Looking to state constitutions

Sandy Levinson

Too many members of the American legal academy--and, for that matter, political scientists who study "constitutionalism"--are almost willfully ignorant of what John J. Dinan calls The American State Constitutional Tradition. His excellent book has just been published in paperback by the University of Kansas Press, with a foreword by yours truly. Having assigned it in a course I'm giving this semester at Harvard College, and will give next semester at the University of Texas Law School, I can attest to its pedagogical excellence. He analyzes various debates held at a multitude of state constitutional conventions and thus provides an easy way for students immediately to appreciate what can be said pro and con about, say, bicameralism, various forms of gubernatorial veto, direct democracy, or how to select judges, among other things. My own view is that everyone should read Dinan's book, but it is especially important for academics to do so.

The debates about the Constitution in 2020 (or 2030, or whenever) are still unfortunately fixated almost exclusively on the United States Constitution, and mavens in comparative constitutional law are most likely to look abroad, which allows people like Justice Scalia to accuse them of being unAmerican. It is literally incoherent to say that one is unAmerican in looking to American state constitutions for potential wisdom. One might begin with Nebraska's wise (and "progressive") decision to abolish its Senate in 1934! Or consider the fact that the overwhelming number of states are distinctly "non-unitary" in organizing the executive branch, with separately elected governors and attorneys general (for starters). This provides a level of oversight of potential executive overreach that certainly does not obtain, by and large, at the national level of government, especially, of course, when the AG comes from a different political party. With regard to "progressive constitutionalists," it is surely relevant that many state constitutions guarantee "positive rights," the most important one being education (and, consequently, one can find a lot of interesting data on whether such guarantees are simply "parchment promises" or in fact serve as the basis for either strong judicial enforcement or create a "constitutional culture" that leads legislatures to behave responsibly).

Most interesting, from my perspective, is that 14 state constitutions require that the electorate be offered the opportunity, at stated intervals, to vote yea or nay on whether to have a new constitutional convention. This is only one of the many ways that state constitutions may be closer to the best part of the American political tradition in that they actually express some actual trust in the ability of "we the people" to govern ourselves. I continue to believe that contemporary American "progressivism" will flail in the wilderness until its adherents break free of their de facto Hamiltonian fear of "the people" and actually emulate some of the right-wing populists who have no such fears. And if we emulated many state constitutions by having a legislative initiate and referendum, we wouldn't be at the mercy of the Baucuses and the idiotic filibuster rule that makes meaningful legislation near impossible. Isn't it ironic that the i&r in California was supported by early 20th century "progressives"? There are problems with i&r, to be sure, but wouldn't it be interesting to see what might happen in our truly dreadful Senate if a national movement developed that threatened to strip them of their power to kill any and all legislation they don't like, whatever its degree of support from the House of Representatives or the White House? A more "moderate" approach, drawn from many of the other countries around the world that have bicameral systems, would be to have some procedure to break deadlocks between the two houses. We have the worst of all bicameral systems, where a totally malapportioned Senate that fails any 21st century test of "one person/one vote" is also able to kill legislation with no recourse. As Bob Dole might say, where is the rage? Or is there a consensus that we're simply stuck, in 2020, 2030, and thereafter, with the institutions we have, so that there is literally no point even in pointing out their relevance to actually being able to achieve what "progressives" legitimately want.

Although I'm allowing the posting of options, I truly hope that those of you who aren't "progressives" will refrain from bothering to comment how much you admire the ability to the Senate to block legislation. I'm sure you do. That can be taken as a given, and it needs no further expression. What interests me is why self-identified "progressives" would be equally accepting of the institutional status quo. Given that most "progressives" necessarily live in states with constitutions quite different from the U.S. Constitution, I'm curious if they would necessarily trade in their state constitutions for the national one. If they actually like their state constitutions, then why not look to them as potential templates for reform of the national version?
Posted 5:11 PM by Sandy Levinson [link] (26) comments

“Social Rights”

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Risa L. Goluboff

For the past several weeks, I have been puzzling over the nature of the rights that my panel will address at The Constitution in 2020 conference. The panel is entitled “Social Rights”—which echoes the section of the book that I assume we are to discuss. My first instinct was that the panel would be populated with those who have thought a good deal about race, race relations, and racial equality. To my surprise, however, my fellow panelists are people who have thought a good deal about economic issues, labor organizing, and social insurance. To me, these topics—which are indeed largely the concerns of the “Social Rights and Legislative Constitutionalism” chapters of the book—would more likely come under the rubric of “economic rights.”

My puzzling, then, has largely been about terminology. Two distinct origins of “social rights” come to mind. The first comes from 19th-century American history. The common delineation of rights into the categories “civil, political, and social” in the Reconstruction era is a frequently defining principle not only of that era but of the Jim Crow era that followed. Within that tripartite conception of rights, civil rights meant those commonly protected by the common law: rights to contract, hold property, and protect one’s property in a court of law. Political rights concerned the relationship of a person to his or her government, largely involving voting but also at times jury service. Social rights, finally, referred to rights to interact in the ordinary settings of social life, to choose one’s place in a restaurant, a neighborhood, a school.

Protection of African American rights in the wake of the Civil War and Reconstruction generally waned as one descended the ladder from civil to political to social rights. Civil rights received the earliest and most vigorous (albeit still inadequate) protection. Political rights faced greater contestation, and greater evisceration, but still found some basis in the Constitution. Social rights were the runt of the litter. As the Supreme Court made clear in its infamous decision in Plessy v. Ferguson, social rights were beyond constitutional redress. Indeed, some would have said that the essence of a social right was precisely its inability to be remedied at law. The understanding of the time was that labeling the right to sit in a particular railroad car a social right removed it from the realm of enforceability.

These labels were, of course, always fuzzy, slippery, and contestable. And they changed over time. In the 1930s, civil rights became associated closely with labor rights and rights to economic security. In the 1940s, such rights seemed constitutionally salient and possibly attainable. Social rights, however—like the right to integration—remained largely beyond the pale. Once rights that had been thought of as social rights began to gain traction in courts and legislatures, the nomenclature changed. No longer did we speak of “social rights.” They somehow became transformed, along with newly enforced political rights, into a unified category of “civil rights.” It would be too simple to say that “civil rights” encompasses those rights that are generally viewed as enforceable. But it does seem fair to observe that once social rights became protectable, they also ceased in important ways to be understood as social rights.

My second association with the term “social rights” comes from the international human rights context. There is a robust and growing literature on the relationship between American ideas about rights and international ideas about rights, between “civil rights” at home and “human rights” abroad. Much of this literature emphasizes how stingy the American conception of rights is. In response, scholars and activists have sought to expand American conceptions of rights by integrating broader understandings of international human rights into the domestic context.

This origins story refers to the kinds of “social rights” included in the International Covenant on Economic, Social and Cultural Rights—rights to work, housing, health care, social insurance, education, and the like. In the international human rights context, “economic, social and cultural rights” or “ESC rights” stand in sharp contrast to “civil and political rights.” These two categories of rights each has its own international covenant, its own monitoring committees, and its own orbit. Moreover, each has its own distinctive political salience. Although the United States has ratified the International Covenant on Civil and Political Rights (with exceptions, of course), it has never ratified the International Covenant on Economic, Social, and Cultural Rights. Indeed, the existence of the two conventions was a product of differing international opinions about the desirability and enforceability of economic, social, and cultural rights.

What has all this to do with The Constitution in 2020? A lot, it seems to me. A major theme of the chapters in the “Social Rights and Legislative Adjudication” section of the volume is the judicial unenforceability of “social rights.” With some minor exceptions, the authors of these chapters have largely given up the possibility of constitutionally based, judicially enforced rights to work, housing, health care, social insurance, and education. Some still retain a shred of hope for judicial involvement in the provision of such goods, others despair that such time has come and gone, and others affirmatively seek legislative alternatives. But overall, the view that these rights are consigned to the political branches is rather overwhelming.

On one level, I was surprised by this surrender. The Constitution in 2020 is an ambitious volume, reimagining a progressive Constitution for the future. Whatever the relative merits of legislative versus adjudicative constitutionalism, one might expect an aspirational, progressive project to include a more robust commitment to some form of constitutionally enforceable economic rights.

On another level, however, I was not surprised. The section of the book and the title of my panel—with its nomenclature of “social rights”—already tells us that these rights will be different. Whatever the origins of “social rights” they share one fundamental characteristic: they are unenforceable. Perhaps “social rights” sounds more palatable than the still-Communist-inflected “economic rights.” Perhaps it sounds more malleable and open to debate than “positive rights.” I imagine there are good reasons to use the term. Even so, I cannot but conclude that any attempt to provide judicially enforceable rights to the kinds of goods encompassed by the term will face as their first and most enduring obstacle the term itself.


Posted 10:32 AM by Guest Blogger [link]

Locating Union Rights

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Ben Sachs

The labor movement has long pined for the constitution, but the story of constitutional protection for workers’ collective rights is one of disappointment.

The peak moments of constitutional intervention into union activity have been moments of hostility: most famously, early 20th Century courts invalidated scores of statutes that aimed to insulate workers’ collective action from employer retributions. When workers sought affirmative constitutional protection for their collective activities, the reception has been lukewarm at best.

With this history in mind, I join Richard Ford in the view that, when it comes to workers’ ability to engage in collective action to improve their lives, the Constitution is not the most likely source of progress for the 21st century. I also join Ford in thinking that progress for workers in the 21st Century, just as in the 20th, will depend on political and legislative action, and that what we need the constitution to do, in the main, is not to interfere.

Today, substantive due process is no longer an impediment to workers’ collective activity, and the Court long ago found room in the Commerce Clause for federal regulation protecting unions. One major contemporary impediment to advancing workers’ collective rights, however, has constitutional roots: the preemption of state and local law. (There may well be other constitutional hurdles in the months and years ahead. The possibility that employer speech rights will be implicated by amendments to the Employee Free Choice Act, and that non-delegation arguments will be made against the proposed interest arbitration provisions of that bill, are two of the more obvious possibilities.)

Preemption in the labor context is robust: any state or local law that “arguably” touches on a matter governed by the National Labor Relations Act is invalid. Attempting to find room within the very narrow exceptions to this doctrine, states, counties and cities have made modest attempts to modernize the rules of union organizing. Nearly all of these efforts have been invalidated on preemption grounds.

More important than the state and local laws that have been struck down, however, are those never attempted. Given the mismatch between the contemporary organization of the economy and the contours of our federal labor law, the possibility for – and the call for – experimentation is obvious. How about allowing “minority” unions which bargain solely for their members? How about mandating labor-management committees in all workplaces of a certain size? How about, in the name of giving workers not only a “free” but an informed choice on the union question, allowing unions and management to negotiate collective bargaining agreements prior to the organizing campaign? What about banning the permanent replacement of striking workers? Real experimentation of this sort is flatly prohibited by preemption rules, so local governments don’t even try. But this kind of experimentation could yield significant results and teach us a great deal about the implications of different courses for reform.

Opening up the possibility for state and local experimentation in labor law makes sense for a set of reasons independent of the particular impact that reforms would have on workers’ collective rights – including the possibility that experimentation would point us toward a more tailored and context-sensitive legal regime that better advances the interests of both employers and employees. I do not have room to discuss these reasons here. With respect to the collective rights of workers – the relevant topic for this forum – several observations are important. Most obviously, with less federal preemption, states and localities would be free to move in any number of directions. Some would legislate to expand protections for workers’ collective activity, others would attempt to restrict that activity. Common law claims would also be back in play. Here, unionism could be attacked (on the grounds, for example, that it constituted tortious interference with contract) or defended (employees discharged for attempting to organize could sue for wrongful discharge on the ground that the terminations were in contravention of public policy).

As a practical matter, the severe limitations of the federal regime (probably even a post-Employee Free Choice Act regime) mean that it would be much easier for states to make things better than worse. In many states, rates of unionization are so low that even an outright ban would not have a terribly large effect.

Nonetheless, defining and then designing an optimal preemption regime will require careful attention. If we intend the regime to facilitate experimentation while also ensuring that some basic protections remain in place for all employees, federal law will need both to allow for state innovation and to establish a floor – or baseline – of collective rights. The Constitution could fulfill this role: for example, the associational rights contained in the First Amendment might be read as precluding states and localities from simply banning unionization and related forms of collective action. But a new express preemption provision in the federal statute itself is the more likely, and better, bet.



Posted 10:32 AM by Guest Blogger [link]

Linking Political Equality and Social Rights

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Jacob Hacker

I share the assessment of the eminent legal scholars writing in The Constitution in 2020 that constitutional law and the judiciary offer limited promise as means of remedying the economic inequality and insecurity that are so much a part of contemporary America. But it will not do, I think, to end the assessment there. In the fraught history of social rights that William Forbath tells, there is also a larger moral about the kinds of appeals that such a movement must make if it is to succeed. The moral is that these appeals have to be grounded in an articulated vision of citizenship that makes clear why widespread economic inequality and insecurity is so starkly at odds with political equality.

This a deeply American way of approaching the problem—far more so than the idea of positive rights—and it has a long and distinguished lineage in democratic thought. Indeed, for centuries, the dominant assessment of the problem of economic distribution in a democracy saw the concentration of property and power at the top of the economic pyramid as dangerous to democracy precisely because it raised the prospect of a wealthy oligarchy corrupting political institutions.

During the Founding period, the concern that the wealthy would gain undue influence coexisted with the well-documented worries about the tyranny of the propertyless majority. The Founders saw the new American republic as marked by a highly favorable starting point: a distribution of property much broader than that found in the class-bound Old World. And they were convinced that preservation of this broad distribution was not just good in itself but essential to the institutional functioning of democracy. To be sure, they feared challenges to private property from below, but they also feared the rise of an aristocracy, which they believed just as fatal to an independent democratic republic.

New life was breathed into this perspective during the Jacksonian era (“the rich and powerful too often bend the acts of government to their selfish purposes” remain the most remembered words of Jackson veto of the national bank). Yet it rose to its greatest prominence during the Progressive Era. Progressives were alarmed about the growing concentration of wealth and income and the increasingly evident social costs of industrialization. What worried them most, however, was the distortion of politics by private economic power, the translation of economic inequality into political inequality, which in turn reinforced economic inequality. Vast excesses of wealth meant vast excesses of power, a reality directly at odds with the promise of political equality.

Running as a third-party candidate in 1912, Theodore Roosevelt summed up the critique in a famous broadside against “special interests”:

The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man’s making shall be the servant and the not the master of the man who made it. The citizens of the United States must effectively control the mighty commercial forces which they themselves have brought into being….The absence of effective state, and, especially, national restraint upon unfair money getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power.

The next Roosevelt in the Oval Office, facing down the greatest economic crisis the nation had ever seen, put the point even more sharply:

For too many of us the political equality we once had was meaningless in the face of economic inequality. A small group had concentrated in their own hands an almost complete control over other people’s property; other people’s money; other people’s labor—other people’s lives. For too many of us life was no longer free; liberty no longer real; men could no longer follow the pursuit of happiness.

Against economic tyranny such as this, the American citizen could appeal only to the organized power of government. The collapse of 1929 showed up the despotism for what it was. The election of 1932 was the people’s mandate to end it. Under that mandate it is being ended.

The Progressive critique was rooted in the classical republican view, but also gained power from the rise of legal realism, as Cass Sunstein and others have noted. Legal realism insisted, rightly, that markets are inevitably shaped and channeled by political forces, dependent on the rules that are set up and enforced by those who control the coercive power of the state. And the legal realists also rightly argued that walling markets off completely from redistributive and regulatory demands required at least as strenuous an exercise of government power as intervening in them. Laissez-faire is a political choice, one with distinct and sometimes unpleasant consequences, and one that requires a great deal of government intervention to arise and survive.

Lest this critique be seen as deeply radical in spirit, it is worth quoting a little-noticed passage in Adam Smith’s 1776 The Wealth of Nations, now viewed as the bible of limited-government free-market economics. “Wherever there is great property,” Smith wrote, “there is great inequality. Civil government, so far as it is instituted for the security of property, is in reality, instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.” A clearer statement of the legal-realist view of a century and a half later would be hard to find.

The fact that markets are constructed through public policies and shaped by democratic politics—and therefore that they could be reshaped to produce better outcomes—was a central observation of progressive reformers in the early twentieth century. It should also be a central argument of today’s progressives. So it is important to understand what it means and does not mean. It does not mean that democratic politics always produces well-functioning markets, or that government intervention is always justified or desirable. Rather, it is a more fundamental point. For good or ill, democratic politics makes markets. The debate over good or bad economic policies should not be over whether government is involved, for it always is. The debate should be over whether it is involved in a way conductive to a good society.

For the Progressives, the answer to that question in the early twentieth century was no, as it should be for progressives today. Policies passed in the name of free markets and justified with reference to the sanctity of private property had the effect of creating markets that were mainly in the interests of a narrow economic elite. Efforts to address these inequities were blocked in legislatures highly attentive to business concerns. Where laws promoting social reform were passed, they were thrown out by the courts. Greater economic inequality led to greater political inequality, which in turn led to government policies that reflected the interests of those at the top, worsening or at least hardening class divisions. Swamped by the tides of inequality and insecurity, democracy was giving way to oligarchy—the very concern that the recent dramatic growth in inequality and our present economic crisis have cast in stark relief.

The implication, hopefully obvious by now, is that efforts to reduce inequality can be justified not just on egalitarian grounds, but also on democratic grounds. As the political scientist Sidney Verba has written, democracy is based on the ideal of equal potential consideration of every citizen’s interests. In theory, this ideal is compatible with vast inequalities in other spheres of social life. Even the poorest citizen has the formal right to vote, after all. The problems arise when large and growing resource inequalities translate into substantial, cumulative, and self-reinforcing inequalities of political power. Sadly, these sorts of political inequalities have become increasingly apparent in American democratic practice.

This is not the place to lay out all the reasons for my concerns. Instead, I will merely refer readers to the work of the American Political Science Association’s Task Force on Inequality and American Democracy, of which I was part. The Task Force considered the effects of growing economic inequality on democratic practice from a variety of perspectives and drawing on a huge range of cutting-edge research. Its conclusion was that growing inequality did indeed threaten political equality in the United States:

Generations of Americans have worked to equalize citizen voice across lines of income, race, and gender. Today, however, the voices of American citizens are raised and heard unequally. The privileged participate more than others and are increasingly well organized to press their demands on government. Public officials, in turn, are much more responsive to the privileged than to average citizens and the least affluent. Citizens with lower or moderate incomes speak with a whisper that is lost on the ears of inattentive government officials, while the advantaged roar with a clarity and consistency that policy-makers readily hear and routinely follow.

What we have, in short, is a classic story of cumulative advantages—people who have more are being heard more by political leaders, and what government does reflects that. The political scientists Larry Bartels and Martin Gilens have found, for instance, that the votes of elected representatives and the direction of public policy are both vastly more responsive to the opinions of high-income citizens (as measured by surveys) than they are to the opinions of Americans of more modest means.

In sum, we should challenge the stark economic disparities of our day not just because they challenge our moral sensibilities, but because they pose a direct threat to political equality. And we should also challenge them because, contrary to the anti-government rhetoric of the last generation, public measures to expand economic equality and security can materially improve the quality of democratic citizenship. Indeed, as the Task Force on Inequality and American Democracy reports, some of the most vibrant examples of twentieth-century American public policy—the GI Bill, support for collective bargaining between management and unions, Social Security—were successful not just in reducing economic inequality, but also in empowering citizens. By providing Americans across the income spectrum with resources, skills, and motives for democratic citizenship, each of these policies substantially evened out disparities of participation and influence in American politics, helping to reinforce the broad-based character of postwar prosperity.

We would do well to embrace this goal again today.



Posted 10:30 AM by Guest Blogger [link]

John Finnis on Hart, Homosexuality, Immigration, and the Decline of Western Civilization

Brian Tamanaha

Natural law philosopher John Finnis, of Oxford and Notre Dame Law School, thinks Western societies are quickly going to pot, and he lays some of the blame for this on sexual permissiveness (including homosexuality) and on loose immigration policies. These claims can be found in his recent essay on the political philosophy of H.L.A. Hart:

European states in the early twenty-first century move ever more clearly out of the social and political conditions of the 1960s into a trajectory of demographic and cultural decay, circumscription of political, religious and educational speech and associated freedoms; pervasive untruthfulness about equality and diversity; population transfer and replacement by a kind of reverse colonization; and resultant international fissiparation foreshadowing, it seems, ethnic and religious inter-communal miseries of hatred, bloodshed and political paralysis reminiscent of late twentieth century Yugoslavia’s or the Levant’s.

That is a dire prognosis.

Much of Finnis’s essay is taken up with a critique of Hart’s Law, Liberty, and Morality (1963), which argued against the criminalization of private, consensual, sexual behavior—homosexual behavior in particular. Hart’s argument, simply put, is that restrictions on natural sexual impulses exact a high cost on individuals (affecting “the development or balance of the individual’s emotional life, happiness, and personality”); consensual private sexual conduct does not harm others; the state lacks a weighty justification to restrict it. Hart’s argument takes on added poignancy in light of the recent disclosure by his biographer that he acknowledged having homosexual attractions.

Finnis grants Hart’s argument that private homosexual conduct should not be criminalized, but he nonetheless insists that law can and should condemn homosexuality in various ways (although he does not specify, presumably this would include not allowing homosexual marriage or adoption). This is appropriate, he suggests, because homosexuality is immoral and potentially harmful to society:

To take up the issue on which Hart chose to focus—those who actually judge homosexual acts, like other non-marital sex acts, immoral, while they might grant that the private homosexual sex acts of two already morally corrupt adults in private do no harm, can argue with force that predisposing children to approve of adult homosexual acts, and to be disposed to engage in them when of age, is gravely and unjustly harmful to the child and to society, since it involves the child, and eventually perhaps the society, in a gross misunderstanding of the contribution sex acts have to make—and of the act-descriptive conditions without which such accts cannot make it—to marriage as the indubitably most favourable and fairest milieu for the procreation and upbringing of children and for the lifelong fulfillment of the married persons themselves.

It’s hard to read this argument (he elaborates further along the same lines) without seeing the strong echoes of two articles of faith in the anti-homosexual campaign in the United States. The first claim is that homosexuals pose an imminent danger to our youth: by sexual guile (or the offer of candy?), they corrupt heterosexual young people into becoming homosexuals. The second claim is that homosexuals pose a threat to marriage—either by breaking up existing marriages (seducing one of the partners), or because homosexuals would be happily married themselves if they did not indulge their homosexual desires.

These claims have always struck me as fatuous, resting, as they do, on the empirically dubious notion that one can be “converted” into or out of homosexuality. (Hart raised this same doubt in his original essay, 67-68). Human sexuality is complex and comes in many shades, but it seems clear that a core homosexual or heterosexual orientation is not fundamentally subject to "conversion."

Finnis does not put it so baldly, of course, as his essay carries on in a properly philosophical tone. But reading it prompted me to wonder about the extent to which moral arguments by philosophers amount to common prejudices (or their own unexamined assumptions) dressed up in fancy attire.

His comments about immigration could have been uttered by a European Lou Dobbs: the “community’s medium-term survival” is at risk because Europeans are not procreating enough, and owing to their “replacement, as a people, by other peoples, more or less regardless of the incomers’ compatibility of psychology, culture, religion or political ideas and ambitions, or the worth or viciousness of those ideas and ambitions.”

Said many times by doomsayers in the past, and frequently repeated by cultural-nationalist populists today, Finnis shrilly warns about the imminent demise of (European, Anglo-American) civilization posed by the aliens at the gates, the yellow peril, the Muslim hordes, the Mexican laborers…a collapse facilitated by the internal rot of moral decay and sexual debauchery.



Posted 1:07 PM by Brian Tamanaha [link] (45) comments

Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Richard W. Garnett

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea. Here it is: Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities. The Jacobins were wrong. In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

The contributions to the volume dealing with politics, democracy, and expression – in particular, the essays written by Robert Post and Yochai Benkler – are sensitive to the structures through which we participate in politics and engage in protected, democracy-enhancing speech. They are attentive, in other words, to the infrastructure that is required for the exercise and maintenance of cherished freedoms.

Well, like the freedom of speech, religious freedom has and requires an infrastructure. Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience. The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them. The values and goods that the First Amendment’s Religion Clauses are today understood to embody and protect—and, we can usefully refer to this cluster of goods and values as “religious freedom”—are well served by a civil-society landscape that is thick with religious institutions and associations, and by legal rules that acknowledge and capture their importance. These institutions contribute to—they do not only benefit from, and they are not only protected by—the reality of religious freedom under law.

The theories and doctrines we use to understand, apply and enforce the First Amendment’s religious-freedom provisions should reflect and respect this fact. They should not be constructed solely to deal with the problems that were the focus of the thoughtful essays on religious liberty contributed by Noah Feldman and Bill Marshall, namely, the task of identifying the bounds of permissible religion-regarding spending or expression by government. Religious liberty, fully understood, involves not only the immunities of believers but also what was once called “the freedom of the church.” And, as Feldman and Marshall explain, the separation of church and state involves legal arrangements and constitutional constraints whose point is not so much to artificially exclude religious faith from our civil and political lives as to respect religious institutions’ independence and autonomy.

In my view, if we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Chip Lupu and Bob Tuttle once put it, whether “religious entities occupy a distinctive place in our constitutional order.” I believe they do, and should. Today, though, American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences, and practices. The distinctive place, role, and freedoms of groups, associations, and institutions are often overlooked. This pattern is consistent with the widespread assumption that, because the individual religious conscience is and must be free, religion itself is entirely private. However, an understanding of religious faith, and religious freedom, that stops with the liberty of conscience, and neglects institutions and communities, will be incomplete. And, so will the legal arrangements that such an understanding produces.

Indeed, it could be that the Supreme Court’s Religion Clauses doctrine is famously confused and confusing, not because religion is inherently “divisive,” not because scholars disagree about the content and relevance of the First Amendment’s original meaning, and not because that doctrine is the product of changing groups of judges, appointed by Presidents of different parties, with a range of values and commitments. Instead, it could be that our constitutional doctrine and our thinking about religious freedom under law do not reflect, capture and translate very well the importance of particular institutions in the constitutional order and to the values that the First Amendment should serve.

Now, how does the infrastructure of religious freedom work? How, exactly, do churches (and the like) shore up (and not just find shelter within) the freedom of religion? It is clearly not by supplanting the freedom of the individual religious conscience as the ultimate beneficiary of religious freedom under law. Quite the contrary. As I have spelled out in more detail elsewhere, the existence and independence of religious institutions long served, and is still needed today, as – in John Courtney Murray’s words – the “social armature to the sacred order,” within which the individual human person could be “secure in all the freedoms that his sacredness demands.”

Of course, the days are long gone – and 2020 will not bring them back – when we could speak of the Church as the chief rival to, check upon and sometimes close partner with the State. Today, in our religious-freedom doctrines and conversations, it is likely that the independence and autonomy of churches, and of religious institutions and associations generally are seen as deriving from the free-exercise or conscience rights of individual persons rather than as providing the basis for the exercise of those rights. (Indeed, many would say, and perhaps celebrate the fact, that institutions are becoming less important to our religious, or “spiritual,” lives.) It remains the case, though, that the existence and independence of religious institutions are needed to – quoting Murray again -- “check the encroachments of secular power and preserve [the] immunities” of our “basic human things.” Murray was right to worry that the individual conscience, standing alone, is not up to the task of creating and sustaining the conditions necessary to ensure religious freedom; it is not, as he put it, “equal to the burden” of serving as the “sole authentic mediator of moral imperatives to the political order” and the “keystone of the modern experiment in freedom.” An institutional approach to the Religion Clauses – an approach that is consistent with the reality of increasing pluralism and should therefore be attractive to progressives -- would recognize this worry, and have responding to it as its chief aim.


Posted 10:31 AM by Guest Blogger [link]

Etc. in the Graveyard

Ian Ayres

Posted 9:44 AM by Ian Ayres [link]

Religion and Division

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Richard W. Garnett

A particular narrative has, for many years, informed and shaped both our thinking about the meaning and purpose of the First Amendment’s no-establishment-of-religion rule and the construction-by-courts of the doctrines, standards, and tests used to enforce that rule. The narrative goes something like this: Europe suffered through many years of war, persecution, and political turmoil, in large part because of the failure to appropriately separate church and state, religion and politics. As Madison put it, in the Memorial and Remonstrance, “[d]uring almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” Our Founders learned from this experience, the narrative goes, and so sought to guard against “divisiveness” in politics by privatizing religion.

Obviously, there is something to this narrative. As I have tried to explain in more detail elsewhere, though, I believe it is a mistake – one that for several decades misshaped our constitutional doctrines and debates and one that “progressives” and “conservatives” alike should want to see abandoned well before 2020 – to think that observations or predictions of “divisiveness” should have any significant place either in the judicial enforcement of the no-establishment rule or in citizens’ participation in what Jack Balkin calls the broader “tradition of redemptive constitutionalism.” After all, and to quote Madison again, “[l]iberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

Noah Feldman and Bill Marshall contributed thoughtful essays to The Constitution in 2020 on the challenge of “protecting religious diversity” through our Constitution. I agree with much – most, in fact – of what they wrote, notwithstanding the fact that the “constitutional vision” developed and defended in the volume is, for the most part, not my own. This short comment is not intended as a criticism, or even a direct response, to their essays. It was, instead, merely prompted by what seemed to me to be each scholar’s embrace of the idea that the First Amendment was designed to be, and should be, understood and enforced with an eye toward avoiding or soothing “divisiveness.” (Professor Feldman, for example, follows Chief Justice Burger – and, more recently, Justice Breyer – in stating that a no-money-to-religion rule can be justified “on the ground that debates over government funding are likely to lead to political polarization – an especially great risk in our vibrantly diverse society.”)

In my view, though – and in John Courtney Murray’s words – we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.” Pluralism, Murray thought, “is the native condition of American society” and the unity toward which Americans have aspired – e pluribus unum – is a “unity of a limited order.” As I see it, those who crafted our Constitution believed that both authentic freedom and effective government could be secured by harnessing, rather than homogenizing, the messiness of democracy. It seems both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well, and engaging in precisely the “larger dialogue” and “conversation” for which The Constitution in 2020 calls.

Roberto Unger suggested, more than a decade ago, that one of the “dirty little secrets of contemporary jurisprudence” is its “discomfort with democracy.” And, in a similar vein (though not with regard to the Establishment Clause), Rick Pildes has voiced the worry that “in the political realm, judges and others cling . . . tenaciously to the fear that too much politics, or too competitive a political system, will bring instability, fragmentation, and disorder.” In my view, our thinking about religious liberty and church-state relations, and about the role of courts in protecting that liberty and policing those relations, should not – today or in 2020 -- be affected or colored by this “fear.”


Posted 10:31 AM by Guest Blogger [link]

The First Amendment In 2020: An Institutional Perspective

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Paul Horwitz

Justice Oliver Wendell Holmes once famously wrote, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” The difficulty of this advice should not be underestimated – especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have “a deeply felt desire . . . to achieve noninstrumental certainty in the law.” And Fred Schauer has written of the lawyer’s tendency to think in terms of “juridical categories” rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers’ greatest gift and their greatest handicap.

The law of the First Amendment abounds with evidence of the lure of acontextuality. Across a range of First Amendment doctrines dealing with very different forms of speech, worship, association, and institutional and discursive frameworks, we see judges and scholars hoping to find some frame, some word or concept, that will bring a theoretically pure and coherent shape to the whole of First Amendment law, with little apparent regard for who is speaking or what is being said. “Equality,” “neutrality,” “content-neutrality,” and many more buzzwords are touted as the path to an analytically pure First Amendment.

Invariably, these proposals fail to win complete agreement. But that does not appear to extinguish hope for some Grand Unified Theory of the First Amendment. If one of these concepts is revealed as a failure, if it does not capture all of the First Amendment within its grasp, then some new candidate will take its place soon enough. Like Gatsby, First Amendment theorists think: “It eluded us then, but that’s no matter – tomorrow we will run faster, stretch out our arms farther. And one fine morning . . . .” Yet the next morning dawns, and everyone seems to agree: despite the effort to impose some order on the First Amendment, it remains “notoriously scattered and confused, a jumble of incompatible and indeterminate tests,” as Robert Post writes in one of his contributions to The Constitution in 2020.

Is there a better way to proceed? I believe there is. In fact, a number of First Amendment scholars, of whom I am only one, have argued that the way out of the First Amendment impasse lies in resisting the lure of acontextuality itself. We should refashion the First Amendment from the bottom up – from the distinct and varied structures, institutions, and social practices in which public discourse actually takes place, rather than hoping to find some concept or rule that will apply to all of them. We should take Holmes’s advice and think things, and let the words that describe and order them emerge organically rather than being imposed upon them.
Both Robert Post and Yochai Benkler, in their contributions to The Constitution in 2020, take something of this approach, although I would not expect them to agree with all (or anything) I say here. Post writes that we should begin our efforts to understand the First Amendment by focusing on the nature and role of public discourse, and asking how the First Amendment can strengthen and “sustain a healthy public sphere.” Benkler writes that liberty is not simply a matter of “the Constitution as law,” but consists also of “patterns of human communication and expression.” Human flourishing, he says, is “less affected by ‘the Constitution’ as a formal legal category than by the confluence of formal rules within the economic, social, and technical structures that make up the actual context within which human action, alone and with others, occurs.”

This, I believe, is a much better place to start reshaping the First Amendment, whether in 2020 or tomorrow. In my work, one place this starting-point leads us to is a deeper consideration of the role of what I call “First Amendment institutions.” (I follow Schauer in using this term, although not always to the same effect.) Public discourse often takes place in and through institutions. That includes most especially a range of traditional and fairly readily identifiable institutions that have grown up alongside our constitutional and social structure: libraries, universities, schools, religious associations, voluntary associations, the press, and others. It includes, too, emerging institutions, often more inchoate; the Internet, with its varied speech structures, is surely one of the most important of these. These institutions have their own, varied forms of discourse formation, their own norms and practices, their own forms of self-monitoring and self-regulation.

Rather than impose some rule or principle that might attempt in vain to capture each of these institutions and their practices, we might instead proceed by thinking about these institutions more closely, asking how they act and self-regulate, and deferring substantially to them as they develop their own evolving sets of best practices. We might grant them substantial autonomy within their given spheres – not absolutely, and not because we suppose these institutions are perfect, but because we believe that they can do a better job as seedbeds of First Amendment doctrine and sites for public discourse than the courts could do by subjecting them to a set of ultimately unresponsive and incoherent acontextual rules. Just as Mark Tushnet has talked about the Constitution outside the courts, so we might think of a First Amendment outside the courts – one that is more institutionally diverse and responsive to institutional practices, one that emerges largely from the institutions in which public discourse actually takes place.

Much more, of course, needs to be worked out about this. It is not an approach that gives the main spotlight to either the individual or the state, as current First Amendment doctrine is wont to do, and both of these key players need their own place within First Amendment institutionalism – or a place entirely of their own. And it is certain that some of the potential implications of a thorough-going institutionalist approach might be off-putting to some, particularly those who think private institutions ought to be governed by generally applicable and acontextual laws, such as anti-discrimination laws. Given the number of institutions that are substantially self-regulating and have a long history of institutional practices, but that are nominally public, a First Amendment institutions approach might also raise questions about current state action doctrine – an issue about which Mark Tushnet raises his own questions in The Constitution in 2020.

I do not, therefore, pretend to provide a complete road-map to the institutional First Amendment as it might look in 2020. But I want to urge us to think about it. I want to suggest that the very real questions and transition costs raised by this approach are not insurmountable. Moreover, those costs only look prohibitive if we believe that a coherent acontextual First Amendment is possible, and that it best serves our needs and contributes to the healthy development and maintenance of public discourse. After decades of laments for both the incoherence of First Amendment doctrine and the poverty and paucity of public discourse, however, I think there are fewer grounds than ever for believing that this is so. Public discourse emerges from institutions that in some cases pre-existed and in other cases grew up alongside the First Amendment, and those institutions and their practices are sticky and largely self-sustaining. They are not simply creatures of the First Amendment. But the First Amendment might develop in a stronger and more socially responsive way if it were their creature. The First Amendment itself is a mere formula of words that might make more sense if we began by thinking about the existence of things, including institutions, in the world.



Posted 10:30 AM by Guest Blogger [link]

To Whom is a Drone Loyal?

Mary L. Dudziak

In my west coast copy of the New York Times today, two stories are side-by-side: one on disagreements within the Obama Administration about Afghanistan, and one titled “U.S. Drone Strikes Office of Sunni Party In Iraq’s North.” These stories are related, for the politics of war, necessarily at issue in presidential decisionmaking about Afghanistan, are affected by the technologies of warfare. Drones are a technological step that further isolates the American people from military action, undermining political checks on contemporary warfare. And the isolation of the people, historians of war have argued, helps enable on-going, endless war.

When contemplating the scope and limits of presidential war power, constitutional scholars tend to focus on the relationship between the branches and the impact of public opinion. But the existence of drones, the reliance on private contractors, and the absence of a draft are part of a shift in the political structure of American warfare, enabling presidential power.

The role of drones might cause us to believe that an inevitable march of technology, together with strategies of contemporary warfare, have led to the disconnect between most Americans and the wars their nation is engaged in. But military historian Adrien Lewis suggests that these developments were not at all inevitable, and that a fundamental shift in the political structure of American warmaking has occurred since Vietnam, resulting in an isolation of the people from their wars.


Posted 2:26 PM by Mary L. Dudziak [link]

Discrimination, Violence, and the Constitution

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Alice Ristroph

The essays in The Constitution in 2020 ask not only what the Constitution can do for us, but what we can do for the Constitution. In other words, the book offers both visions of what constitutional law should be and concrete suggestions for how to make it so. Optimism—pragmatic, cautious, yet still resolute—characterizes discussions of equal protection, social and economic rights, free speech, and religious liberty. The book says very little, however, about the most litigated provisions of the Bill of Rights, the provisions to which individuals facing an exercise of state power most often appeal. I refer to constitutional criminal procedure, and I wonder: Is the criminal justice system no place for constitutional optimism? Is criminal justice a realm where we can do little with the Constitution, and where it can do little for us?

American policing and punishment practices are characterized by considerable racial and economic disparities. And at least at a certain level of abstraction, equality is a powerful constitutional norm. So we might look for constitutional levers to address inequality in the criminal justice system. Tracey Meares takes this approach in “The Progressive Past,” the sole essay in The Constitution in 2020 directly focused on criminal justice. As Meares notes, in the 1960s and 1970s, courts applied constitutional protections for criminal defendants in attempts to address widespread racial discrimination. But this project was never fully successful, and at any rate, in more recent decades courts have read the Bill of Rights to provide much narrower protections to defendants and thus to permit a much wider range of state practices. Toward a new (or revived) effort to address inequality, Meares suggests that we think of constitutional criminal procedure not merely in terms of protections for individual defendants, but as a source of public legitimacy for the criminal law. Her “public-regarding approach” would identify disparities that undermine public perceptions of fairness and legitimacy, such as race-based juror selection or race-based defendant selection (selective prosecutions), and it would use constitutional levers to address those disparities.

There is much to be gained by invoking antidiscrimination norms to reform American penal practices. Of course, we will still argue about what constitutes equality. As noted in Robin West’s essay in the 2020 volume, the legal conception of equality emphasizes treating like cases alike. In criminal justice (and elsewhere), there is considerable disagreement about how to classify “like cases.” For example, many would argue that racial disparities in American prison populations simply reflect patterns of offending. We impose like punishments on like offenders, the argument goes, and it’s unfortunate but true that racial minorities more often commit serious crimes. There are ways to undermine this claim, including Meares’s proposed attention to selective prosecutions. But even if we could agree on what equality means, and even as we pursue more egalitarian practices, it is not clear that equality is enough. I think observers of America’s sprawling penal system must ask whether inequality is the only constitutionally suspect feature of that system.

Assume, far-fetched as the notion may be, that our criminal laws and enforcement practices were purged of racial discrimination. Assume, also, that the expansive conception of the state’s penal power persisted. Legislatures still possessed the same broad discretion to criminalize conduct and to prescribe lengthy prison sentences that they have today; police officers still possessed the same broad discretion to search and seize persons in the investigative process; and prison officials still possessed the same broad discretion to use force within the prison to maintain order and discipline. In this imagined world, none of this discretion would be exercised in a racially discriminatory manner, but it would still be used to police and punish aggressively. In this imagined world, the criminal justice practices currently directed disproportionately at non-whites would be experienced by everyone. Would the Constitution be satisfied?

The question is whether and how the Constitution imposes any limitations on the state’s use of force independent of requirements to use force in a nondiscriminatory manner. Do constitutional provisions such as the Fourth and Eighth Amendments restrict state power in ways not addressed by the Equal Protection Clause? Earlier this year I wrote about the use of the term “violence specialists” to describe agents of the state authorized to use physical force for public ends. The authors who use this term assume that every society has its violence specialists, but constitutional democracies are distinctive in that the violence specialists are subordinated to the rule of law. But which law? What I’d like to figure out—before 2020, I hope—is whether the Fourth and Eighth Amendments could provide more meaningful restrictions on state officials’ decisions to use force to police or punish.



Posted 10:30 AM by Guest Blogger [link]

“Disability’s Force”

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Elizabeth Emens

It is time for a new frame for our thinking about antidiscrimination law and theory. Many have observed that the trend in the Court's reasoning about race discrimination especially -- under the Constitution as well as key statutes -- is counterproductive. This reasoning leaves little room for constructive race consciousness, for flexible and creative remedial efforts, because it leaves us with little other than an individual bad actor model and a goal of colorblindness. Stepping outside the Court's current doctrine, I propose a new model for understanding discrimination, a model drawn from disability law and theory. Disability, I want to suggest, can provide us with useful ways to think about discrimination, to conceive of identity, and to design remedies.


First, disability offers a model of discrimination that requires no bad actors to produce exclusionary outcomes. In this way, disability helps us to move away from the individual bad-actor model. The paradigm case of the wheelchair user presents this scenario starkly. A building has stairs; at least in a world before the ADA, no building designer needs to have thought about whether stairs would exclude people in wheelchairs in order for people in wheelchairs to be excluded. No bad actor, yet utter exclusion. Disability thus demonstrates that facially neutral policies can be disabling, even if no animus underlies them.

Second, disability theory presents a model of identity that shows us how environment can create disadvantage, but does not insist on a wholly constructivist notion of difference. The social model of disability is a counterpoint to the so-called medical model. Whereas the medical model emphasizes impairment as the biologically determined, highly individualized basis of disability, the social model locates disability in the interaction between individual impairment and the social environment. Or as the writer and activist Simi Linton, who uses a wheelchair, puts it to her students, "If I want to go to vote or use the library, and these places are inaccessible, do I need a doctor or a lawyer?" The social model does not insist that biological difference is nonexistent -- a claim implausible to many. But the social model does redirect our attention from the medical notion of impairment to the social nature of impairment's relation to the outer world, and thus renders that difference relatively meaningless by shifting our focus to the ways society generates that meaning. The social model therefore offers a path out of the back-and-forth struggle to claim nature or nurture, and rests our gaze on the significant operation of meaning making.

Third, disability law offers a remedial model that can attend to individual variation and change the social environment through a process of negotiation and innovation. The ADA's accommodation requirement offers, at least in principle, a resounding answer to the assimilationist worry in antidiscrimination law -- that is, to the question, Who has to change, the individual or the environment? Accommodation requires an employer to make adjustments to enable an individual to get the job or do the job. And that requirement is not just a right to sue after the discrimination has occurred; rather, it is accompanied by incentives for employers to engage in an "interactive process" with employees to design effective accommodations to avoid or address problems ex ante. Moreover, while this interactive process and the underlying right expressly target individuals, the process of accommodation may have broader benefits to the workplace, either automatically or indirectly. Thus, accommodation presents both a metaphor and a practical process for changing the structural environment, while at the same time linking that change to individuals' particular needs.

I look forward to more discussion at the conference of this very general sketch of what I think disability law and theory offer our antidiscrimination thinking. Before closing, though, I should note that there are multiple downsides to the disability model. Foremost among them -- and perhaps already in readers' minds -- is the widespread assumption that disability means inferiority. To say that race discrimination, for example, can be better understood by adopting a disability frame may seem to accept stereotypes of racial hierarchy and inferiority. (Worries about the stigma associated with disability -- and especially the assumption of inferiority -- are well known to transgender advocates who have debated the merits of using the disability model.) But such a concern adopts (common) assumptions about disability that a disability studies perspective challenges by showing how the disadvantage created by difference has social roots. Nonetheless, there are admittedly dangers to even broaching the disability frame. As we look for bold new ways to think about discrimination, however, we need to be willing to confront those dangers. Disability law and theory have much to offer as we work to undo the limiting trend in equal protection.



Posted 10:30 AM by Guest Blogger [link]

Why Citizens United May Not Be NAMUNDO

Barry Friedman

Pundits are predicting the Supreme Court is poised to invalidate a key provision of the campaign finance laws in the Citizens United case. They were making similar predictions regarding the pre-clearance provisions of the Voting Rights Act last term – but in that instance the Court ducked. The interesting question is why the Court would avoid controversy in one case, but not the other.

With regard to the Voting Rights Case – NAMUNDO v. Holder – Jack Balkin and I both felt the Court was responding to the political environment the justices face. The Voting Rights Act is popular with Democrats and had recently been renewed with overwhelming majorities in both houses of Congress. Barack Obama is in the White House. Over-ruling a key provision of the recently-renewed congressional law might have brought the Court in for some serious and uncomfortable criticism.

But if the justices are seeking to avoid this kind of trouble, why would they feel safe to go ahead and strike down the ban on corporate electioneering in the Bipartisan Campaign Reform Act.

One answer might involve salience. Campaign finance is not an issue that seems to rank high on the public’s list of important issues. Of course, it is not clear that overturning the voting rights law would have brought much of a public backlash either. The threat in that case seemed mostly congressional, and so this difference may not be determinative.

On the other hand, Citizens United was a First Amendment case. The justices are particularly lacking in deference to Congress when it comes to the First Amendment. Think here of internet porn, school prayer, flag burning. But still this begs the question. Why is the First not like all other amendments when it comes to judicial review?

A related answer might involve the media. Perhaps the justices may have more leeway in First Amendment cases because the media – which understandably loves the First Amendment – offers the Court some cover from the political heat in these cases.

And in fact, the tension between cleaning up politics, and suppressing speech to do so, has split the left over the constitutionality of the campaign finance provisions. This is a message readily apparent to the justices from the amicus briefs filed in Citizens United. As Mark Graber has argued persuasively, such splits in the governing coalition create yet further space for the justices to go ahead and rule as they would like.

For all the reasons that held sway in NAMUNDO the justices might ultimately conclude that discretion is the better part of valor. Half-way measures have been urged on the Court that would allow it to stop short of overruling Austin v. Michigan Chamber of Commerce and striking the corporate electioneering provision of BCRA. But this time there are reasons on the other side as well.

Posted 9:09 AM by Barry Friedman [link]

The Constitution in 2030

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Paul Horwitz

There are revolutions, and then there are Revolutions. The big, capital-R type Revolutions are the major sea changes in the way we think and act or in our political structures, the moments in which some concept moves, seemingly overnight, from being unthinkable to being incontestable. Then there are revolutions, in something like the literal sense: the same old turning of the wheel, bringing the return of some set of ideas or political views to dominance, but with the certainty that its moment will inevitably pass, and return, and pass and return, and so on. These small-r revolutions are the stuff of our usual politics. They are one reason (the other may be summed up in a name: Keith Moon) why the Who’s “Won’t Get Fooled Again” still sounds fresh. “Meet the new boss….”

What do the authors of The Constitution in 2020 want: a revolution, or a Revolution? Are they interested in something genuinely new, a real paradigm shift in how we conceive of the Constitution? Or are they really just looking for a regime change, one that will bring them the results they want but that is destined to be merely temporary? Are they just talking about what Barry Friedman describes, in literally revolutionary terms, as the inevitable cycles of constitutional theory, or do they want something more?

This is a collection, not a manifesto, and so there is incomplete agreement on this question. Cass Sunstein, for instance, argues for a minimalist approach to constitutional interpretation on the courts, one that inevitably will result only in gradual shifts from current doctrine in the vast majority of cases. And Jack Balkin and Reva Siegel, in their introduction to the volume, argue that part of “our obligation to the Constitution” involves “[l]iving in faith with the past.”

But there are hints of something more Revolutionary in The Constitution in 2020. Balkin and Siegel also write of the Constitution as “a bond with the future, expressing commitments that the American people have yet fully to achieve.” They seek “ new mobilizations that emphasize a new constitutional vision that better articulates enduring constitutional values” – a sentence in which one might choose to stress either “enduring” or “new.” Robert Post and Reva Siegel speak in Revolutionary terms too, urging a counter to the “conservative insurgency” and “conservative mobilization” of recent decades that consists of a new “substantive constitutional vision.” Certainly many of the individual contribtutions to The Constitution in 2020 really amount to tinkering around the edges of current doctrine. But one gets the sense that at least the editors of this collection would like to frame their project in more Revolutionary terms.

If that is actually the case. then I want to suggest that The Constitution in 2020 is the wrong title for the book. Small-r revolutions, mere turnovers in power, happen relatively frequently. Big-R Revolutions are a different matter altogether. They do not happen often or overnight. Paradigm shifts, like rockslides, only appear to happen all of a sudden. In reality, they develop slowly before they happen quickly.

Consider what Post and Siegel call the “conservative insurgency” in constitutional law. It did not happen suddenly, and its Revolutionary phase was preceded by a long and slow revolutionary phase. It was easy enough for the Reagan administration to start restocking the federal judiciary, but even that development required it to draw on an existing group of potential judicial candidates, many of whom came to prominence in the Justice Department of President Gerald Ford. In keeping with its small-r revolutionary nature, this initial change in the courts was relatively modest at first. Outcomes changed, but only incrementally, in part because the new judges differed more in ideology than in methodology from the judges of the ancien regime. For a genuinely Revolutionary movement to emerge on the courts, a long and slow process of education was needed. Breeding grounds for a new constitutional vision, represented by such developments as the birth of the Federalist Society, had to come first, and the young lawyers who formed the shock troops of this movement had to make their long march through the institutions. Over the course of time, judicial conservatism itself had to change, from a modest revolutionary stance to a more Revolutionary worldview. The process did not take ten years; it took between twenty and forty years.

But The Constitution in 2020 looks only a little more than a decade ahead. In that short time, we might see some small-r revolution on the federal courts. We might see the outs become the ins, and liberal rulings might replace conservative ones. But we are unlikely to see any Revolutions in so short a time. Science fiction in the 1950s looked a couple of decades ahead and imagined that we would soon be moving around with jetpacks and serving our robot overlords; by the 1970s, all that managed to happen was that we replaced our eight-tracks with cassette players. The same thing is likely to prove true if we try to imagine a genuinely Revolutionary movement in constitutional interpretation but place it just around the corner, temporally speaking.

Now imagine a genuine Revolution in constitutional thinking. It would not consist of the replacement of conservatism with liberalism, or “progressivism.” That might have its value, but it is still pretty penny-ante thinking. Imagine, however, that a constitutional vision developed that paid more than lip service to the idea of “the Constitution outside the courts.” Suppose we tried to place the center of gravity for constitutional theory and interpretation outside the judiciary altogether, and instead shaped new ways for citizens and lawmakers to take primacy of place in the act of constitutional interpretation.

Or suppose – and I and several others have argued for this view – that constitutional lawyers concluded that there is something dissatisfying about the whole enterprise of constitutional interpretation, which focuses on legal doctrines shaped by acontextual legal concepts, and instead decided that it is important to “think things, not words,” as Justice Holmes once said. Such a vision would require us to rebuild constitutional law from the ground up, replacing lawyers’ usual ways of thinking about the world with one in which legal doctrine emerges from actual social practices and the social institutions that provide a space for these practices rather than trying to impose a legalistic vision from the top down. (Thus, Mike Dorf and Charles Sabel have written powerfully about a “Constitution of democratic experimentalism.”) The lawyers – and, eventually, judges – who championed such a movement would need a radically different form of education, one that is far more knowledgeable about social practices and institutions and their evolution than current legal education provides. They would need to make their own long march through the institutions, and the institutions themselves would have to change to provide them the resources they need to rethink constitutional law.

Now, this might be truly Revolutionary thinking. But like all such Revolutions, it will not happen overnight – or even in a decade. We would need to start now to rethink legal education and legal doctrine, to provide a super-structure of supporting ideas in constitutional scholarship, and to educate a new generation of lawyers to a new way of thinking. We would have to think about the Constitution in 2030, not the Constitution in 2020. And that might still be overly optimistic.

If the editors and authors of The Constitution in 2020 want to encourage a real Revolution in constitutional law, then, they will need to start by rethinking their title. On the other hand, if all they want is a revolution – if all they really care about is the development of more or less the same old ways of thinking, but from a progressive rather than a conservative perspective; if they just want to be the “new boss” for a while, with a corresponding change in outcomes – then 2020 seems like a reasonable date to shoot for. That is time enough for the new guard to take over. Unless we are just motivated by politics and a concern with outcomes in particular cases, though, that does not seem so terribly worthwhile a goal. It is certainly a short-sighted one: if all we are concerned about is a shift in who holds the reins of power, instead of a real shift in how we think about the Constitution, then the “progressive” Constitution of 2020 will be replaced by a conservative Constitution in 2040, and so on. Instead of planning for a constitutional revolution in 2020, perhaps we might instead try to imagine what a real constitutional Revolution might look like – in 2030.


Posted 10:30 AM by Guest Blogger [link]

David Broder Gets It Wrong

Stephen Griffin

Time out from war powers (to which I will eventually return) to examine the latest column from David Broder, appearing in today’s WaPo. I should note his analysis of the Obama administration’s policy difficulties is taken from an article in National Affairs by William Schambra which I haven’t read. Here I am concentrating on what Broder regards as important in Schambra’s article.

What strikes Broder is Schambra’s idea that Obama hopes to tame large-scale social problems through rational policy analysis rather than narrow politically-driven decisions designed to accommodate interest groups. In this respect, Obama is a worthy successor to the progressive movement, which hoped to use social science to tame the ills of society. Broder says, “Historically, that approach has not worked.” The problem? Schambra says it is the Constitution itself, “which apportions power among so many different players.”

Broder sees Obama’s policy rationalism on energy, health care and other issues as running squarely into the local and interest-group orientation of members of Congress. He concludes: “Democracy and representative government are a lot messier than the progressives and their heirs, including Obama, want to admit. No wonder they are so often frustrated.”

I see multiple problems with this reasoning, both historical and constitutional.

Broder gets off the track first in his characterization of the progressives. They were a hard group to define, but they laid the basis for important elements of our current polity by opposing the mass political parties of their day and promoting associations and a group-based view of society. In other words, they helped promote the interest group state, the state Broder thinks Obama is opposed to. There is also a good argument that progressives were genuinely trying to recapture something of the spirit of the public interest that animated the founding generation and thus the Constitution itself. The Constitution protects state and local interests by making representation in Congress based on districts and states. But the original purpose of this design was less to allow modern interest groups (which, after all, did not exist in the eighteenth century) to roam free in congressional lobbies, than to protect liberty and promote the public interest.

You could read Broder’s column and forget that Obama was elected from an essentially national constituency. If the purpose of the Constitution was to protect local interests, as Broder and Schambra would have it, why would it allow for the election of a national leader? Did Obama suddenly turn to rational policymaking after he was inaugurated? If not, and if the American people were attracted to his way of making policy, why would it run against the grain of the Constitution for Obama to try to implement the policies he ran on?

The effect of Broder’s analysis is to place Obama and his policy wonk administration outside the boundaries of our wonderfully complex constitutional structure. But this is nonsense. Many Americans elected Obama because of his policy orientations and rational approach to government. No great truths of democracy or representative government are revealed here. In fact, as Sandy urges, we might take a page from the progressives and make constitutional change part of the contemporary agenda. Among other points, the progressives helped make the Senate more democratic through direct election. More can be done here by eliminating the filibuster, for example. Obama hasn’t raised these sort of structural issues, but he should. The policy process in Congress is badly broken, partly as a result of influence by the interest groups progressives helped to create. We can’t solve our problems by going back to progressivism. But neither can we avoid its very mixed legacy for our political system.


Posted 10:49 PM by Stephen Griffin [link]

The Bush Administration as History

Mary L. Dudziak

I've posted on SSRN the abstract for one of my current papers: A Sword and a Shield: The Uses of Law in the Bush Administration. This essay is forthcoming in a collection, W as History: America's Leading Historians Take a First Look at the Presidency of George W. Bush, edited by Princeton University political historian Julian Zelizer. The collection will be published by Princeton University Press in 2010. For copyright reasons, I can't post the paper, unfortunately.
One of the points the paper makes is that the Bush administration was not a lawless administration. Instead, law became central. Here's a snippet from the text:

Although the Bush Administration sought to avoid judicial review [of war-on-terror-related policies], lawyers were front and center in White House decision-making. According to Jack Goldsmith, faced with concerns about the possibility of another terrorist attack, and fear of being blamed for not avoiding it, the president could only justify the failure to take protective action if he had a good reason. “A lawyer’s advice that a policy or action would violate the law, especially a criminal law, was a pretty good excuse.” The White House was “haunted” by 9/11, Goldsmith argues, and “obsessed with preventing a recurrence of the expected harsh blame after the next attack.” Because of this, “the question, ‘What should we do?’ ...often collapsed into the question ‘What can we lawfully do?’...It is why there was so much pressure to act to the edges of the law.” The central role played by lawyers had limitations, however. Lawyers “look to legal sources to find the answers,” said 9/11 Commission Executive Director Philip Zelikow. This left out other important factors, such as the impact of a policy on U.S. foreign relations and on domestic public opinion.

The essay also places war-related policies in the context of a broader legal agenda. The essay is not at all comprehensive, however, since essays for this book -- intended for a broad audience -- have to be short. But working on this causes me to think that historians will have much to say about the Bush years for a long time, and one of the moves historians will bring to the table is an effort to contextualize administration actions -- first by beginning the story before 9/11, and finding continuities, and second by setting the Bush years within the broader trajectory of the history of legal conservatism.

The abstract is below the fold.

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack of a common jurisprudence hampered the consolidation of a new conservative constitutional vision. More conservative courts might seem a safe haven for the president, less likely to challenge executive branch actions, but the Bush administration had a complicated relationship with courts. The administration sought out the courts to further aspects of a social policy agenda, such as restricting abortion rights and gun control. But when it came to challenges to the executive branch itself, the Administration used creative means to avoid court jurisdiction, including constitutional theories about executive power. Law was both a sword and a shield: it was a tool used to further some conservative objectives, and it was a shield intended to protect executive autonomy.

Cross-posted from the Legal History Blog -- where you can leave comments. Comments there are moderated, so please be patient.

Posted 1:13 PM by Mary L. Dudziak [link]