Conference Video Digest

Over a long weekend in early October, legal enthusiasts from around the country converged on Yale Law School for The Constitution in 2020 Conference. Hosted by the Yale Law chapter of the American Constitution Society, the 2020 Conference brought together top legal scholars, practitioners, and activists with several hundred audience members for in-depth discussions about the future of American constitutional law -- and American law, policy, and politics more broadly. For those who didn’t have the chance to attend, we present full streaming videos – now you can watch everything, from the opening address to closing remarks, with handy summaries and commentaries from members of the 2020 blogging team. (For links to the posts submitted by the professors in advance of the conference, click here.)

Conference Welcome
    Featuring: Dean Robert Post (Yale Law School)

America and the World
    Featuring: Bruce Ackerman (Yale Law School), Muneer Ahmad (Yale Law School), Oona Hathaway (Yale Law School), Aziz Huq (University of Chicago Law School), Jenny Martinez (Stanford Law School), and Jon Michaels (University of California Law School-Los Angeles)
 

Roundtable:  About the Constitution in 2020
    Featuring: Bruce Ackerman (Yale Law School), Jack Balkin (Yale Law School), Robert Post (Yale Law School), Neil Siegel (Duke Law School), and Reva Siegel (Yale Law School)
 

Social Rights
    Featuring: Risa Goluboff (Virginia Law School), Jacob Hacker (Yale University), Ben Sachs (Harvard Law School), and Vicki Schultz (Yale Law School)
 

Constitutional Theory
    Featuring: Jamal Greene (Columbia Law School), Paul Kahn (Yale Law School), David Law (Washington University School of Law), Sophia Lee (University of Pennsylvania Law   School), and Richard Primus (University of Michigan Law School)
 

Individual Rights
    Featuring: Elizabeth Emens (Columbia Law School), Rich Garnett (Notre Dame Law School), Paul Horwitz (University of Alabama School of Law), Dan Kahan (Yale Law School), and Alice Ristroph (Seton Hall University School of Law)
 

Localism and Democracy
    Featuring: Heather Gerken (Yale Law School), Ethan Leib (University of California Hastings School of Law), Judith Resnik (Yale Law School), Rich Schragger (University of Virginia School of Law), Ilya Somin (George Mason University School of Law), and Ernie Young (Duke Law School)
 

Roundtable: Mobilization
    Featuring: Addisu Demissie (Organizing for America), William Eskridge (Yale Law School), Marshall Ganz (Kennedy School of Government, Harvard), Judy Scott (SEIU), and Michael Wishnie (Yale Law School)
 

Roundtable: The Constitution in 2020: Getting There from Here
    Featuring: Debo Adegbile (NAACP), Marvin Ammori (Free Press/ University of Nebraska-Lincoln College of Law), Nan Aron (Alliance for Justice Pam Karlan, Stanford Law School), Robert Gordon (Yale Law School), and Tom Saenz (MALDEF)
  

 *Special thanks to the Brian Pauze and the Yale Law Audio-Visual Staff for taping, editing, and technical support.

Blog Digest - The Professors' Pre-Conference Postings

In advance of the Conference, many of the panelists submitted posts where they staked out their initial positions on a variety of constitutional issues. To get a better sense of the conversation that occurred in the weeks before the Conference, follow the links below:

 

AMERICA AND THE WORLD
 

Muneer Ahmad, Personhood in Citizenship’s Shadow
Aziz Huq, The Transformative Potential of Muslim America
Jenny Martinez, Constitutional Rights as Human Rights?
Jon D. Michaels, Executive Authority in a post-Westphalian World: How Global Trends Influence U.S. Separation of Powers

 

SOCIAL RIGHTS
 

Risa L. Goluboff, Social Rights
Jacob Hacker, The Democratic Case for Tackling Economic Inequality
Benjamin Sachs, Locating Union Rights

 

CONSTITUTIONAL THEORY
 

Jamal Greene, How Constitutional Theory Matters
David S. Law, The Failure, and Future, of Constitutional Theory
Sophia Lee, Administering the Constitution in 2020
Richard Primus, The Necessity and Peril of Ethical History

 

INDIVIDUAL RIGHTS

Elizabeth Emens, Disability’s Force
Richard W. Garnett, Religion and Division
Richard W. Garnett, Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom
Paul Horwitz, The Constitution in 2030
Paul Horwitz, The First Amendment in 2020: An Institutional Perspective
Alice Ristroph, Discrimination, Violence, and the Constitution

 

LOCALISM AND DEMOCRACY

Ethan Leib, Constitutional Conventions:  Getting 20/20 Vision About Them by 2020
Richard Schragger, Federalism All-the-Way-Down
Ilya Somin, The Promise and Peril of Federalism in the 21st Century
Ernie Young, Preserving Democracy’s Laboratories   
 

Panel Recap -- America and the World

The Constitution 2020 Conference opened powerfully with a panel that engaged questions essential to defining a vision of progressive constitutionalism: Who ‘counts’ as American?  And what kind of law ‘counts’ as American?

The panelists, along with their moderator, Bruce Ackerman, tested the boundaries between citizen and non-citizen, and between U.S. and international law, in the context of national security, foreign policy, immigration enforcement, and discrimination against minorities since September 11, 2001.

The panel opened with Aziz Huq (University of Chicago Law School) and Muneer Ahmad (Yale Law School), who tackled issues on citizenship, personhood, and advocacy. Their comments framed an approach to the question of who ‘counts’ as American. Then Jon Michaels (University of California Law School – Los Angeles) and Oona Hathaway (Yale Law School) reflected on the need to reintroduce democracy to determine what kind of law ‘counts’ as American law. Their proposals paid special attention to checking executive power in national security and foreign policy matters.

Video Courtesy of Yale Law School

Who ‘counts’ as American?

Since September 11, 2001, Muslim Americans have had a common encounter with discrimination that has often placed them outside the circle of who ‘counts’ as American. While discrimination can and has alienated Muslims, Aziz Huq proposed that this shared experience also has the power to form the otherwise diverse and fragmented community into a single interest group that can reclaim core constitutional rights, such as free speech, freedom of religion, and privacy.

As credible advocates for constitutional change, Muslim Americans can powerfully advocate to base counter-terrorism operations on trust and cooperation with the Muslim community, rather than on surveillance and suspicion. Huq urged that we open foreign policy decision-making to a diversity of voices, including Muslim Americans, because “without voice, loyalty often erodes.”

Panel Recap - Getting There from Here

The capstone of the conference, Sunday’s “Getting There From Here” panel, sought to take theoretical insights gleaned over the weekend and suggest how they might be put into practice. If most panels called for keener eyes and longer, or deeper, vision, the final panel called for tougher hands. It featured: Tom Saenz, President and General Counsel, Mexican-American Legal Defense and Education Fund; Debo Adegbile, Associate Director of Litigation, NAACP; Bob Gordon, Chancellor Kent Professor of Law and Legal History, Yale Law School; Marvin Ammori, Free Press/ University of Nebraska-Lincoln College of Law; and Nan Aron, President, Alliance for Justice. Pam Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School, deftly shepherded the diverse group. Given that these practice-minded panelists had the last word, however, they were able not just to look forward to the future but back at the weekend’s proceedings.

It was particularly fruitful to have a group of practitioners and practically-minded theorists act as commentators on a weekend’s worth of constitutional action. Prof. Karlan began the panel by announcing, that unlike all the foregoing panels, the presenters would not actually make any presentations, but would instead immediately enter discussion, goaded on by Karlan’s incisive questions. Furthermore, following an intra-panel discussion, the floor would open for questions, but only from students in attendance. In 2020, those questioners will likely by leaders and panelists in their own right. Better start now, Karlan seemed suggest.

These two late alterations in the format exemplified the possibilities of progressive or liberal practice. One of the great challenges for liberal leaders, whether within or without the academy, is to lead in a manner that does not perpetuate the kinds of asymmetries and hierarchies so familiar to leader-led dynamics. Karlan’s announcements acknowledged this challenge. A panel dedicated to embodying a progressive vision in the living constitutional order needed to look and act progressive.

Video courtesy of Yale Law School

Having set the stage for a sharp conversation, Karlan continued in a critical vein. She first asked the panelists to talk about what they thought had been missing from the conference. Most of the answers had a sort of “meat-and-potatoes” vibe, one that would continue through the rest of the panel. Debo Adegbile and Tom Saenz drew attention to two areas of great inequality that they felt had been ignored at the peril of more general progressive goals: educational inequality and immigration policy respectively.  Adegbile argued that a lack of decent educational opportunities could create a voiceless generation. Making a distinction between immigrant rights (protecting those who are already here) and immigration policy, Tom Saenz insisted that we need to incorporate constitutional values into our immigration policy, which still effectively discriminates against non-Europeans and often, in the form of certain guest worker programs, separates families.

Social Rights—Recap: Economic Rights in Disguise

Risa Goluboff began the Social Rights panel fittingly by posing the "what" question: what are social rights? Are they civil rights, political rights, or civil liberties? As it turns out, what most of the authors in The Constitution in 2020 and what the panelists at the conference were referring to can more accurately be categorized as "economic rights."

 

 Video courtesy of Yale Law School.

 

Goluboff then swiftly introduced a question that would linger throughout the panel: why call these rights, social rights, and not economic rights? In fact, Goluboff suggested that calling these rights, social rights, may doom them from the outset. Historically, social rights have not fared well in America. As part of the nineteenth-century tripartite conception of citizenship, the judiciary refused to enforce social rights, providing them with the weakest protections. In the human rights arena, the Executive, while signing other major rights-based covenants, has failed to ratify the International Covenant on Economic, Social and Cultural Rights.

Panel Recap – Roundtable: About the Constitution in 2020

Bringing together four of Yale Law School’s constitutional heavyweights, last Friday’s roundtable discussion was both backward- and forward-looking. Moderated by Duke’s Neil Siegel, the panelists spoke about the Constitution in 2020 as a movement, where it came from and what it aspires to achieve. After Reva Siegel introduced the Constitution in 2020 project, Robert Post spoke on democratic constitutionalism, Jack Balkin examined the purposes of a constitutional theory, Bruce Ackerman highlighted a constitutional concern for economic justice, and all the professors debated the future of the Supreme Court and its appointment process.

 Video courtesy of Yale Law School.

 

Reva Siegel recounted how this "Constitution in 2020" endeavor was instigated in response to a conservative project called the Constitution in 2000. The Constitution in 2000 was a document produced within the Reagan Justice Department in 1988 setting forth favored and disfavored lines of constitutional decisions. The document was a blueprint for change, imagining how a more conservative constitutional terrain could be achieved through judicial appointments and constitutional litigation. It was utopian, but restorative. It was also highly successful. Now it has spawned a responsive vision, the Constitution in 2020 project, which includes conferences, a book, and this blog.

Panel Recap -- Opening Remarks

Yale Law School's Dean, Robert Post, opened the Conference with brief remarks that framed the weekend: How can we understand the Constitution as something that is "enduring and permanent, yet changing"?

Paul Horwitz's Post-Conference Thoughts

Professor Paul Horwitz recently posted some thoughts about the 2020 Conference. In addition to commenting on his own panel ("Individual Rights," also featuring Columbia's Elizabeth Emens, Nortre Dame's Rich Garnett, and Seton Hall's Alice Ristroph), he has a few things to say about the 2020 project more broadly. From Prawfsblog:

"What struck me about the conference was that it was directed around a "project" (an oft-used term over the weekend) whose terms are still quite uncertain, and to which not everyone who served as a panelist had signed on.  Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists.  Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable.  Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don't care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives."

 

What's the upshot of these three different groups of panelists all being included in one conference? Read on...

Ilya Somin's Post-Conference Thoughts

After speaking on Saturday's "Localism and Democracy" Panel (along with Virginia's Rich Schragger, Duke's Ernie Young, and UC-Hasting's Ethan Leib), Professor Ilya Somin of George Mason had some thoughts about the current state of thinking on the constitutional "left of center":

 

My dominant impression is that there is a great deal of consensus among left of center con law scholars about which way most important cases should come out, but much less agreement about why." Read more at the Volokh Conspiracy.

 

For his thoughts on the right and constitutional theory more broadly, check out his post over on The Volokh Conspiracy.

Personhood in Citizenship’s Shadow

Crosspost from Balkinization

 

“It has always been easier, it always will be easier, to think of someone as a noncitizen than to decide he is a nonperson.”  – Alexander Bickel

“We asked for workers and people came.”    –Max Frisch

“Under no circumstances can an American citizen be tried in a military commission.” –Senator Lindsay Graham

There is something humiliating about having to argue that your client is a person. And yet, for those of us who represent noncitizens, we are forced to argue personhood all the time. This is true of lawyers representing prisoners at Guantánamo, where dehumanization was both a means and an end, but it is also true in the representation of immigrants in the United States, where the definitional exclusion from citizenship forces us into the realm of personhood. In both instances, even as we argue personhood, we do so in citizenship’s shadow. This is because instead of being independent sources of rights, citizenship and personhood are tethered. As we look toward 2020, we need to consider what citizenship will mean then. I want to suggest that neither constitutional citizenship, as Bruce Ackerman argues for in his chapter and elsewhere, nor personhood, advocated in this volume by Rachel Moran and David Cole, is by itself sufficient to address the inequalities now afflicting noncitizens in the United States. Instead, we might think of personhood as a strategy that, in both success and defeat, leads to a newly imagined American citizenship.