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