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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