Friday, April 08, 2005

“Progressive” – A Liberal in Sheep’s Clothing? -- post by Melody Barnes

It strikes me that we freely use the term “progressive,” but it isn’t clear that we have an articulable definition. While I’m not suggesting that we should or could reach consensus, I do believe we need to achieve some clarity. Right now, the progressive movement is dancing around the issue. We need to do more than erase “liberal” and substitute “progressive” or add “not” in front of “conservative.” Without some guideposts, it will be difficult for us to articulate our understanding of the Constitution and where we want to be in 2020; to define our understanding of the roles of Congress, the President, the courts, and state and local government; or to build a movement – distinct but related tasks.

At a recent conference – “New Strategies for Southern Progress” -- when asked to define “progressive,” journalist Hodding Carter III jokingly responded that a progressive is a liberal in sheep’s clothing. After the laughter died down, he provided an answer that I find personally appealing. He said, “A progressive is someone who remembers and reasserts repeatedly that the history of the United States is a history of constantly expanding opportunity, of constantly expanding the protection society affords those least able to protect themselves, and it is that history that makes the country great.” While meat needs to be added to those bones, I do believe he spoke to the essence of progressivism.

In the course of defining ourselves (hopefully before others do it for us), we should build a progressive narrative that includes our history and our vision for the future. If we probe history it may provide helpful clues to the questions before us. In past progressive movements, did improved democratic processes alone expand opportunity for masses of people or did the drive for improved processes work hand-in-glove with expressed substantive ideals? While many . . . most . . . all of us are disillusioned with the courts, how does the lens of history adjust our view of majoritarian institutions? How should past battles on the state and local level affect our vision for work in that area today? And, on that score, can we be more than outcome-oriented federalists? Perhaps those in academia are clearer in this area, but it hasn’t trickled down to policymakers.

History also speaks to our fumbling around the issues of values, morals and religion. Those are clearly uncomfortable terms for progressives. For cultural, historical and constitutional reasons, the conversations are complex, and added to the mix is the advent of a chilling and powerful conservative religious movement. I believe it is important to remember that part of our history speaks to the achievement of progressive goals through the coordinated work of secular and prophetic/progressive religious leadership. One doesn’t have to marginalize the other, and consistent with the writings of those like Bill Marshall and Melissa Rogers, work can be done well within constitutional parameters. “Values” are not conservative off-spring. Religious and secular, our work and constitutional view are rich with a broad sense of equality, fairness, and justice – sometimes we even vote against our personal/economic interests.

Finally, while defining ourselves, we also need to determine a coherent way to discuss our view of the individual’s relationship to government. Take the issue of privacy – specifically, abortion. Our core argument is that government should generally stay out of the abortion decision; that’s certainly the public relations message. But, those of us making that argument often pull government back into the fray when rejecting the Hyde amendment. This is just one example of our dilemma, and there are others. It is an issue we should consider – not just as an intellectual exercise but also to clarify our goals and views for the public.

The bottom line is that on our way to making the progressive 2020 Constitution real, I believe we must also address the base-line question: what makes us progressives.

-- Melody Barnes

Wednesday, April 06, 2005

Post by Seth RosenthalPost by Seth Rosenthal

Picking up on Jeff Berman's post from a few months back: Having entered the sometimes un-real world of nonprofit political advocacy a short two months ago, I have become interested in more than simply the crafting of a positive constitutional vision. More than anything, consistent with ACS's goals, I have become interested in the development of a vision that is readily articulated, captures the public imagination and infuses public discourse. If we believe that that such a vision has not yet been developed, our task is two-fold: developing the vision and learning how to articulate it. If, on the other hand, the vision we embrace is already largely developed, the work ahead seems to be more about politics, more about passionately and convincingly delivering the right message, than anything else.

Posts from people like Professor Sunstein and Minow suggest to me that perhaps we aren't thinking about something entirely new. Rather, as far as I can discern, we, or at least some of us, are talking about re-asserting a constitutional vision that once held sway and is still hanging on -- a vision, based on Katzenbach v. Morgan and the like, that provides broad legislative maneuvering room for progressive government and, only where necessary, limits government so as to prevent undue restraints on individual liberty. If this is what we're talking about, must we then simply learn how to advance a "strong narrative ... expressing why constitutional fidelity in no way requires the abandonment of the New Deal," as Jonathan Simon says?

Who knows. Certainly not me. But if this is the case, I remain optimistic. Recent polling shows that significant majorities do not prefer courts that would strike down worker, consumer, environmental and civil rights protections and roll back established individual rights. In other words, significant majorities, broadly speaking, do not favor much of what is happening -- largely beneath the radar screen -- in our federal courts today, or at least much of what legal conservatives want to happen. Is it so difficult to articulate a positive constitutional vision that reflects the worries of these majorities, a vision that exposes the Constitution in exile as bad history and bad law, as Professor Sunstein and others have tried to do in popular, if higher-brow, publications?

In the current political climate, we are, of course, always saying what we're against. But because there is much in our opposition that we can and should quickly turn into a positive constitutional vision, playing defense is not necessarily a recipe for inefficacy. That's because offense -- advancing the positive vision -- can go hand in hand with playing defense. With apologies for being simplistic and not wholly accurate, recent history, at least superficially, proves as much. Progressives railed against what they didn't like about the Supreme Court's Lochner era and early New Deal decisions but then turned their disapproval into successfully advancing the view that the Constitution provides Congress a wide berth to enact social reform legislation. Legal conservatives similarly condemned what they didn't like about the Roosevelt era and Warren Courts but easily -- and successfully -- transformed their condemnation into a countervailing positive view that restricts Congress' maneuvering room and eschews recognition of non-enumerated individual rights. It seems we're in a similar place now. When, for instance, we say that we are against current efforts to rewrite Commerce Clause, 14th Amendment and Spending Clause jurisprudence to undermine the constitutional basis for progressive government, aren't we necessarily expressing a positive constitutional vision? And isn't it a vision that can be readily articulated and even media-worthy, despite the media's current fixation on "values" issues like abortion and public square religion?

From the upcoming weekend, a neophyte like me is hoping to take away concrete ideas about a constitutional vision, whether new or revived, that can be easily worked into a much wider, much more public discussion. The opportunity for such a discussion may occur as early as the next Supreme Court vacancy.

-- Seth Rosenthal

Monday, April 04, 2005

Race and the Common Good -- Post by Olati Johnson

1. Several people suggest restoring and promoting a vigorous concept of the common good. Robert Post asks whether progressives should continue to “orient our constitutional politics” around inclusion, or rather whether we should articulate an affirmative vision that, in the tradition of FDR, speaks for the entire public. Several other participants suggest a vision of the common good organized around work: full-time workers should be able to make a living wage, all workers (and not just those entitled to protection under civil rights laws) can be fired only for cause and so on.

I support this framing. I ask also that we articulate a vision of the common good that does not marginalize conceptions of race. Race often operates to undermine notions of collective good. Perceptions (and misperceptions) about the race of beneficiaries has eroded support not just for racial reform, but for progressive social and economic programs (welfare and anti-poverty programs for instance). And at the same time, collective universal programs can serve to perpetuate racial hierarchy. The original Social Security Act, while it benefited many African-Americans, excluded domestic and agricultural workers who were primarily African-Americans. Post-war housing programs such as VA and FHA backed loans helped to create a suburban middle-class, but contributed to racial segregation. A vision of “citizenship” must account for the fact that racial exclusion often takes the form of citizenship harms – including the designing of public policy in ways that exclude or reinforce racial inequality. We need a robust concept of “citizenship” and of the “common good” that ensures that state actions and policies do not exacerbate disparities. This will require creating a new narrative around race -- one that understands the problem of racial subordination as a challenge to our “civil self-understanding” (as Glenn Loury says), our nation’s sense of shared purpose and fate. We also need to deal directly with the problem of racial inequality because, as an empirical matter, race-neutral policies and programs will likely be insufficient in addressing entrenched disparity.

2. Reading the discussions about the progressive vision of the constitution, I realize that I would settle for a constitution that gives Congress broad powers of enforcement. To the judicially-enforced equal protection clause I ask: “what have you done for me lately?” Despite all the legal commentary critiquing constitutional standards, things were not so bad when we had robust statutory responses to this limited standard. It’s the post- Boerne pre-Hibbs Section 5 decisions that seem the serious problem, and, as Pam Karlan has pointed out in her writings, the curtailment of the right to privately enforce civil rights (see, e.g., Sandoval).

3. While this may be somewhat beyond the scope of this conference, I believe that progressives need to be much better at working on the state level. Some postings have discussed the need for a constitutional vision that allows progressive experimentation at the state level. While working at the Senate, I noticed that our state-level networks were often too weak to support innovative and progressive federal-level reforms. Most congressional members need to feel pressure from state-level groups and individuals to support progressive reforms, and members of good will often want to build on innovative state-level efforts. Unfortunately, most of the major non-governmental organizations have very little infrastructure on the state level. The result is that interesting efforts on the state level – for instance sentencing reform efforts fueled by the states’ fiscal crises – are not always harnessed to promote broader national policy changes. We need to think about the federal-state connection differently to bring about progressive reforms.

I look forward to the discussions.

-- Olati Johnson

Sunday, April 03, 2005

Post by Lisa Brown

What values and principles does our Nation stand for? What kind of society do we want for ourselves and our children? Will our Constitution continue to stand as the leading model for its embodiment of a constitutional democracy with a genuine balance of powers and a commitment to liberty, equality, justice and the rule of law? And, as a growing number of constitutional democracies join us in addressing the economic, social and political challenges of this new century, can we revitalize our own centuries-old constitutional traditions by learning from those who are shaping their own, sometimes very new, constitutional orders? The answers to those questions are at the heart of the Constitution in 2020 conference and the larger American Constitution Society project, The Constitution in the 21st Century, of which it is a part.

We live increasingly in a legal landscape imagined largely by conservatives. Conservatives have captured the intellectual initiative in popular and even much elite discourse. Their success in framing and communicating fundamental conservative principles has contributed to real legal and political change over the last two decades. Will we allow narrow and sterile conservative interpretations of our Constitution’s vital principles and protections to reshape our national character and control our daily lives?

Our answer, on this weekend and on every day of the coming years, is a resounding “No.” It is time to reclaim our Constitution. The Constitution in the 21st Century is a multi-year initiative to advance our nation’s commitment to a constitutional democracy that safeguards individual rights and liberties, genuine equality and access to justice. Our task is to do the deep, careful thinking necessary to formulate and advance a progressive constitutional vision that is intellectually sound, practically relevant, and faithful to our constitutional values and heritage. This effort will need to proceed on a number of fronts: we need to develop and disseminate progressive interpretations on a wide range of issues; debunk constitutional rationales that use misleading or disingenuous interpretations to mask conservative policy objectives; and communicate our ideas and values in language that is relevant to people’s daily lives. Our work must be focused on both the short-term and the long-term – using the tools we have today to move forward where we can and visualizing where we want to be in twenty years and how to get there.

This effort has a deeply intellectual component. We must think boldly and creatively, and establish objectives that might seem to many today to be unreachable. And we must think rigorously and debate fully to plan the path to our objectives. Such thinking will require that we understand fully the history that led us to this point and that we have a keen and accurate appreciation of where we are.

While this effort will be an intellectual undertaking, it must always remain focused on the practicalities of life, the issues facing lawyers in the courtroom, parents in the workplace, families at worship, young people seeking education, and unfortunately – but for the foreseeable future, inevitably – soldiers on the battlefield. We must think in concrete terms about issues that will shape the broad nature of our society, our communities and our lives on the most personal level. If we succeed, we will win hearts and minds -- of lawyers, policymakers, judges, and “we the people” -- and thereby reshape the present legal and constitutional order, in some cases restoring what once was, in others achieving that which it long seemed never could be, and as a result making our nation more true to the promise of liberty and justice for all upon which it was founded.

We hope that the Constitution in 2020 conference will be the start of an exciting enterprise that will energize moderates and progressives and reshape the law. Through The Constitution in the 21st Century’s issue groups, conferences, publications, website, clearinghouse of accessible materials and blog, we want to engage each of you in this vital dialogue.

The challenge before us is undoubtedly immense. Yes, part of our challenge is political, in the sense that any important and lasting progressive legal or constitutional advances must ultimately either grow out of or come to be supported by millions of people who will never file a motion, publish an article or perhaps even read a newspaper. But we will win that political battle if we are able to articulate our ideas and values in ways that are grounded in our Constitution and resonate with the public. The challenge is here for each of us --– academics, practitioners, advocates and policymakers --– to take up. If each of us joins the effort, we can and will together reframe the terms of the debate and recapture the initiative in defining our fundamental and guiding values. We cannot be daunted by the difficulties of our task. Too much is at stake: our Constitutional heritage, our Nation’s future and the quality of our lives will depend upon our success. So I hope to work with each of you to revitalize our nation’s commitment to liberty, equality and justice, to an inclusive society with genuine opportunities for all and respect for each other, and to a better future.

-- Lisa Brown

Bringing Work Back Into the Forefront -- Post by Robert W. Gordon

This post builds on previous posts by Willy Forbath and Jennifer Klein. My basic point is to simply to echo and amplify their arguments for restoring work – the rights and dignity of workers; wages, job security, working conditions and employment policies; self-organization and participation in workplace governance, social preconditions such as security and education for expanding access and opportunity to good jobs – to the center of the progressive political agenda and its legal and constitutional strategies.

It’s more than a little weird that work has been so displaced from the central concerns of politics, social policy and legal and constitutional rights and powers that anybody has actually to be making these arguments. Most people spend most of their waking hours at work. Much of their identity, status, and practical options in life is determined by their occupations and pay. Work also spills over into everything else: time at work takes away from and puts pressure on time doing other things, family, friends, play, civic association, political engagement. Security or insecurity at work affects willingness to take entrepreneurial risks or demonstrate civic courage. It even affects health: there is evidence that the strains of hierarchy and insecurity at work drastically shorten life expectancy. Also: for many people, perhaps most, the norms and operational practices of workplaces are a standing contradiction to basic liberal ideals of liberty, equality, human dignity, and the elementary mechanisms for making authority accountable -- democratic governance and the rule of law. Workplace order is usually hierarchical and sometime close to dictatorial, and often relies upon minutely detailed disciplinary codes, pervasive supervision, intrusive surveillance, abusive hectoring, and infantilizing and humiliating rules and commands – e.g. requiring workers to ask permission to go to the bathroom, specifying when they can go, timing their visits, and spying on them – all enforced by the threat of (arbitrary, in an at-will world) firing. What would seem in any other context to be unacceptable affronts to dignity, privacy, and autonomy are justified by unexamined and often implausible claims of efficiency and the thinnest veneer of contract – that workers must be taken to consent to everything they are subjected to so long as they don’t exit, even when exit is fraught with cost and potential ruin.

Given the importance of work, and the anomalous position of workplace order in a liberal polity and society, one would expect issues concerning work to be fairly prominent in political and legal controversy; and for most of our history one would be right. Workers and their rights and interests aren’t just key categories in the socialist tradition; they are so in mainstream American liberal traditions as well. One of the central liberal ideals was some version of “free labor”, which was opposed to feudal serfdom, slavery, peonage, aristocracy, privilege and monopoly. The core free-labor ideal was independence, freedom from domination by powerful others, assumed to be a precondition to both republican or “ancient” liberty to participate on equal terms in democratic governance, and to liberty as self-development and self-realization, liberty to make the most of one’s talents, expand one’s capacities, and express one’s personality.

Some parties thought some very minimal set of conditions would satisfy the ideal: suffrage for free white males, anti-monopoly policies producing mostly competitive markets, legally free exit from employment, opportunities to work one’s way up to self-sufficiency. Others pressed for more expansive conditions: an egalitarian distribution of initial property and skill endowments (e.g. through homesteads, estate taxes breaking up inherited concentrated wealth, universal public education etc.), which would both help to equalize opportunity and give free citizens a base of security and self-sufficiency to resist domination; and organizations of craft workers equipped to bargain on equal terms with factory managers, rights to organize, strike, picket, and boycott. The terms of the debate kept changing with new technologies, economic conditions and forms of work organization: e.g. as the family farm disappeared, social insurance against common hazards of life, workplace, injury, unemployment, disability, inadequate retirement savings, death or injury of a household provider replaced the property in land as the basic form of security endowment. After the Great Depression it was assumed that the governments had some responsibility to alleviate unemployment, at least through counter-cyclical fiscal if not aggressive full-employment-promoting policies; to establish minimum labor standards; and to regulate workplace organization and collective bargaining; though how much responsibility, and how it was to be exercised, was always of course controversial.

These disputes eventually entered, of course, into constitutional argument: was the regulation of slaughterhouses or of professions a denial of basic liberty rights to choose one’s occupation? were the regulation of wages and hours or statutory prohibitions on yellow-dog contracts a denial of employers’ and employees’ liberty of contract? did legislative protection of the right to strike, or legislative restriction on labor injunctions, or the Wagner Acts’s protections for labor organizing and mandates to bargain in good faith, protect workers’ liberties to engage in free bargaining or infringe the employer’s liberty to run his business as he saw fit and non-union workers’ rights to make their own contracts? Were southern planters’ attempts to keep farm labor tied to land through criminalizing contract breaking and crop-lien laws legitimate modes of contract enforcement or instruments of peonage?

I’d be interested in hearing from others why they think, given this very long history in which labor and its rights and interests were so dominant, that work, workers’ rights, unemployment, labor regulation, etc. have mostly disappeared from the top of the liberal-progressive political agenda – with the notable exception of employment discrimination, the post-1970s offshoot of civil rights law. Why, for example, are the only live legal issues and set of actionable claims having to do with bosses’ humiliating treatment of workers limited to sexual harassment? Why are wage stagnation and the erosion of employment-related benefits not burning issues in political campaigns? (I have a list of possible explanatory factors but would like to add to it.) The fading-out of the liberal work-related agenda is especially striking because it is clearly still central to conservative strategies: to undercut what little remains of the Wagner Act’s protections of labor organization; to keep down the minimum wage; to enable employers to reclassify jobs to exempt them from overtime pay; to gut labor protections in trade agreements; to cut back still further on occupational safety-and-health standard-setting and enforcement; to exempt illegal immigrants from basic labor protections; to use layers of subcontractors to escape accountability for foreign labor conditions; to weaken enforcement of antidiscrimination and family-leave laws; to reduce workplace benefits and shift the risks of disability and the burdens of insurance onto workers; to use “tort reform” to shift the burdens of occupational disease and toxic harms, and “tax reform” to shift the burdens of taxation onto wage workers while lobbying against policies to socialize such risks; etc. The aim seems to be to produce a kind of new feudalism, in which an oligarchy of managers, professionals and investors are serviced by a low-wage service class that has to bear all the risks, harms, and insecurities of capitalism; to fragment and privatize the social-insurance system by replacing universal programs with privatized ones financed with tax breaks or stingy, crummy means-tested public systems for everyone who can’t afford them. In this world low wages, insecurity of employment, high unemployment rates, immigrants without regular legal status, and a crummy social safety net are all good and useful because they tame wage demands, suppress worker militancy, and produce a cowering, fearful, servile workforce.

You get the picture, and it’s not a pretty one. The only point I’m pressing for here is to get this cluster of issues back on the liberal agenda. Social insurance in this view is vital to liberty, because it’s the equivalent of old-fashioned property; it’s what enables the worker to speak frankly and as an equal to the abusive boss. Workplace organization is vital to voice and participation in self-rule and the ability to protect against abuse and humiliation at the workplace, as Jennifer Klein says. These issues have had constitutional or quasi-constitutional locations in the past (the “free labor” campaigns against slavery and indentured servitude; the discussions of workplace conditions in the debates over, and later enforcement actions under, the 13th Amendment and peonage statutes; labor’s attempt to give constitutional status to the right to strike; the –futile, as it developed – attempt to take labor out of the definition of “property” protected under the 14th Amendment in the Clayton Act; the attempts to make Wagner Act protections into a super-statutory charter of workplace liberty, etc.). It does not seem so important at the moment to find an exact location in the legal/constitutional universe for rights of workers, rights at work, rights to forms of security that will underwrite liberty and equality at work, the practical means to be free of the domination of family and civic lifeworlds by the pressures and demands of work, etc. an exact location in the legal/constitutional universe as it does to restore them to their proper place in progressives’ central concerns.

The interests of working people ought to be a natural focus for political advocacy and organization, since they include pretty much everyone from the upper middle class on down and transcend the divisions of identity politics. In the last presidential election only John Edwards (ably advised on these themes by our conference colleague and my namesake Robert [M] Gordon) really campaigned around these issues. But they are fundamental – might I say “constitutional” in the sense of basic, structural -- issues of principle: what can liberty and equality rights possibly mean as a practical matter if they must be suspended for most of the day, and undermined by fear of falling into catastrophe if a job is lost?

-- Robert W. Gordon

Friday, April 01, 2005

Post by Martha Minow

Is it just the happenstance of the current political constellation that makes me and some others dubious about turning to the U.S. Constitution and judicial interpretation to revitalize and enlarge social and economic rights, or for an even larger vision of the good life? That may be. The organizers of this conference rightly urge us to take the long view. So I remain open to what others will argue. Still, precisely when invited to think of the Constitution in 2020, I find myself hoping for the divided power that permits pluralist visions -- and more oomph for the preconditions for political engagement -- rather than a wish-list of substantive rights or a portrait of the communal good. I don’t think it is just the political grandstanding over Terri Schiavo’s fate that makes me so cautious about ambitious proposals for new federal constitutional rights, though that’s not a bad touchstone for the worries I have over whose picture of rights are we at risk of entrenching.

Dividing power among the judiciary, Congress, and the executive and its agencies does not only have the virtue of slowing things down – a virtue I value more as I watch what wild-fire in politics looks like. It also better suits and supports our pluralist society, with multiple and rival views of religion, culture, family life, and moral ideas. As some 1 million new immigrants come here each year, our city schools become crossroads for nations; minority status is just around the corner for white Americans; disagreements over how to raise children, how to dress, and who deserves authority can flare up and fragment us. We need to strengthen the public framework for inclusive liberty. But the operative word here is liberty, with sufficient equality to ensure that it is shared.

Meantime, developments in biology, genetics, and medical treatment ensure that the next 15 years will be ones pushing the boundaries of reproduction, life, and death. This seems a time for caution in what we install as constitutional rules about each of these vital matters while permitting individuals and localities to experiment with the new possibilities. No less potentially transformative are the changes in information technology and communication, with potentially seismic disturbances to the prospects for speech, copyright, and other kinds of ownership. Here, too, it seems what we most will need will be room, not new fundamental rights: room for new initiatives to improve access to speech and information, personal and workplace privacy, and forms of sharing that still reward investment. The Congress must have latitude to enact laws that go beyond what the Court has yet announced as fundamental rights in these areas. The Court must not further curb Congress, as it has in City of Boerne v. Flores, Kimel v. Florida Board of Regents, United States v. Morrison and related cases. But this is because the Congress should share with the Court the opportunity to chart protections for equality and liberty, not because the Congress should have the final word on their scope.

Canada’s “notwithstanding clause” jurisprudence has preserved more room for the parliament and the provinces than our Constitution has kept for Congress and the states over tough issues like abortion and language rights – while putting the burden on the political actors to resist judicial articulations of rights. Perhaps there are ways we too could promote more dialogue among the branches and between the federal and state governments about controversial issues while putting the heat on the political actors who want to resist the more vigorous protections of individual liberties.

Similarly, the Congress and the states should be assured latitude to extend public duties (such as the Freedom of Information Act and even due process protections) alongside galloping privatization of governmental functions. Legislative and contractual extensions of public duties would be wiser, though, than constitutional declarations, even were judges inclined to sort out the strange and ragged state action doctrine. Again, it’s too soon and too hard to know what the right lines should be, so room for experimentation should be claimed. Any line between public and private may be incoherent. But 15 years from now the notion of the private will be if anything more vital to personal freedom, critical perspective, and experimentation as we become linked by the Internet (and web-site cookie), GPS, retinal scans, and the next inventions that we do not yet imagine.

My caution about a constitutionalized good life may also come from the sense that on this, the day after Fred Korematsu’s death, the U.S. Constitution looks a bit better than it did when it offered him no protection against the exclusion of all persons of Japanese ancestry from their homes. The state of war is not a blank check for the President when it comes to treatment of citizens, said the Supreme Court in Hamdi v. Rumsfeld in 2004; non-citizens too deserve protections, wrote the court in Rasul. Last week, we learned that the “Founding Fathers’ blueprint for governance of a free people” does not authorize Congress to override the wish of Terri Schiavo as communicated by her husband and adjudicated by state courts. So concluded the fourth federal appellate panel to consider her parents’ request to reinsert her feeding tube. Adults must be able to choose to enter intimate relationships in their homes and their private lives and “still retain their dignity as free persons,” Justice Kennedy wrote in 2003 for four other justices in Lawrence v. Texas.

The Constitution in each instance guided judges to set restraints on what elected and appointed officials, even with good purposes, may do if they jeopardize individual liberty, dignity, and equality. Of course, others emphatically criticize these decisions as 1) intrusive impairments of the executive’s ability to move against terrorism, 2) the spreading culture of death embraced by courts that permit abortion and allow states to experiment with physician-assisted suicide; and 3) the imposition of the homosexual agenda against the views of a majority of Texans. What makes the prevailing views right and legitimate rather than simply the results favored by my team? I tell myself: these results are right because they advance views of liberty, dignity, and equality that expand rather than contract, that reach more rather than fewer people. It may also be that the courts in these cases are not diverging far from engaged political majorities; that the constitutional jeopardy facing the nation is the Supreme Court’s recent tendency to foreclose Congressional efforts to effectuate equality; that the decisions deeply reflect who the judges are and that all could change in the next period of time.

It is hard not to conclude that the crucial work for the next 15 years is straight out political: keep the Senate filibuster to block drastic change in the Supreme Court; take back the White House and the Congress; tap the support for personal liberty and fundamental decency of the American people in order to resist capture by manipulated fears of terrorism or extremist minority views of morality. The Constitution in 2020 will be more likely to reflect whether progressives successfully reform campaign finance, voting practices, and media treatment of politics over the next few years than any list of substantive ideals we produce together. Here it seems we need to work vigorously to link grassroots and national efforts, to mobilize the marketing power of voting machine makers who have devised secure and reliable instruments for other countries, and to look to best practices around the world. I am not sure how much constitutional as opposed to political work this involves, but this part of the agenda – new politics? Democratic politics? – seems crucial.

For the politically unpopular and disenfranchised – including detained immigrants, children, and literally disenfranchised ex-convicts – we do need to ramp up affirmative constitutional aid. Why shouldn’t we make an agenda that includes a federal constitutional right against coercive interrogation, a federal constitutional right to education, and a federal constitutional right to regain the franchise? Here, let’s put opponents on the defensive. We can argue that the legitimacy and effectiveness of the entire constitutional democracy depends upon the possibilities of political engagement. Let’s frame our arguments as the defense of democracy and freedom, because that's what they are.

-- Martha Minow