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