2020 Blog

Disability's Force

Crosspost from Balkinization

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.

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Elizabeth Emens is Professor of Law at Columbia Law School. She will be appearing on Saturday's "Individual Rights" Panel with Rich Garnett (Notre Dame
Law School, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), Paul Horwitz (University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

The Constitution in 2030

Crosspost from Balkinization

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.

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Paul Horwitz is Associate Professor of Law at The University of Alabama School of Law. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Rich Garnett (Notre Dame Law School), and Alice Ristroph (Seton Hall University School of Law).
                 
 

The Promise and Peril of Federalism in the 21st Century

Crosspost from Balkinization

American federalism faces both great promise and serious dangers over the next few years. One of the most important advantages of federalism is the ability to “vote with your feet” – to leave a state with oppressive or ineffective policies and move to a better one. Modern technology has greatly reduced the moving costs that previously made interstate migration difficult.  Information about different jurisdictions is easier to get than ever before. Increasing mobility and declining information costs give state and local governments stronger incentives to adopt policies that will be attractive to migrants. Revenue-hungry state governments know that valuable taxpayers will depart if they raise taxes too high or provide poor public services.

Some claim that federalism has lost its value because most Americans no longer feel any strong attachment to state governments. Yet this change may actually make federalism more effective. People who do not feel an attachment to their states are more willing to vote with their feet. This strengthens the incentive of state and local governments to adopt policies appealing enough to keep migrants from leaving. In an increasingly complex and  diverse society, federalism is also potentially more valuable than ever in its traditional role of providing divergent policies for people with differing preferences.

Unfortunately, American federalism is imperiled by the ongoing growth of federal power, especially the increasing dependence of state governments on federal funds. Our system has been successful in part because state governments have historically been forced to raise most of their revenue themselves. State governments that raise their own funds have strong incentives to adopt policies that promote economic growth and attract potential migrants. A state that falls behind its rivals is likely to lose its tax base. But states that can rely on federal funding to meet their fiscal needs face much less competitive pressure and are therefore less likely to adopt good policies. Moreover, federal grants to state governments enable Washington to reduce policy diversity between states, since Congress routinely attaches conditions to its grants that mandate uniformity.

The explosion of federal spending since the financial crisis of 2008 has made states more dependent on federal funding than ever before. In 2009, federal grants-in-aid constitute some 25% of total state revenue, up from less than 20% in 2007. For the first time, federal grant money has become the single largest source of state revenue. The Obama Administration expects federal funding for states to remain at this abnormally high level for years to come. Even when the recession ends, it will be politically difficult to cut federal grants back to previous levels. If Congress passes a major health care bill, federal grants to states will increase still further.

Federalism has also been weakened by the expansion of Congressional regulatory authority. The federal government has come to regulate almost every aspect of American society. This trend accelerated under the Bush Administration, which pushed through legislation expanding federal control of education and health care, and supported federal preemption of a variety of state laws, including ones permitting assisted suicide and the use of medical marijuana. The more policy areas come under federal control, the less the scope for interjurisdictional competition at the state and local level.
   

Unfortunately, state governments are often complicit in the overexpansion of federal power. States routinely lobby for increased federal funding. For their part, most voters have little understanding of federalism issues. As a result of such public ignorance, overextension of federal authority is rarely punished at the polls.
   

There is no easy way to limit or roll back the growth of federal power. Increasing public understanding of the problem is a necessary but difficult first step. The courts can also help by enforcing constitutional limits on federal authority. Nonlawyers rightly react with disbelief when they learn that Supreme Court has interpreted Congress’ power to regulate “Commerce . . . among the several States” expansively enough to uphold a ban on the possession of medical marijuana that was never sold in any market or left the state where it was grown. The Court has similarly erred in interpreting Congress’ power to spend for “the General Welfare” so broadly as to legitimize expenditures for local porkbarrel projects such as the “Bridge to Nowhere” that blatantly benefit parochial local interest groups at the expense of nation as a whole. Courts obviously cannot rein in federal power all by themselves. But they can provide a useful corrective.

The 21st century could be an extraordinarily successful time for American federalism -  but only if we restrain the growth of federal power.

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Ilya Somin is Associate Professor of Law at George Mason University School of Law. He will be appearing on Saturday's "Localism and Democracy" panel with Rich Schragger (University of Virginia School of Law, "Federalism All-the-Way-Down"), Ernest Young (Duke University School of Law, "Preserving Democracy's Laboratories"), and Ethan Leib (University of California Hastings College of the Law, "Constitutional Conventions: Getting 20/20 Vision About Them by 2020").
   
 

Federalism All-the-Way-Down

Crosspost from Balkinization

Progressive legal scholars have tended to gravitate toward national institutions in the quest for a revised and rejuvenated politics. The project of imagining the Constitution in 2020 is an example. With some exceptions, it is mostly concerned with goings-on at the highest level of government. Constructing a progressive vision of the Constitution that can be implemented by federal courts and promoting national progressive legislation appear to be the primary tasks.

This focus on national institutions may be strategically and politically limiting. Often progressivism comes from below rather than from above. Remember Justice Brennan’s exhortation to liberals to look to state constitutions for the vindication of rights. Remember also Louis Brandeis urging the young New Dealers to “end this business of centralization” and go back to their states to do their work. Brandeis in particular represents a decentralist strand of the early progressive movement that forcefully advocated the devolution of power to local democratic institutions, that championed an activist and experimental government, and that harnessed the energies of city and state leaders toward the protection of workers, the middle class, and the poor. 

What would a rejuvenated progressive decentralization look like today? First, as Judith Resnik’s essay in The Constitution at 2020 argues, it should not be the separate spheres federalism of the Rehnquist Court; it should also be “truly local” in a way that a states’-rights federalism is not. Federalism all-the-way-down means championing local governments and, in particular, cities as sites of a renewed progressive politics. Indeed, though the urban core of the New Deal coalition withered some time ago, the more recent resurgence of the cities has been accompanied by a noticeable rise in municipal regulatory ambition. Cities have extended marriage rights to gays and lesbians, passed minimum wage and living wage ordinances, embraced universal health care, adopted international environmental protocols, and engaged in progressive impact litigation on behalf of the city. Progressive mayors have engaged the task of reinventing education, housing, and economic development policy. Cities (and metropolitan regions more generally) are the engines of economic growth; they contain the bulk of the region’s highly educated workforce; and they are diverse and politically attuned. A renewed urban-based progressive politics seems within grasp. The urban-based reforms of the Progressive Era represent a useful model.

Second, progressives should reassert the relationship between political and economic decentralization. Willy Forbath, in his contribution to The Constitution in 2020, has argued that progressives should reclaim constitutional political economy. One way to do so is by clearly articulating the relationship between political decentralization and economic deconcentration. The current constitutional discourse’s preoccupation with federalism reflects a concern with concentrated, centralized public power, but it is not accompanied by an equivalent concern for concentrated, centralized private power. These two are linked, however, for—as republican political theory has taught—self-government is not possible when either government or business becomes too large. Antitrust and tax policy should be directed toward breaking up too-large concentrations of economic power, a goal that should be at the core of a progressive constitutional vision. Minimum welfare standards may be a part of that vision, but they are not an end in themselves. Rather, political independence and local economic self-sufficiency should be the watchwords of a progressive political economy.

       
The distrust of centralized economic and political power has a long (and oftentimes inglorious) pedigree in the United States.  But the mid-twentieth century association of decentralization with states’ rights is only part of the story. The political left should recapture the language of political and economic decentralization both because it is consistent with the left’s political values and because ignoring it is politically unwise. Consider how the public has reacted to the government bailouts of those financial institutions that have been deemed “too big to fail.” Consider also how the public has reacted to the possibility of a centralized, federally-governed health care system. These are connected, for our current version of liberalism does not have the resources to address the anxieties that accompany large-scale economic and political processes. Cosmopolitans on the right and left may dismiss it, but the search for communal and civic stability animates much of the distrust of centralized power. The rise of institutions that are too big represents a loss of control over one’s political and economic fate. Progressive Era decentralists recognized this and so should we.

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Richard C. Schragger is Class of 1948 Professor of Scholarly Research in Law at University of Virginia School of Law. He will be appearing on Saturday's "Localism and Democracy" panel with Ilya Somin (George Mason University School of Law, "The Promise and Peril of Federalism in the 21st Century"), Ernest Young (Duke University School of Law, "Preserving Democracy's Laboratories"), and Ethan Leib (University of California Hastings College of the Law, "Constitutional Conventions: Getting 20/20 Vision About Them by 2020").

Preserving Democracy’s Laboratories

Crosspost from Balkinization

As Judith Resnik’s contribution to the “Constitution in 2020” volume makes clear, American federalism has neither a progressive nor a conservative political valence. In Wisconsin’s beautiful statehouse in Madison, one can almost sense the ghost of Robert LaFollette and other early Progressives, who initiated reforms in the states before taking them national. Nor should we forget Henry Adams’s observation that, prior to the Civil War, “there was no necessary connection” between “the slave power and states’ rights. . . . Slavery in fact required centralization in order to maintain and protect itself.” During the Bush years, progressives trained since the 1960’s to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California’s right to go its own way on environmental policy and Massachusetts’ prerogatives to allow gay marriage at home and protest human rights violations abroad.  After 2008, progressives will be tempted to shift back to reliance on national power.  But what has once turned can turn again, and 2016 might well bring back the “bad old days” in Washington, D.C.

If both conservatives and progressives ought to value state autonomy, how can we preserve it in an age of runaway integration? Many have focused on either reviving constitutional protections for state autonomy—e.g., by interpreting the Commerce Clause in a more limited fashion—or construing federal statutes to minimize preemption of state law. Both are worthwhile endeavors. But the ultimate safeguards of federalism are political. Judicial protections are unlikely to avail much if the States lose the wellsprings of popular support that give weight to their representation in the national political process.

These days, those wellsprings often seem at risk of drying up. It is difficult to imagine many modern Americans choosing, as Robert E. Lee did in 1860, allegiance to their state over allegiance to their country. Today’s citizens are considerably more likely than their Nineteenth Century counterparts to live in multiple states over the course of their lives, and our media and political culture focus relentlessly on national politics. Local communities, moreover, seem generic and unlikely to inspire strong personal attachments. When David Souter left the Supreme Court to return to his beloved New Hampshire, he was considered highly eccentric for his steadfast sense of belonging to a particular place. And why not, when there is a Starbuck’s on ever corner regardless of whether one is in Greenville, South Carolina or Concord, New Hampshire?

States function as effective laboratories when innovative individuals are sufficiently committed to state political communities to press their ideas at that level. And the resulting innovations will be best defended against national pressures for uniformity when voters and politicians feel they have a stake in the state’s autonomy. A decline in state identity and distinctiveness thus threatens states’ ability to be laboratories and havens for minority viewpoints. The question is whether anything can be done to restore a sense of identity and public commitment in the states.

We may learn something here from an inverse debate in contemporary Europe. National identities in Europe have frequently been a function of ethnic and religious ties. As the European Union develops institutions of governance at the supranational level, however, Europeans have wondered whether democratic accountability at that level requires a pan-European politics based on a shared pan-European identity. Traditional national identities based on shared ethnic and religious ties, however, cannot be replicated at the European level. A prominent proposal to solve this problem involves “constitutional patriotism”—that is, a common identity based on shared liberal ideals of human rights and equal dignity. European identity would be based not on an ethnic volk but on a shared set of political commitments.

This shift in the nature of political identity resonates in America, where national identity has long rested on a form of constitutional patriotism. A similar solution may revive political identities at the state level that have waned as states become both more ethnically heterogeneous internally and more similar to one another in their ethnic and  religious makeup. Massachusetts might build a distinctive political identity based on tolerance of alternative lifestyles and a more generous set of social rights, and California might distinguish itself by its commitment to the environment. 

Not all state-based brands of constitutional patriotism would be progressive. Texas might gravitate toward rugged individualism and a commitment toward traditional notions of punitive justice.  But states need not be uniformly—or even predominantly—progressive in order to fulfill their functions as laboratories of progressive change. The critical thing is that individual states have the freedom to make their own policy choices and the ability to mobilize the loyalties of their citizens around those choices. If the progressive constitutional visions articulated in the 2020 volume are to be realized, many of those reforms will have to start in the states.
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Ernest A. Young is Alston & Bird Professor of Law at Duke Law School. He will be appearing on Saturday's "Localism and Democracy" panel with Rich Schragger (University of Virginia School of Law, "Federalism All-the-Way-Down"), Ilya Somin (George Mason University School of Law, "The Peril and Promise of Federalism in the 21st Century"), and Ethan Leib (University of California Hastings College of the Law, "Constitutional Conventions: Getting 20/20 Vision About Them by 2020").

     
 

Constitutional Conventions: Getting 20/20 Vision About Them by 2020

Crosspost from Balkinization

The Constitution in 2020 is at once an effort to articulate a theory of progressive constitutionalism that can counter the ascendency of conservative constitutionalism’s theory of originalism – and is an effort to imagine what such a progressive constitutionalism can realistically hope to accomplish in the medium term. Notably, a majority of the essays in the book appear to give up on judge-centered approaches to constitutional change and seek to bring about progressive ends through legislation and social movements. Whether this is because the authors of the essays just don’t have their five votes on the Supreme Court as of yet (the cynical perspective of one recent review) – or whether it is because they have really grown convinced of some of the disadvantages of judge-led constitutional change – the volume makes clear that today’s mainstream liberals in the legal academy are no simplistic defenders of judicial review, judicial supremacy, and judicial liberal activism. The romance of FDR might remain, but the romance of the Warren Court has faded for most. This shift has been underway for some time, to be sure, but today’s law students are more likely to see their liberal law professors questioning Roe in earnest than previous generations. Brown may still be untouchable; but this book helps the next generation see clearly that if they want to own their Constitution and have it represent the best of their own constitutions, there are democratic methods outside the judiciary to make that happen.

Yet with all the enthusiasm progressives now display for methods of constitutional change outside the courts – and some scholars in the volume can’t help themselves from bubbling over with hope in light of Obama’s election – no one in the book spends any time getting serious about the structural deficits of our virtually-impossible-to-amend document that render democratic constitutionalism particularly hard to achieve. No one takes seriously the idea that maybe progressives ought to be devoting efforts to unlocking some of the structural barriers to facilitating democracy, both locally and nationally, through formal constitutional change. Larry Kramer’s contribution to the book hints in this direction, perhaps, if only obliquely. And surely if Sandy Levinson had been invited to write a chapter, more of this perspective would have been included.

One might have expected more attention to recent battles in state constitutionalism in the volume especially, if only because progressives have ultimately prevailed in state courts with arguments the federal courts have thus far rejected.  But the ongoing liberal appropriation of “federalism” – a theme seemingly central to democratic constitutionalism – has virtually ignored the possibility of taking seriously some recent calls for constitutional conventions at the state level. One might learn a great deal about how to campaign for and run a successful constitutional convention to fix some of our structural barriers to a more robust democracy through super-democratic means that are neither judicial nor “merely” legislative.

A federal constitutional convention by 2020 is unlikely, of course.  But several states are considering tinkering with their basic charters: New York and California are very populous states with very active conversations on the subject. Progressives should be interested in these efforts for their own sakes because local politics must be part of any serious progressive agenda. They should be interested instrumentally and pragmatically too because statewide constitutional conventions can teach us a lot about how to run an effective federal convention down the road. A fabulous resource to get a historical and legal perspective on state constitutional conventions more generally is available here.

In light of my service on policy and legal teams helping “Repair California” think through the details of its own call for a constitutional convention and my own recent proposal with Chris Elmendorf of UC-Davis for a way to fix California’s pathological budget process entrenched in its state constitution, my aim at the upcoming conference celebrating The Constitution in 2020 in October will be to shine a light on the details of modern constitutional convention design and the challenges in store for progressives willing to entertain the idea that structural change and new basic charters may be necessary to give democratic constitutionalism a fighting chance.  We won’t have a federal convention by 2020.  But we can by then hope to watch and influence some conventions as they unfold at the state-level, learn to overcome “conventionphobia,” and, ultimately, refine what a convention should look like when we realize a new federal constitution is finally necessary to reclaim ownership over our political community from the dead hands of the past.

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Ethan J. Leib is Associate Professor of Law at University of California Hastings College of the Law. He will be appearing on Saturday's "Localism and Democracy" panel with Rich Schragger (University of Virginia School of Law, "Federalism All-the-Way-Down"), Ilya Somin (George Mason University School of Law, "The Promise and Peril of Federalism in the 21st Century"), and Ernie Young (Duke Law School, "Preserving Democracy's Laboratories").
 

Administering the Constitution in 2020

Crosspost from Balkinization

In February of this year, Stephen Reinhardt became the first federal judge to rule that section 7 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7 (2009), violates the Fifth Amendment’s equal protection provisions. Section 7 defines marriage for purposes of interpreting federal laws, regulations, rules, or agency interpretations to include only heterosexual unions. Judge Reinhardt issued his ruling after a federal public defender, Brad Levenson, argued that his employer violated Levenson’s constitutional rights when it determined that, because of DOMA’s definition of marriage, Levenson could not add his husband to his federal employee benefits. Remarkably, Reinhardt made this path-breaking ruling not on behalf of the United States Court of Appeals for the Ninth Circuit, but as the chairman of the Ninth Circuit’s Standing Committee on Federal Public Defenders. In other words, Reinhardt was acting as an administrator, not as a judge.

Since the inception of the Constitution in 2020 project, there has been spirited debate about whether courts or legislatures, national or subnational constitutions, and national or transnational adjudicative bodies are best suited to deliver progressive constitutional goals by the year 2020. I’d like to turn the conversation to an institution that has been largely absent from the Constitution in 2020 debates: administrative agencies.

Judge Reinhardt was not the first federal administrator to adopt a more progressive understanding of equal protection than most federal judges. During the 1960s and 1970s, administrators in a range of agencies advocated for, and adopted policies based on, a broader conception of state action and a more affirmative understanding of the government’s equal protection obligations than was found in the judicial opinions of the day.

For instance, in the 1960s and 1970s, administrators adopted the view that equal protection obligated agencies such as the Federal Communications Commission (FCC) to require that the businesses they regulated ensure equal employment. Even more surprising, administrators deemed regulated businesses—otherwise private companies—state actors with an independent obligation to ensure equal employment. The FCC ultimately adopted equal employment rules to this effect. Decades later, despite drastic changes in the Supreme Court’s equal protection doctrine and lengthy Republican control of the White House, even after the D.C. Circuit Court of Appeals struck the FCC’s equal employment rules down as a violation, rather than a vindication, of the Fifth Amendment’s equal protection provisions, the FCC still described its rules as implementing equal protection.

The Constitution’s life in administrative agencies has largely escaped the notice of constitutional scholars, political scientists, and historians of the United States. But progressives should consider administrators’ role in shaping the Constitution in 2020, because administration may be an underappreciated means of both achieving a progressive Constitution in 2020, and of preserving it in the decades that follow. Indeed, in the area of LGBT rights, interesting parallels with the equal employment rulemaking of the past are already emerging.

Initially, presidential policy inspired administrators to push for equal employment rules, but they nurtured their constitutional argument for these rules outside public view. Administrators first gestated the idea that equal protection mandated equal employment by regulated industries in the early 1960s. The inception of this constitutional policy followed in the footsteps of President Kennedy’s broader effort to use executive action to ensure non-discrimination in hiring by federal agencies and government contractors, an effort that was made at a time when legislative action seemed extremely unlikely. During this time, the constitutional argument for equal employment rules was the subject of internal memoranda, not public statement.

Over the 1960s, presidents, their priorities, and their parties changed, but the view that equal employment rules would implement equal protection persisted, even thrived, within administration. Indeed, when the FCC adopted equal employment rules in the late 1960s, it did so despite, rather than because of, President Nixon. The FCC also maintained its equal employment rules through the Reagan years, and defended them under George W. Bush. The administered Constitution, it appears, can not only instantiate particular constitutional understandings, but also preserve them.

This history suggests that administration offers opportunities for achieving a progressive Constitution in 2020, and for preserving it thereafter. In fact, there are already interesting parallels between LGBT rights today and the equal employment rulemaking of yesterday. As in the early 1960s, progressives are using administration—either by working from within, or advocating from without, to achieve progressive constitutional goals, most notably the equal treatment of same-sex couples. Brad Levenson’s grievance, which led to Judge Reinhardt’s DOMA decision, is one such example.

But there are also signs that equal protection concerns are influencing—or are ripe for introduction to—a range of administrative agencies. For instance, the Commerce and State Departments have both recently announced policies giving more equal treatment to same-sex couples. Meanwhile, the Office of Personnel Management (OPM) has vocally supported extending full benefits to the same-sex partners of federal employees.

So far, as occurred during the early stages of equal employment rulemaking, these policy changes are closely tied to the White House. In addition, these changes have not been publicly justified in constitutional terms. The history of equal employment rules, however, suggests that administrators’ commitment to equal treatment for same-sex couples, like their earlier commitment to equal employment opportunity, may yet ripen into constitutionally based policies.

Brad Levenson and Judge Reinhardt are not alone in pursuing equal treatment through administrative action. The history of equal employment rules suggests that such actions can lead to significant and durable policies implementing the Constitution, including in ways that diverge from or even conflict with court constitutionalism. The life of the Constitution in administrative agencies merits the attention of constitutional theorists and should be part of the Constitution in 2020 conversation.

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Sophia Lee is Assistant Professor of law at University of Pennsylvania Law School. She will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Richard Primus (University of Michigan Law School, "The Necessity and Peril of Ethical History"), and David Law (Washington University School of Law, "The Failure, and Future, of Constitutional Theory").
 

How Constitutional Theory Matters

Crosspost from Balkinization

Over the last quarter century, conservative intellectuals and opinion-makers have promoted their political agenda by (in part) tethering it to a family of constitutional modalities that, for the sake of convenience, we may place under a single surname: originalism. The originalism movement was born of a crisis of confidence on the right; it was part of a politics of backlash against the perceived excesses of the Warren and Burger Courts. Now, notwithstanding control of the White House and Congress, progressive intellectuals face their own crisis of confidence, and the question naturally arises: What will Our Originalism look like?

I think this is the wrong question for progressive intellectuals to ask. It overstates—or rather misunderstands—the role that constitutional theory has played in conservative politics and, in doing so, misunderstands the role that it could play in the progressive politics of our imagined future. The originalism movement has had two interrelated goals, one of which has had only limited success and the other of which has succeeded beyond any reasonable expectations. First, though not foremost, originalism has been aimed at crafting a conservative jurisprudence. Numerous planks of the Reaganite conservative legal agenda may be stated in arguably originalist terms: for example, opposition to abortion rights, restrictions on school prayer, gun control, private litigation against government officials, and procedural rights for criminal defendants. But if the goal was to use originalism to achieve this or some other set of originalist-grounded doctrinal objectives, it has not nearly been realized. There is District of Columbia v. Heller, of course, and state sovereign immunity has been beefed up considerably, but one is hard-pressed to identify any other significant doctrinal developments over the last 25 years that are both originalist (other than coincidentally) and consistent with traditionally conservative political commitments.

The limited jurisprudential utility of a resolute commitment to originalism makes perfect sense. No serious legal professional can be originalist in the way in which its promoters in the public sphere usually mean it: that constitutional interpretation will be dictated by the expectations of the ratifying generation. Most American women like their equality just fine, thank you. And so originalists, to be taken seriously, must water the doctrine down so as not too much to unsettle the vast architecture of settled law that is inconsistent with original understandings. In light of broad, unanticipated, and well-calcified expansions in the administrative state, in congressional and executive power, and in individual rights, there is surprisingly little of relevance for “faint-hearted” originalists to pick at. Moreover, and inevitably, many of today’s conservatives, including on the Court itself, like their executive power just fine, thank you. They have little taste for doctrinaire originalism. For these reasons, I have come to the view that the window for originalism-motivated constitutional change is closed for the foreseeable future, with relatively little to show for itself by way of doctrine.

As I said, however, affecting constitutional doctrine was not the foremost goal of the originalism movement. Rather, originalism’s brilliance lies in its capacity to validate conservative politics. Originalism is at once cousin and heir to meaningless terms like strict constructionism and judicial restraint, the crucial difference being that, within professional discourse, originalism is not meaningless at all. Rather, a serious debate can be had, and has been had, about what originalism entails, when it should and should not be used, and what its limitations might be. And thus the fight was joined. The originalism movement had champions both within the world of self-respecting legal professionals—most prominently, Judge Bork and Justice Scalia—as well as outside of it—including demagogues like Rush Limbaugh and Glenn Beck. Within non-professional discourse, the originalism movement has helped give a populist frame to elitist conservative politics. It has done so both by highlighting the countermajoritarian difficulty and by creating synergies between the rhetoric of legal advocacy and a particularly resonant American cultural narrative of restoration. If you’ve been persuaded that you “want your country back,” then those espousing originalism within judicial politics are selling what you’re buying. By helping to marry conservative politics to the professed meaning of the Constitution, originalism has been a powerful weapon in the right’s arsenal. Additional effects on doctrine then come not by way of originalist opinions but indirectly through what Jack Balkin and Sandy Levinson have called partisan entrenchment: successful conservative politicians have availed themselves of their right to stock the bench with like-minded judges.

For many progressives, this is a depressing account. It not only suggests that substantive doctrinal change must await a much more sustained period of political control than the current moment represents, but it also, more ominously, seems to imply that constitutional theory doesn’t much matter, or at least doesn’t matter in the way we often want it to matter. The dream of many progressive legal professionals is to articulate a theory of constitutional interpretation that, faithfully applied, accomplishes a set of liberal doctrinal objectives: perhaps mitigation of the state action requirement, abolition of the death penalty and wantonly excessive prison sentences, and defense and enlargement of the civil rights gains of the Warren Court in areas like desegregation, gay rights, and the rights of the poor. I am confident that that dream is achievable in the abstract and that, like originalism, some progressive constitutional theory can supply the right idiom if and when, in limited ways, these gains are made through judicial decisions.

I am not at all confident, though, that the more robust success of the originalism movement as a validator of conservative politics may be replicated for progressives. We adopt that label because we believe in progress rather than regress: by and large, our substantive political vision trades not in memory but in imagination. Judges are inherently limited in their imaginative capacity; they cannot ordinarily be counted on to lead revolutions, or even to countenance them. As a parade of scholars from Frankfurter to Bickel to Kurland to Bork to Berger to Ely (each of whom could, at a time, be described as progressive) has argued, even the Warren Court was not theoretically attentive or ambitious. If and when progressives coalesce around a coherent set of constitutional values, they will not likely resonate with traditional conceptions of the judicial role: they will be forward-looking and democratic, and will de-emphasize the judicial monopoly over constitutional meaning. In short, our revolution will not be theorized, not by academics and judges anyway. That is no reason to promote a jurisprudence of judicial minimalism, but it is every reason to expect one.
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Jamal Greene is Associate Professor of Law at Columbia Law School. He will be appearing on Saturday's "Constitutional Theory" panel with Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), Richard Primus (University of Michigan Law School, "The Necessity and Peril of Ethical History"), and David Law (Washington University School of Law, "The Failure, and Future, of Constitutional Theory").

The Necessity and Peril of Ethical History

Crosspost from Balkinization

Distinguish three forms of historical argument in constitutional theory: as positive authority, as practical experience, and as national ethos.

 
    (1) History deployed as positive authority purports to settle the meaning of clauses or doctrines by reference to things that happened in the past.  For example, the way language was commonly used in 1789 might be adduced to establish the meaning of “religion” in the First Amendment, and the practices of many different states over time might be adduced to determine whether a particular liberty is fundamental for the purposes of substantive due process. 

    (2) History deployed as practical experience aims to help decisionmakers translate normative constitutional visions into effective institutional arrangements.  It might point out that something taken as necessary is actually contingent; or that something regarded as happenstance has resisted numerous attempts at change; or that different institutions have had differing success in pursuing certain goals; or that an axiom of constitutional wisdom may be an inherited bromide rather than a cogent analysis of how government operates. 

    (3) History deployed as national ethos attempts to tell a story about the constitutional values of the American People.  We are a people who prize democracy, or federalism, or who fought a terrible Civil War to end slavery, or whose institutions presuppose a Supreme Being.

                                                                                                                              *        *        *

Of these three forms of argument, history as national ethos is often the most powerful.  It sometimes comes cloaked as one of the other kinds: many historical arguments that seem to sound in positive authority or practical experience are better understood as sounding in ethos.  They do their work if they persuade their audiences to accept not just the particular historical propositions for which they are offered but a general and value-laden impression about the meaning of American history.  Much originalist argument is best understood as argument about national ethos, inasmuch as it attempts to portray a heroic American constitutional past that supports a particular set of value choices in the present.  Much of what we call “redemptive constitutionalist interpretation” similarly deploys history as ethos.

Successful movements in constitutional politics are good at making historical arguments that sound in national ethos.  I hope that in the year 2020 progressives will stand securely on their versions of the national ethos in the sphere of constitutional politics.  But there is a danger here for scholars who are attracted to the arena of those politics. 

Because American history can be narrated in several different ways that highlight different (and conflicting) values, the interpreter who deploys history as ethos will privilege some values and shunt others aside.  The choice can be made with varying levels of self-awareness, but the narrative offered will always be partial and contestable.  Making those choices is an appropriate activity in politics, including constitutional politics.  But such simplifications are dangerous to the spirit of scholarship, which should embrace complexity rather than repressing it away.  Accordingly, constitutional theorists who work in the academy should beware of presenting their ethical narratives as—to use a phrase advisedly—the law.

This does not mean that good scholarship should not be normative.  It means only that the normativity appropriate to scholarship must be consistent with rendering the world in its complexity.  Where the dominant historical narrative supports undesirable constitutional politics, it is appropriate for scholars to showcase alternatives, thus pointing out that the world is complex and that the dominant narrative is not a necessary framing.  In that spirit, I have previously recommended the development of “mobilizable history” beyond what is conventionally made the source of constitutional argument.  But constitutional theory—or at least academic constitutional theory—should remain aware that any alternative narratives are also partial.  And public officials should strive to remember that complexity when making constitutional decisions now, in 2020, and beyond.

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Richard Primus is Professor of Law at University of Michigan Law School. He will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), and David Law (Washington University School of Law, "The Failure, and Future, of Constitutional Theory").
 

The Failure, and Future, of Constitutional Theory

Crosspost from Balkinization

Constitutional theory is in need of a paradigm shift.  It is obviously important to articulate an inspiring vision of what the country is and what we want the country to be, one that has the moral force and clarity to attract the kind of political support needed for meaningful policy change.  I agree wholeheartedly with the contributors to the Constitution in 2020 volume that constitutional law has a crucial role to play in this regard.  But in exalting constitutional law as an expression of nationhood and identity, and elevating the Constitution to the level of civic religion, we risk losing sight of a fundamental truth: constitutional law is, like any other form of law, an instrument of policy and a form of social technology.  It is no small matter to engineer peace and prosperity on a national and even international scale.  Yet a successful constitution is precisely such a feat of engineering.  Consider the most grievous calamities of the last century.  War, famine, genocide: we have not nature, but rather the failure of our methods and institutions for resolving disputes and allocating resources, to blame for these.  In other words, it is our technologies of government that fail us catastrophically. 

Law is a central component of the technology of government.  And if law is to society as software is to a computer, then constitutional law is the operating system: it is a framework that enables, constrains, and structures human activity.  From this perspective, it should be obvious that we can speak of both constitutional success and constitutional failure.  And it should also be obvious that what humanity desperately needs is a body of knowledge that guides societies toward constitutional success and away from constitutional failure. 

I would like to suggest that constitutional theory would be a more worthwhile endeavor, of greater value to humanity, if it were to do two things.  The first is to articulate the criteria of constitutional success, or the goals that constitutional policy should aim to achieve.  The second is to identify the constitutional choices that best advance those goals.  The most basic criterion of constitutional success is the Hobbesian one of avoiding a state of “perpetuall warre of every man against his neighbor,” in which conflict is endemic and resolved on the basis of strength and strength alone.  E. Adamson Hoebel, writing a half-century ago on “the law of primitive man,” deemed it the goal of law to avoid “ghastly explosion,” and he argued as a historical matter that those human societies that have endured have done so by expanding the scope of the law, by creating “effective instruments of procedure,” and by limiting and allocating the use of force in such a way as to enable “social authority” to prevail in the last analysis.  The limitation and allocation of force; the establishment of effective procedures for the emergence and resolution of conflict; the survival of society without “ghastly explosion”: although Hoebel does not call these criteria of successful constitutionalism, that is precisely what they are.

A society such as our own that is fortunate enough to take the possibility of “ghastly explosion” for granted (or, perhaps more accurately, one that has already endured its ghastly explosion and expunged its most egregious constitutional defect by way of a bloody civil war) rightly has higher and more extensive ambitions for its constitutional law than mere survival.  But it should be equally obvious that other countries are not (yet) so fortunate.  Nor is the international community, which remains characterized by what Hoebel called “primitive law” on a global scale.  Law exists, but vindication of the law is largely a matter of self-help; rules exist, but enforcement and observance of the rules occurs on the basis of non-legal considerations, and at the discretion of the powerful.  The prospect of ghastly explosion stalks the system.  The international legal order needs to be infused with principles capable of commanding allegiance, and to be backed by mechanisms and institutions that are capable of rendering those principles meaningful yet do not amount to a new, uniquely terrifying Leviathan of global government.  In short, the world is in need of constitutionalization.

Can constitutional theory rise to the challenge?

 Are we to have the kind of constitutional theory that is narrowly preoccupied with judicial hermeneutics?  Should we spend another fifty years debating the implications of the so-called “counter-majoritarian dilemma,” on the questionable assumption that such a dilemma even exists?  Is constitutional theory to be a parochial discipline that reaches no further than the country’s borders and treats the rest of humanity as largely irrelevant, except perhaps for historical purposes?

Or will we have the kind of constitutional theory that concerns itself with questions of institutional design, and on ascertaining which interests and outcomes are privileged by what kinds of rules, practices, and structures?  Will constitutional theory look beyond our borders for a better understanding of the impact of different design choices?  Will constitutional theorists seek to discern in domestic practice what is worthy of global constitutionalism, and find in global constitutionalism what is worthy of domestic practice?  Can constitutional theory help to foster a dialectic that advances not simply the development of American constitutional law, but rather the development of constitutionalism more generally?

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David S. Law is Professor of Law and Professor of Political Science at Washington University School of Law. He will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), and Richard Primus (University of Michigan Law School, "The Necessity and Peril of Ethical History").

 

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