an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Ideas do not move our constitutional norms, people do. This much is a lesson of recent scholarship by Bruce Ackerman, Reva Siegel, and Robert Post.New constitutional entitlements like the right to bear arms baptized in 2008, on this account, crest on waves of popular mobilization.Architectonic change to fundamental constitutional structures, familiar from Reconstruction and the New Deal, necessitates multiple political sallies by majorities engorged with populist fire.
In predicting the shape of constitutionalism to come, therefore, it may be useful to search for emergent social movements with the potential to make constitutional change. Complementing Robin West’s focus on legislated constitutionalism, resisting Richard Ford’s skepticism about abstract constitutionalism, we might ask: What social movement, so far unrealized, has a potential to pressure entrenched constitutional norms by 2020?
For some years now, my (non-academic) work has focused on national security issues.Security-related changes to immigration, criminal law, and charitable regulation have, in my view, disproportionately hit Muslim Americans. But in New York and LA, traditionally quiescent communities have resisted discriminatory or burdensome policies.In line with what Judith Resnik terms “transnational localism,” subnational (here, civil society) actors challenged governmental monopolies on the definition and operationalizing of “security” (a more elusive concept than generally recognized).
Muslim America is a potent, if latent, social force for change.Cruise the streets of Jackson Heights, Queens, or Divan Avenue, Chicago.You’ll see an ethnically diverse, striving, and (in the Pew survey’s words) “highly assimilated” community.Spend some time in the tea lounges and masjids, you’ll hear ample discontent.In one mosque near my former Brooklyn home, congregants learned that three (!) informants routinely attended prayer services. Equally importantly, you’ll hear vociferous concern about the shutdown of Muslim charities under IEEPA, which has encumbered religious obligations of alms (zakat).One recent decision illustrates how IEEPA both curtails core expressions of religious identity and hinders legal representation to challenge that curtailment.
Muslim Americans, in consequence, have much to gain from challenging the assumption that it is the federal government alone that speaks for us and monopolizes policy decisions when it comes to national security and related foreign policy.Just as the “sole organ” doctrine in foreign affairs and its cognates limits states and localities, as Professor Resnik explains, so too it (selectively) constrains certain migrant communities who still struggle for voice on the national stage.
Fashioned in then-Senator George Sutherland’s idiosyncratic tract The Internal and External Powers of the National Government, dragooned into law by Justice Sutherland in Curtiss-Wright, the “sole organ” doctrine licenses an executive branch monopoly on foreign affairs.Despite early able critique by David Levitan in Yale Law Journal, the doctrine abides, sustained by political utility as much as originalist fidelity or descriptive acuity.
Professor Koh argues that the “sole organ” doctrine has taken a drubbing, citing recent Supreme Court rulings.But I am not so sure.For one thing, even if the Supreme Court is eager for Congress to reassert its prerogatives, as Justice Breyer’s Hamdan v. Rumsfeldconcurrence illustrates, it is a different question whether Congress will pick up the slack.Despite intermittent evidence that Congress feels voters pressure about military over-exposure in Afghanistan, little suggests legislators sense pressure to rein in the presidency along any other security or foreign-policy metric.
More than another pressure groups, Muslim Americans in my view are well-positioned to challenge the executive branch’s presumed monopoly on foreign affairs wisdom.Not only do they have much to gain in civil liberties as, they have much unique to contribute.As I elaborate below, Muslim American mobilization aimed to establish a new constitutional polyphony in foreign affairs and national security, on this account, is a win-win proposition.
Three brief examples show this dynamic:Consider first U.S. policy seeks to influence events in volatile Pakistan.In these efforts, the interaction effects of the large diaspora Pakistani-American community with Pakistan’s culture and politics is largely ignored.But government should be leveraging the considerable influence diasporic communities have on sending nations.
Second, active political engagement with migrant communities here diminishes motivations for more radical forms of political action.Voice, that is, reinforces loyalty.In the Midwest’s Somali American community, some young men recently traveled to fight with the Shabaab, provoking breathless consternation in Congress and elsewhere.No one in the Senate asked, however, why Somali Americans would feel so excluded from US policy formation that they took such extreme measures.An opportunity to build productive dialogue between Somalia Americans—a potential mitigating influence on that lawless state—and also to nurture political voice was lost.
Third, Muslim Americans could be a vital voice for the rule of law overseas.As judicial regulation and procedural scrutiny of detention operations in Guantánamo and other US sites increases, the US has increasingly displaced its detention operations to other countries.Recently minted regulations endorse this continued outsourcing to Pakistan and other allies.The price of this displacement is further corrosion of the rule of law in these countries.Displacement thus exacerbates conditions that originally fostered transnational terrorist groups such as al Jihad in Egypt.
To date, few have made the connection between the Supreme Court’s insistence on a patina of legitimacy on domestic detention and the growing erosion of legality overseas.Muslim Americans, sensitive to conditions in those countries, can play a crucial warning and advocacy role.
Not only Muslim Americans but all Americans, in short, have much to gain from challenging the “sole organ” doctrine and contending for a more contentious process of policy formation.I do not know if Muslim Americans will take up this challenge:Fledgling organizations such as Muslim Advocates are promising sparks of change.But their mobilization and increased voice, however strong it proves, can only improve the Constitution in 2020.