Post by Deborah Cantrell

As we gather to discuss visions of a progressive agenda for the Constitution, I wonder whether we should more overtly discuss issues that will arise with implementation. We have had some colloquy about whether it might be best to advocate through the courts, the federal or state legislatures, or in combination, but we have not thought about whether the current structure of the delivery of legal services will affect our ability to advocate. If one looks at the way public interest law is practiced in the United States, most advocates work outside private law firms, at federally-funded legal services programs, at independently-funded impact and policy nonprofits, and at independently-funded community-based organizations. Each of those three settings comes with restrictions and pressures that mold the way strategic agendas are set and the way in which advocacy is practiced. Those structural pressures have the potential for working in opposition to progressive agendas we might craft at our conference in April.

For example, as we all know, advocates at federally-funded legal services programs (LSC programs) are restricted in the kinds of work they may do and the kinds of clients they can represent. LSC programs cannot engage in any redistricting challenges, may not litigate abortion matters, may not bring class actions, nor recover attorneys’ fees, and may not represent prisoners, those evicted from public housing because of drug convictions, nor most non-citizens. LSC programs may not lobby. LSC programs cannot avoid the restrictions by garnering other funding – once a program receives as little as one dollar in federal funding, the federal restrictions apply (although this provision is currently being litigated in New York).


The reason that the above restrictions matter for our own agenda-planning is that LSC programs are still the primary way in which the poor and underserved receive civil legal services in this country. Every state has at least one LSC program, and in many smaller or more rural states, the LSC program may be the only source for most civil legal services. Almost all states now have a “spin off” advocacy organization – generally some subset of attorneys from the state’s LSC program who were severed from that program so that they would be free of the federal restrictions, but many spin-offs are tightly-staffed (one to three attorneys) and miserably funded. Thus, to the extent that our progressive agenda envisions advocacy that would be prohibited by federal restrictions, who will do the work?

Some of the work, of course, will be handled by the national and regional impact and policy nonprofits – the Legal Defense Funds, the National Centers, and the like. But they, too, face challenges. To the extent those programs underwrite their work with attorneys’ fee awards, those awards have been undermined by the Supreme Court’s decision in Buckhannon eliminating the catalyst theory of fee awards (the plaintiff was a “prevailing party” even when the plaintiff’s lawsuit brought about the defendant’s voluntary change in practice). Lower courts have liberally applied Buckhannon. Further, state courts have begun applying Buckhannon to state fee-shifting statutes. Thus, litigation as a means of doing good as well as generating operating income is a sketchier proposition now. The impact nonprofits have felt the resulting pressure on their budgets. To the extent that our progressive agenda will need to be implemented by litigation, the impact nonprofit’s decision to take on the case will have to consider not only the merits of the litigation, but the budget consequences as well.

Impact nonprofits, and every other kind of public interest advocacy program, have also turned to foundations for funding. With some notable exceptions, foundations have not been willing to fund litigation or legislative advocacy. Foundations have preferred to fund targeted projects, often those where several types of public interest groups collaborate. For example, a foundation will fund an LSC program and a community center to create a “know your rights” program for center members regarding Medicaid benefits and coverage. Foundations set their substantive priorities and public interest law programs must pitch projects within those priorities. Thus, foundation funding can sometimes match the priorities that the public interest program has set, but may not. While public interest programs know they shouldn’t “chase the money,” that is hard advice to heed when faced with the possibility of laying off staff. To the extent a nonprofit knows it can get foundation funding and protect its staff, why would it opt to take on part of our unfunded progressive agenda?

Private firms have stepped up to handle and underwrite public interest advocacy and have garnered some high-profile wins. Private firms have the advantage of working free of any restrictions and the possibility of deep pockets if partners are generous. But private firms will never choose, or be able, to handle the bulk of public interest law advocacy. Similarly, law school clinics have admirably soldiered on, even in the face of political criticism and pressure (think of Tulane’s environmental law clinic). But, they too, could never pick up a substantial amount of any large-scale advocacy agenda.

So, at the end, we must acknowledge that our progressive agenda for the Constitution in 2020 will be implemented by LSC and non-LSC programs, impact nonprofits, and community-based organizations. When we think about general framing concepts or tropes for our agenda, we should be mindful of restrictions and the like. For example, if we think about “citizenship” as a framing concept, what does that mean for LSC programs who cannot work with most non-citizens. The same when we think about strategies for redistricting or work that involves prisoners. Or, when we push for a particular interpretation of the Constitution that will have to be created through litigation, what does that mean for a tightly-funded impact nonprofit that might already be carrying a litigation docket that will not bear much in attorneys’ fees. We certainly will not be able to resolve all the tensions I have noted, but at least we should require ourselves to consider these structural barriers.

-- Deborah Cantrell

Society Must Be Defended*: Mass Incarceration, Race, and Democracy -- post by Jonathan Simon

* See Foucault, Society Must Be Defended (New York: New Press). Foucault sees the politics of the nation state from the very start as a barely contained race war between dominant communities and their (racial, religious, linguistic, class) others. The war on crime is one variant of this race war.

There is a growing progressive consensus that the effects of mass incarceration now endanger democracy in America, especially (but not exclusively) in the way they transform the social significance of race in America. This consensus is supported by a steadily accumulating body of empirical research that shows the depth and the perverseness of these effects that channel billions in tax dollars into the forced internal migration of larger numbers of young Black and Hispanic men (and now women too) while distributing economic and political gains to ex-urban and rural counties. With a third of all Black men bound for prison at some time in their life, current policies have made incarceration and the panoply of institutions through which people are moved into and out of prison a primary source of socialization and role formation for whole communities. Arrest and incarceration rates for Black women have grown even more rapidly in recent years.

Even some progressives who supported the war on crime as a legitimate response to the apparent social disintegration of the 1960s through the 1980s now concede that at least some of the consequences of incarceration like the effects of voter disenfranchisement and economic exclusion must be addressed (e.g. Senator Clinton’s support for a voting rights statute that would bar permanent felon exclusion in federal elections). Voting is only the most palpable way in which this works a loss for democracy. The growing gap in family wealth (as opposed to income) between White and African American families reflects in part the consequences of criminalizing the social crisis of inner city America from the late 1960s on as it plays out on access to education, property values, structural mismatch in access to better paying jobs, loss of eligible marital partners, etc.

Unfortunately the constitution as it has been read by courts does little directly to disable mass incarceration. The 13th Amendment itself gives us the explicit assurance that slavery can be reborn so long as it is practiced solely on felons (something the South did almost immediately with the Convict Lease system). The 8th Amendment offers little solace either. As long as capital punishment remains constitutional (more on this strand in April), long prison sentences for crimes like being a former felon in possession of a firearm are not going to be perceived as “cruel” and they are hardly “unusual.”

The most racially explicit forms of penal power, like California’s remarkable racial classification for incoming inmates, can and should be challenged on equal protection grounds. Thanks to Johnson v. California, we in California may actually have a public discussion of whether it’s a good idea for the state to help reproduce a system of racialized gang violence as a way of governing prisons. But the Court is unlikely to go very far in challenging the power of state legislatures to determine the purpose and scale of punishment (at least punishment by imprisonment).

Disturbing is the fact that American political culture has long embraced harsh punishment of threatening criminals as a function of democratic governments seeking to protect the common good rather than sinister gesture of monarchical excess. The illustration below of America’s only legal mass execution is a chilling example. The simultaneous hanging of 38 Santee “Sioux” Indian men by federal troops in front of a crowd of white settlers took place in 1862 in Minnesota. The no doubt stylized representation drawn by the 19th century commercial illustrator is in no way subtle about the political significance of the act. The western town rising behind the scaffold, the covered wagons gathered at the side, and the ranks of federal troops lined around the scaffold remind us that this is no spectacle of monarchy, but a disciplined act of social defense carried out against a racialized other defined in no small part by the perceived threat of violent resistance to the white settler race.



The Reconstruction Amendments offered little direct remedy against harsh use of imprisonment or even the death penalty consistent with social defense. Great violence directed at vulnerable minorities, both state violence and the state tolerance of private violence, existed unimpeded for the first half century after the adoption of the Amendments. The Supreme Court did eventually respond to the specter of lynch like conditions in the capital rape convictions of the so called “Scottsboro boys” in Powell v. Alabama 287 US 45 (1932). Anchored in the 14th Amendment’s due process clause, Powell and its progeny opened up federal courts as tools of reforming state and local criminal justice agencies. But as valuable as these rights have been it is not clear whether they offer an effective remedy against mass incarceration. Indeed we might wonder whether the provision of more humane conditions under the 8th and 14th Amendments has not made tolerable a policy of population transfer into a carceral dimension.

If there is a constitutional angle to the fight against mass incarceration it may lie in the survival of key elements of New Deal governmentality now being contested and often in constitutional terms. There is irony aplenty here. New Deal precedents on federal power to regulate social conditions under the commerce power have been relied on to support tough anti-crime measures aimed at addressing populist concerns while recent efforts to attack some of the substantive criminal laws that sustain mass incarceration have raised the banner of limited federal power. Moreover, President Roosevelt and Attorney General Homer Cummings flirted with a war on crime as a hedge against the failure of economic reform that would allow the administration to be vigorously addressing the sense of social collapse during the early stomach dropping years of the Depression. In its effort to produce compliance with its many regulatory initiatives, the New Deal pushed the use of strict liability criminal prosecutions to hold executives accountable for faulty consumer products regardless of whether the defendant had any actual knowledge of the particular circumstances.

But the forms of governance that actually emerged from the New Deal, social insurance, organized labor, regulatory agencies, provided ways of addressing alarming social problems that did not operate primarily on coercive tactics aimed at criminal behavior. Indeed, in some cases, like that of organized labor, the New Deal framework took conflicts that had been channeled into crime and criminal justice (unions were sometimes considered criminal conspiracies, gangs were employed to attack unions and later to protect them) and moved them into a realm of civil law and justice.

Whether or not the social effect of weakening of the risk spreading functions of New Deal governance produces more crime (a difficult question to answer) it seems to have encouraged government itself to view more risks as crime like and amenable to criminal solutions. In a vicious cycle, the politics of crime de-legitimizes remaining systems of socializing risk. The “Leave no Child Behind” law and the new consumer bankruptcy law are only the most recent moves toward dismantling systems of social risk spreading in the name of isolating and controlling “abusers.”

In short, the best way to stop and reverse the destructive effects on democracy of our four decade long war on crime is to shore up and reinvigorate the constitutional framework of New Deal governance. Creating effective forms of governance that address important sectors of risk in people’s lives can compete with the attractions of mass incarceration. Society must be defended, but how?

-- Jonathan Simon

Money and American Democracy -- by Burt Neuborne

I am enclosing a draft chapter on the relationship between wealth and American democracy. I plan to discuss many of the issues raised in the chapter at the upcoming conference.

[Click here to read the chapter.]

Post by Cass Sunstein

In my dialogue with Bruce Ackerman, I will be arguing for the importance of focussing quite narrowly on the Constitution in 2020 -- the founding document as it is interpreted in courts. I will be urging that it is important to resist, on democratic grounds, the idea that the document should be interpreted to reflect the view of the extreme right-wing of the Republican Party. This idea, sometimes masquerading under the name of originalism or strict construction, represents a form of judicial hubris; it is bad history and bad law. It should be exposed and rejected as such.

For 2020, what should be asserted instead is a form of judicial minimalism, one that also gives the democratic process wide room to maneuver. The appropriate path is not charted by Roe v. Wade; it is charted instead by West Coast Hotel, upholding minimum wage legislation, and Katzenbach v. Morgan, allowing Congress to ban literacy tests. Moderates and liberals should not want the Supreme Court to march on the road marked out by the Warren Court. They should celebrate instead rulings that defer to Congress and that invalidate legislation rarely and only through narrow, unambitious rulings, akin to the Court's recent decision in the Hamdi case.

Minimalists insist on a democratic conception of the free speech principle and also on procedural safeguards for those deprived of their liberty. But they reject any Citizen's Agenda if it is understood as part of constitutional law proper.

In other words, it is exceedingly important to distinguish between the Constitution in 2020 and what would be good in 2020. UnlIke Ackerman, I do not favor "a political coalition that will ultimately be in a position to name Supreme Court justices who will repudiate The Slaughterhouse Cases, and give constitutional meaning to the 'privileges' and 'immunities' of citizenship that make sense in the twenty-first century."

One qualification is that the United States does not only have a Constitution; it also has a set of constitutive commitments, beyond mere policies but without a formal constitutional status. Franklin Delano Roosevelt's Second Bill of Rights was an effort to establish several such commitments, including, above all, decent opportunity and minimal security. I will briefly discuss the value of seeing the Second Bill of Rights as part of the nation's self-definition in 2020 -- though not of seeing it as part of our formal constitution. The insistence on the Second Bill of Rights is best regarded as part of democratic deliberation, not as part of constitutional law.

-- Cass Sunstein

Post by Bruce Ackerman

In my dialogue with Cass Sunstein at the Conference, I will be urging a "Citizen's Agenda" as a centerpiece of progressive constitutionalism for the next generation. My aim is to redeem the lost promise of the Fourteenth Amendment's vision of national citizenship through the enactment of framework statutes and the judicial development of the meaning of "privileges" and "immunities" of American citizenship. The creation of a legislative "Citizenship Agenda" has been at the center of my recent books with Ian Ayres (Voting with Dollars), Jim Fishkin (Deliberation Day) and Anne Alstott (The Stakeholder Society).

These books have two basic aims. The first is to give ordinary Americans realistic tools for participating in political life by providing each citizen (1) with 50 "Patriot dollars" which he can give to any party, candidate or interest group of his choice during the course of a presidential election (V with D); and (2) an opportunity to discuss the issues with his neighbors at a new public holiday held two weeks before each national election. (DDay)

The second aim is to create a new institution of civic inheritance to complement the existing institution of family inheritance. Each American citizen should receive a substantial stake (Alstott and I argue for $80,000) when starting out in life as a young adult. Each citizen should be free to use his stake for any project he thinks best. Stakeholding will give renewed meaning to the Declaration's promise of "life, liberty, and the pursuit of happiness" by giving young adults the wherewithall to shape their lives at a moment when most of them are living from paycheck to paycheck.

I think this is a winning platform politically. By reorganizing progressive politics around the ideas of common citizenship -- both political and economic -- it will lay the foundation for a political coalition that will ultimately be in a position to name Supreme Court justices who will repudiate The Slaughterhouse Cases, and give constitutional meaning to the "privileges" and "immunities" of citizenship that make sense in the twenty-first century.

-- Bruce Ackerman