and exile of any workers who want to speak about the union from their workplace; yet their right of free speech was not even safe outside of their workplace! (Several months later, one of the fired hospital workers came to speak at my neighbor‚s house, a house meeting that was infiltrated by hospital management, who proceeded to write down everyone else‚s name at the meeting). It seems to me there is a confluence of constitutional issues here–where corporate prerogatives subvert civic action--which has undermined economic and political rights in our current undemocratic culture.

    Friday, December 03, 2004

    The Constitution in 2020: Forum Cycling and Synergies -- post by Reva Siegel

    It is a great pleasure, and provocation, on the eve of our first meeting, to read the postings on this blog begin to make claims on the Constitution in 2020. I read with many thoughts and questions, especially one that has long haunted me: how might the Constitution of 2020 (understood as law, as institutions, as culture) alleviate the harshest of inequalities among us? And how is it likely to naturalize them? Are there claims that Americans might make on one another, on government, on text, history, tradition, shared intuitions about justice, on national narratives about past and future, that would support constitutional development in the traditions of the best, rather than the darkest, moments of our constitutional history? How do we promote the development of a Constitution more likely to redress—rather than rationalize— the most extreme forms of deprivation and exclusion that we, the people, recognize and contest in 2020?

    The postings address our constitutional future in registers of prediction (what relevant forms of change can we foresee?), of prescription (what values, commitments, visions define how might we best live together?), and practical reason (what understandings and practices of constitutionalism would best realize our aims?). It is in this last register, the register of practical reason, that I respond to a debate running through these postings.

    Call it the forum question. It appears in at least two varieties. One running exchange asks: Do progressives seek to realize the Constitution of 2020 in courts, through the art of adjudication, or should progressive constitutionalists abandon their romance with the Warren court and pursue constitutional government in politics, through the dignity of legislation? The forum question appears in yet another form in these postings, as a set of questions concerning federalism: Should progressives practice fidelity to the national government, or is it instead time for progressives to abandon their romance of the national and to cultivate localism or cosmopolitanism—to focus on states, cities, and transnational arenas as the fora of constitutional development? In a number of postings the forum question takes the form of an either/or debate. Some postings advocate forum cycling (from national to local or transnational, from courts to legislatures), while others counsel forum fidelity. The exchanges at time slide from the register of practical reason into the register of prescription, so that conversations about forum appear as questions of progressive commitment or identity rather than strategy. How we understand these questions of forum, in the register of principle or practical reason, is a deep and complicated question, which we could well spend some time discussing.

    For present purposes, I will speak solely in the practical register. In seems to me that in imagining the Constitution in 2020, it would help if we moved the discussion of forum beyond the either/or form (courts or legislature, trans/national or local) to talk about the possibilities of forum synergies. What forms of interaction among courts and legislatures—and the “constitutional” institutions of civil society—might promote constitutional development in ways that would vindicate progressive values? What kinds of interaction among national, state, local, and transnational constitutional regimes might promote constitutional development of a kind that supports progressive aims? If we think about this question as a question of first principles or expressive identities it seems like we have to debate it and choose one or the other—transnationalism or constitutional nationalism, federal government or states rights, judicial supremacy or legislative constitutionalism. In some contexts, and for some purposes, in doctrine and in politics, the forum question may become a question of first principles and expressive identities—it surely has been one in matters of race since our founding.

    We need to anticipate and address these conflicts, but doing so will not exhaust the forum question—and may leave it unaddressed in its most difficult and interesting dimensions, the dimension I am calling forum synergy. I recurrently find myself thinking about the inequality question in this way. Issue by issue, what are promising synergies between adjudication and legislation? (How has antidiscrimination litigation altered national willingness to enact minimum entitlement legislation like the Family and Medical Leave Act, and how has the FMLA in turn begun to affect understandings about “stereotyping” and economic rationality? What kinds of cases, and what kinds of state and municipal legislation, might build a foundation for a new national legislation, etc.). Issue by issue, where is forum law (or a forum decisionmaker) receptive to progressive forms of constitutional elaboration? (Where do we want to pursue questions of social citizenship, or educational rights—and where can progressives best make claims about the regulation of family/intimate relations?). And what movements are available will carry these claims from forum to forum? (Constitutional development occurs as movements act in a system that has horizontal and vertical forms of jurisdictional redundancy, as Cover, Ackerman, and others have shown us.)

    To think creatively about the forum question in this practical register we need to be self-conscious about constitutional culture. We need to revisit implicit pictures of the constitutional order as we consider how we want to act in it, for the obvious reason that implicit pictures of the constitutional order exert regulative force as we make judgments about strategy and advocacy and as others make judgments about role, authority, and legitimacy. (I think of CEDAW and same-sex marriage in San Francisco—or Frank Michelman’s call for new framing statutes and amendments in Congress.) As many postings on this blog point out: We need to ask, where do progressive commitments amount to reifications of past conflicts? Where do they entrench doctrines whose normative valences have long ago been flipped? What parts of our history bear closer scrutiny in light of current constitutional conflicts? How do we encourage constitutional actors to think creatively about their roles? How can we think creatively about such questions inside the legal profession—and in what ways do lawyers and law professors need to guard against an understandable tendency to overvalue the constructive force of law?

    -- Reva Siegel

    America and the World, December 2004 – post by Harold Hongju Koh

    America is an exceptional country, with exceptional capacity to fill global vacuums, shape global regimes, and to generate global solutions. In the last half-century, it has played that role largely by promoting global institutions and constitutions. As I have argued in the Stanford Law Review, our post-Cold war, pre-9/11 policy was broadly characterized by an avowed strategy of promoting democracy from the bottom up around the world, then mobilizing global cooperation among democracies, within international institutions and international regimes, in order to solve global problems.
    Within that broad frame, late 20th century American foreign policy was characterized by:
    1. an emphasis on diplomacy backed by force, with force itself used as a last resort;
    2. a human rights policy that focused on human rights reporting, various forms of human rights conditionality, accountability through a growing emphasis on international criminal justice, and a willingness to engage bilaterally and multilaterally with repressive regimes around the principles of FDR’s “Four Freedoms” speech (although in fact primarily focused on promoting civil and political rights);
    3. a democracy-promotion policy that focused on democracy-building from the bottom up; and
    4. a general procedural orientation that Strobe Talbott describes as “strategic multilateralism and tactical unilateralism.”

    At home, our pre-9/11 National Security Constitution was premised on a post-Youngstown, post-Vietnam/Watergate vision characterized by
    1. a constitutional theory of shared powers, though marked in practice by extreme judicial deference to executive prerogative in foreign affairs;
    2. internal executive branch decisionmaking characterized by strongly centralized constitutional advice, flowing to the President primarily through the Attorney General and discipline imposed by the Office of Legal Counsel at Justice (OLC),
    3. varying degrees of congressional oversight and checking of executive overreaching,
    4. presumptions in favor of open government (FOIA, declassification) and against governmental surveillance of the domestic arena; and
    5. a relatively generous attitude toward resident aliens’ rights to participate in most aspects of American life (except for voting, jury duty, etc.) and an antipathy to the notion of extralegal or extrajudicial geographic zones or extralegal persons.

    Remarkably, in only three years, both sets of premises have been largely inverted in the name of homeland security:
    1. As Afghanistan and Iraq foreshadow, advocates of homeland security now urge that it be preserved by episodes of discretionary warmaking by coalitions of the willing on real and potential state sponsors of terror-- based on international law theories of preemptive self-defense and factual claims of real or potential access to weapons of mass destruction -- constrained more by resource overstretch than by constraints imposed by international law;
    2. our human rights policy has shifted toward a “Cold War” double standard of downplaying or apologizing for abuses committed by ourselves or our allies as necessary elements of the War Against Terror, hostility toward international criminal adjudication, reduced engagement with repressive regimes, and a dramatically increased emphasis on Freedom from Fear as the overriding human rights value;
    3. With democracy promotion, we have shifted to hard top-down, militarily-imposed and resource-intensive democracy promotion in Afghanistan and Iraq, soft faith in “domino democratization” throughout the Middle East-- accompanied (ironically) by dramatically reduced engagement in the Middle East peace process-- and a noticeably reduced role in democracy promotion in Central and Eastern Europe (see Ukraine), Africa (see Cote d’Ivoire), Latin America (see Venezuela) and South Asia (see Pakistan);
    4. and a shift toward strategic unilateralism and tactical multilateralism, characterized by a broad antipathy toward the previous emphasis on global engagement through diplomacy, institution- or constitution- building by treaty negotiation.

    At home, the post 9/11 constitutional vision has shifted, as other bloggers here have noted, toward a set of premises that would enable the policy orientation just described:
    1. a Curtiss-Wright theory of extreme executive prerogative in foreign affairs;
    2. internal executive branch decisionmaking characterized by constitutional advice flowing to the President primarily from DOD General Counsel’s Office and the White House Counsel
    3. modest or minimal congressional oversight of executive activity,
    4. a post-Patriot Act presumption in favor of governmental secrecy, reduced declassification and growing governmental surveillance of the domestic arena; and
    5. growing scapegoating and chilling of aliens’ participation in American life with executive efforts to create both extralegal and extrajudicial geographic zones (e.g. Guantanamo, Baghram) and extralegal persons (e.g. enemy combatants) who are subject to various kinds of nonjudicial process,
    6. and a concerted effort to persuade the judiciary to abstain on “passive virtues” rationales from substantive oversight of executive branch activity and to reject incorporation of international and foreign law into domestic legal review, so as to exempt the U.S. government from charges of embracing double standards.

    In the next few decades, the appropriate constitutional response will not be rocket science or innovative fixes, but rather, time-honored checks-and-balances reasoning:
    1. continuing reaffirmation of Youngstown as the governing constitutional theory of shared power in foreign policy decisionmaking;
    2. strengthened internal checks and balances within the Executive Branch through a meaningful role for Justice on the constitutional side and State and the Trade Representative and the policy side;
    3. Enhanced congressional oversight and expertise, especially in the foreign affairs, intelligence and armed services committees, and greater use of bipartisan commissions (a la the 9/11 commission) to expose structural governmental failures,
    4. resistance to new legislation designed to enhance further governmental secrecy and surveillance and to scapegoat aliens,
    5. constitutional protection for enhanced media oversight to break through secrecy and expose abuses (as in e.g., Abu Ghraib, Iraq and the search for WMD)
    6. continued litigation by NGO groups:
    a. to resist scapegoating of aliens and executive efforts to maintain extralegal and extrajudicial zones and extralegal combatants subject to minimal judicial review,
    b. to persuade the judiciary to maintain substantive oversight of executive branch activity,
    c. to support selective incorporation of international and foreign law into domestic legal review, so as to check the creation of a constitutional jurisprudence of rights which is visibly below global human rights standards, and to
    d. create a set of judicial canons to govern the relationship between domestic and emerging international jurisprudence (e.g. U.S. and ICJ in the death penalty area; U.S. and WTO and NAFTA panels, U.S. courts and international arbitrations in the commercial arena).

    Re the last, unlike some, I have not given up on the courts, and particularly the Supreme Court, which in the last few terms has imposed judicial review on Guantanamo (Rasul), granted due process rights to enemy combatants (Hamdi), sustained Alien Tort litigation (Sosa v. Alvarez-Machain), and acknowledged the relevance of international standards with respect to privacy (Lawrence), equal protection (Grutter) and death penalty (Atkins, and perhaps this term in Roper). This orientation arises in good measure from the creation of a “transnationalist majority” created by the joining of Justices Kennedy and O’Connor to Stevens, Souter, Ginsburg, and Breyer (forming the majority in most of the cases just enumerated).
    Nor has the trend toward transnationalist jurisprudence at the Supreme Court been a partisan one. Sosa, for example, was decided by the same 6-3 majority, with four of the transnationalist justices being Republican appointees (Stevens, O’Connor, Kennedy, and Souter). Thus, as in all other areas, the orientation of new judicial appointments will be pivotal in determining where our constitutional jurisprudence moves in the next two decades, and whether it moves America in a transnationalist or nationalist direction.

    -- Harold Hongju Koh

    The Progressive Constitution and the Public Good -- post by Mark Agrast

    Several posts identify the progressive Constitution with such overarching values as human dignity. Others seek a unifying principle in a revival of the Privileges and Immunities Clause—a proposal which seems as pregnant with possibility, though alas, no closer to realization, than it was when Charles Black urged such a revival as a replacement for the “leaky tire” of substantive due process. With our current political alignment unlikely to yield a Court that will incline toward such holistic modes of interpretation, American progressives can only look on with envy as foreign courts interpret such modern charters as the Constitution of South Africa, whose very text enjoins the courts to “promote the spirit, purport and objects of the Bill of Rights.”

    Could such a generous approach to unenumerated rights ever command popular assent in America? It seems to me that even in the dismal tidings of this past November there are seeds of hope. The pollsters tell us that a substantial proportion of the electorate voted on the basis of “moral values.”  We can stipulate that the values they chose were the wrong ones. Yet their willingness to put aside their self-interest is a good sign for progressives—if we can seize the opportunity to offer a compelling moral vision of the kind of country America can be.

    Despite what the election results might seem to indicate, most Americans subscribe to such progressive values as fair play, shared sacrifice, equal justice under law, and respect for the dignity of every human being. They share the progressive insight that our greatness as a nation stems from our ability not only to tolerate but to celebrate our diversity—and from a shared devotion to democratic values compared to which our differences are of little account.

    Our failure to reify those commitments allowed right-wing plutocrats successfully to portray their Democratic opponents as the party of special interests.  Yet as the unwholesome effects of this new Gilded Age are felt more widely, progressives have a fresh opportunity to present a conception of the public good that is rooted in our shared values, and to give concrete expression to those values in policies that foster such widely-supported goals as healthy communities, good schools, clean air and water, competitive markets, an equitable tax system, and a secure retirement.

    We should not shy away from framing these goals in explicitly moral terms; indeed, we must do so. At the Center for American Progress, we are working with our allies in the religious community to infuse our progressive messages with the language and spirit of the prophetic traditions that animated so many earlier movements for social change.

    Nor should we abandon our commitment to equal protection for the excluded and the disenfranchised in our anxiety to escape the “special interests” label. Our task is rather to frame a narrative that links those concerns to the strength and well-being of the community as a whole.

    -- Mark Agrast

    Constitutional Politics or Constitutional Law? -- post by Chris Schroeder

    Some people, myself included, are coming to this event having already participated in a number of discussions about the current state of progressive Constitutional Law. These have not been entirely upbeat, celebratory affairs. At some point, the success of conservative Constitutional law is almost always drawn into the discussion. Conservativism in Constitutional law seems to have seized the intellectual momentum, forcing progressive doctrine onto the defensive and in the process exposing underlying weaknesses in those defenses. Sometimes a stylized story gets told about how this all came about. It probably does not need repeating in this company, but I will do so because Jeff Rosen has recently done it for me in his piece in the Sunday NYT a couple of weeks ago:

    Conservatives set out to develop a constitutional methodology that would ensure that the liberal decisions of the Burger and Warren courts were overturned. In 1985, Attorney General Edwin Meese III gave a famous speech, declaring, ''We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.''

    After Mr. Meese's speech, ''originalism'' rather than ''strict constructionism'' became the judicial buzzword of the 1980's. Still, the effort by President Reagan and the first President Bush to appoint ''originalist'' judges had mixed results. After the Senate rejected President Reagan's nomination of Robert Bork in 1987, only two of the five Republican appointees -- Antonin Scalia and Clarence Thomas -- called themselves constitutional ''originalists.'' Three justices -- Sandra Day O'Connor, Anthony Kennedy and David Souter -- did not. Partly as a result, the Rehnquist court once again sided with liberals in the culture wars.

    In the 1990's, during the Clinton era, conservatives redefined strict constructionism once again. They focused on areas like deregulation, choosing cases they could realistically win in the courts. ''There was less political resistance to the court's federalism decisions than abortion and school prayer, because they're less on the radar screen,'' Professor Yoo said.

    In 1995, Douglas Ginsburg, ... wrote an article calling for the resurrection of what he called ''the Constitution in exile,'' by which he meant strict constitutional limitations on federal power that were abandoned after the New Deal. In that article, Mr. Ginsburg wrote that he never expected these forgotten doctrines to be resurrected in his lifetime.

    But his article coincided with the beginning of the so-called federalism revolution on the Rehnquist court. In 1995, for the first time since the New Deal, the court said there were limits on Congress's power to regulate interstate commerce. And since then, the court has struck down 33 federal laws. During its first 70 years of existence, the court invalidated only two.

    Although conservatives grow stronger every year on the federal bench, progressives still predominate on law school faculty, and we still write prolifically on constitutional topics, but much of the most widely commented upon progressive writing is either long on exposing deficiencies in conservative doctrine and shorter on comprehensive articulations of progressive doctrine, or else is urging us to adopt a less court-centered view of constitutionalism. These are admirable projects; I am for exposing the contradictions and weaknesses in conservative doctrine where appropriate and I think progressive politics and progressive civil society are in the end much more important than progressive law can ever hope to be in creating the conditions in which a progressive society might flower.

    I am increasingly curious, however, as to whether or not one additional possible response to the conservative success story – a response that has come up repeatedly in those other discussions to which I referred – is one that any critical mass of progressive scholars wants to pursue. That response would steal a page from the conservative play book by producing a cogent statement of progressive positions. There are a variety of forms such an effort might take. One would approximate the remarkable documents that emerged at government expense from the Meese DOJ, documents that Dawn Johnsen has so wonderfully excavated, and which became a sub rosa screening device for DOJ lawyers in their judge picking work under Presidents Reagan, Bush (41) and I assume Bush (43). It would not have to take that form, however. The essential ingredients to me would be (a) as clear a statement of constitutional interpretive principles as feasible; (b) a set of statements of progressive positions on significant disputes within constitutional doctrine. Perhaps it would also contain (c) a section articulating the relationship between these elements and the basic principles of a progressive society.

    I interpret the larger progressive literature as well as the blog entries leading up to the weekend conference as raising a significant number of reservations about such an enterprise. They include:
  • constitutionalism and progressivism are incompatible;

  • if such a project must be grounded in a constitutional methodology, it will fail, for there is no single methodology that claims sufficient progressive adherents to serve the purpose;

  • even assuming a consistent constitutional methodology could be developed, it would not be one that endorses all of the important progressive legal positions across the breadth of issues of concern to progressives, so that pursuing methodological questions will be divisive and counterproductive;

  • there is in fact no hope of articulating a methodology that is simultaneously defensible, desirable and constraining on judges – conservatives don’t do it, they only claim to do so, progressives could not do it, they don’t even claim to do so – because method ultimately get displaced by outcomes when the outcomes are at odds and important;

  • in particular, the conservative claim of methodological consistency is hypocritical – the claim to be in possession of some apolitical method such that judges who use it will be applying the Constitution while anyone else will be legislating from the bench serves a useful political purpose but the claim cannot be vindicated by observing the practice of conservative justices; progressives should not be interested in mirroring that hypocrisy;

  • whatever the possibilities for a set of progressive constitutional doctrines in principle, our Constitution cannot plausibly be construed to contain sufficiently progressive doctrines to help the cause (in many areas, the best we can hope for is to get the courts out of the way of progressive legislation);

  • under any plausible scenario of judge made Constitutional doctrine, progressivism has no prospect of succeeding except through legislation, so we need to devote our energies there; the doctrinal project seems important, but my own research agenda finds other questions more interesting/important, so don’t distract me;

  • you miss the point of Jeff Rosen’s story if you think the doctrinal development was its center; the key to conservative success has come from controlling the Presidency between 1968 and now for all but the Carter and Clinton years;

  • Memo from CLS: the doctrinal project is incoherent; bricolage is all there can be.

  • I will not even attempt a rejoinder to this undoubtedly incomplete, in places even inconsistent, range of reservations, except to express the hope that at some point during the weekend we can see whether there exists the combination of sufficient belief in the utility of such a project and a felt sense of urgency about one to undertake it. I hope we will find that combination present, not in any way with an intended slight on the work being done on popular/populist constitutionalism, small “c’ constitutionalism, thin constitutionalism and other correctives to an excessively court-centered view of governance. At the same time, I don’t think one needs to embrace court-centrism, and certainly not court-imperialism, to believe that courts will remain important adjudicators of rights when we reach 2020. The social/legal culture will not change that rapidly, and the wrongs for which people currently appeal to the courts for redress will not disappear, while at the same time new ones will come into view. People will continue to use the courts as platforms of expression, as well. Courts can perform important functions at least by smoothing some of the more jagged edges off legislative and executive transgressions. It might just be that were we to put our minds to it, we could develop a doctrinal agenda that was at the same time sufficiently supportive of the larger progressive project to be worth pursuing, sufficiently respectful of disagreements under the progressive tent and sufficiently grounded in interpretive commitments we are prepared to make to be both feasible and of some value.

    But then, again, maybe not. Certainly people can roll up their shelves and go to work on court related projects – when I realize that the only gains of the Republicans in the House of Representatives last month were the result of the Texas gerrymander, I think of the increasingly pressing need to do better with the “law of democracy” – without embracing any larger progressive doctrinal project, and there may be opportunity costs that make the latter an actual drain on activities like the former. It is just one of the questions on which we might focus at some time during the upcoming event.

    -- Chris Schroeder

    Wednesday, December 01, 2004

    The New Equal Protection -- post by Kenji Yoshino

    Discrimination in the United States has been shifting in some quarters from targeting groups toward targeting subsets of the group that fail to assimilate to the dominant group's norms. The movement has been from "no racial minorities allowed" to "no cornrows or non-English languages allowed," from "no women allowed" to "no mothers allowed," from "no gays allowed" to "no flaunting gays allowed," and so on. Should the law prohibit such "second-generation" discrimination, which targets the chosen, cultural, or behavioral dimensions of social status? An affirmative answer might begin by pointing out that discrimination against the subgroup may reflect discriminatory animus toward the group as a whole, that such discrimination may have a disparate impact upon the group even in the absence of animus, and that the attribute defining the subgroup may be deserving of protection in its own right.

    The constitutional remedy for such second-generation discrimination is not obvious. The Constitution's equal-protection guarantees cannot currently redress such harms because they have been narrowly construed. It is familiar history that, since 1976, discriminatory impact alone is insufficient to trigger heightened judicial scrutiny. That peremptory strikes directed at Spanish speakers will have a disparate impact on Latinos will not in itself result in the strikes being closely examined by the Court. And while discriminatory impact may be probative of discriminatory purpose, the Court in 1979 defined discriminatory purpose in a highly restrictive manner. To meet that definition, strikes directed at Spanish speakers would have to have occurred "not in spite of, but because of," their effect on Latinos. Finally, in most instances, the Court will not scrutinize second-generation discrimination because it has refused to accord heightened scrutiny to first-generation discrimination, as in the cases of disability or orientation.

    The Court's unwillingness to redress second-generation discrimination under the equal-protection guarantees can be traced in large part to the explosive pluralism of American society. In restricting protections for historically subordinated groups, the Supreme Court has repeatedly alluded to the increasing demographic diversity of the American polity. It has expressed concern that if it protects a cultural attribute associated with one group, it will be pressed to protect analogous attributes associated with other groups. That consideration will draw the Court into comparative judgments about the validity of cultures and groups. Understandably, the Court would rather be dead in a ditch than make such judgments.

    Yet the Court has not left cultural rights entirely unprotected. Substantive due process and the somewhat arcane rights strand of equal protection have addressed equality concerns under the guise of protecting fundamental rights. In the 1970s, the Court vindicated some of the rights of the indigent not by giving class heightened scrutiny but by declaring some rights -- such as the right to travel or the right to access courts -- fundamental. While the rights themselves were universal, their origins were particular, in more than the trivial sense. They arose from an identity-based social movement the Court was not willing to protect as such.

    Recent decisions like Lawrence v. Texas (2003) or Tennessee v. Lane (2004) limn a similar trajectory. While these cases could be most plausibly categorized as equality cases pertaining to sexual minorities or individuals with disabilities, the Court decided to protect these groups through due process rather than equal protection. That doctrinal move reflected a shift away from equality toward liberty as the ground on which historically subordinated groups would be protected.

    Reva Siegel and I are writing an essay arguing that to the extent the Court continues to vindicate equality claims, it will increasingly do so through fundamental-rights adjudication. This shift permits the Court to lift up a historically subordinated group without explicitly giving it constitutional solicitude as a group. Fundamental-rights analysis, of course, raises slippery slope concerns of its own. But it has the virtue of emphasizing where citizens tack together rather than where we veer apart. Taken to its outer limit, it also gives the trend toward globalization its due, as Lawrence demonstrated in grading civil rights into human rights. (Human-rights lawyers, take note: substantive due process is now an even more viable vehicle through which to internalize international norms.)

    What will our anti-discrimination law look like in sixteen years? Will we have defined second-generation discrimination out of the category of legal harm altogether, leaving "cultural rights" to be redressed by "cultural remedies"? Will we have re-opened any of the equal-protection doors the Court closed in the 1970s, securing a "substantive equal protection"? Or will substantive due process (or some other line of doctrine) have become the "new equal protection"?

    What will we (or they) have chosen, and how wise, in 2020 hindsight, will those choices appear to our eyes?

    --Kenji Yoshino

    Future of the Constitution: Foreign Policy and National Security -- post by Stephen Holmes

    The Iraq war illustrates the pathological consequences of unilateral commander-in-chief power to define the "threats" to American national security on the basis of secret information that is never examined by a constitutionally independent body with a realistic chance to withhold approval for the commitment of military force abroad. The gravest injury to constitutional government caused by "the war on terror" has not been to civil liberties but to checks and balances, namely, to basic constitutional mechanisms for self-correction, designed to facilitate midstream readjustment when disastrous policy failures become self-evident. At risk is not individual freedom but public reason.

    One challenge is to develop, presumably on the basis of currently existing Congressional committees -- overseeing foreign policy, covert intelligence and military affairs -- a serious and bipartisan forum in which to debate, define and establish reasonable priorities among various and evolving threats to US national security. The vital importance of such a forum, which obviously must take into account the government‚s needs in this area for secrecy and dispatch, is revealed by the basic irrationality of the current approach to the war on terror. Fundamentally, the administration reasons as follows. To determine the need for a military response to a looming threat, we need to multiply the probability of the threat by the gravity of the threat. Even a remote chance of a suitcase nuke in Washington, DC, they irrationally conclude, requires us to tie down 70% of our national-security assets in Iraq. The fallacy of such reasoning is obvious to anyone outside the bunker: it ignores opportunity costs and fails to husband resources (to keep our powder dry) for the inevitable emergence of even graver and more imminent threats elsewhere (in Korea, say, or the Taiwan Straits). This is how the constitutionally untrammeled and unilateral commander-in-chief power to define national-security threats undermines public reason.

    Assuming continued one-party control of all branches of the federal government, the last effective check on executive-branch irrationality comes from inside the executive branch, from dissenters inside DOD, CIA and so forth. Such voices are currently being stifled. If you speak truth to power, you lose your security clearance. This is not just a problem. It is a catastrophe. To address it, we need something more than strengthened whistle-blower laws. We need some sort of legal requirement for the (limited) disclosure of fundamental debates over threat assessment occurring inside clandestine intelligence agencies. Rationality requires our conclusions to be driven by evidence and argument. Partisanship, by contrast, encourages the one-eyed search for evidence and arguments to corroborate pre-established policy choices. To exaggerate somewhat, we can say that the question facing us today is this: will one-party government recreate our intelligence agencies in the image of AEI and FOX news, where the books are always cooked, or will the spirit of nonpartisan professional be constitutionally preserved?

    Finally, we must deal with the DOD takeover of foreign policy, facilitated by the happenstance of a Vice President with personal ties to the Secretary of Defense, but which also has deeper roots in the massive power of the Pentagon and private defense contractors. DOD tends to interpret the international threat environment in the light of its own capacities. Threats that cannot be handled militarily are downplayed. This is obviously unwise and indeed immensely dangerous so long as DOD's version of the threat environment cannot be effectively challenged by the State Department and other agencies where at least some knowledgeable and worldly personnel can help bring other kinds of threats into focus. The primary threat to US national security is not the possibility that non-nuclear states will go nuclear, but rather the possibility that existing nuclear stockpiles will sluice into the clandestine international arms market. This grave threat cannot be decreased by military force or the threat of force. It requires diplomacy, a tightened arms-control treaty regime, and intensified international police cooperation. These essential tools for enhancing American national security will be dangerously neglected until DOD's exaggerated influence over US foreign policy is substantially reduced. Ordinarily, the White House and the National Security Council can be expected to maintain some sort of reasonable balance between the Pentagon and the State Department. But these are not ordinary times. Can some sort of constitutional reform preserve the residual professionalism of State, and its capacity to resist DOD unilateralism, in the face of one-party rule?

    --Stephen Holmes