Coming Soon

The Constitution in 2020 Conference might not begin until Oct. 2, but -- on or around Sept. 16 -- we'll begin running posts from the scheduled panelists. C2020 visitors should take this opportunity to read, comment, and pose questions... in short, to sit down in the front row and get the conference started early.

So, check back, tune in, and blog out. And, of course, remember to register for the conference.

Register for the Constitution in 2020 Conference - Oct. 2 -4 @ Yale Law School

The Constitution in 2020 Conference -- beginning on October 2 and running through 4 at Yale Law School -- will bring together some of the nation's top legal scholars, lawyers, and practitioners (legal and otherwise) to discuss the future of the Constitution. A list of the scheduled panels and their participants is available here.

Click here to register now. Discounted rates are available for ACS students.

2020 News

The newest addition to the site is our "2020 News" page, where you can catch news items related to The Constitution in 2020. Up now are streaming videos from this summer's National Press Club event (featuring Walter Dellinger and Mark Tushnet) and ACS Convention (featuring William Forbath, Rachel Moran, Larry Kramer, and Vicki Jackson), as well as a podcast of Jack Balkin's interview on KERA (Dallas).

A Guide and Comment on Forbath’s "Social and Economic Rights in the American Grain"

     While it is important to ponder our constitutional future, I often think that the story of our future is in large part the story of our past. Narratives legitimize our future plans.  Narratives allow people to see constitutional changes not just as “good,” but good for them, and not just as “right,” but in accordance with a collective, American sense of right. In his contribution to The Constitution in 2020 (“Social and Economic Rights in the American Grain,” chapter 6), William Forbath tackles this challenge directly, outlining a new narrative to reestablish positive social and economic rights. As future-oriented as his project may be, he’s heading toward the future through a sort of archaeology of the past, attempting to unearth a tradition of “American social citizenship” that has been largely buried beneath a dominant narrative of laissez-faire. From Forbath’s standpoint, this buried narrative “is at least as resonant today as its laissez-faire rival,” a narrative that underwrites equal distribution of opportunities and life chances, or, in his words, an equal distribution of “the initial endowments and security (like education and health and old-age insurance) necessary to take risks and fulfill personal responsibilities and citizenly duties.” 
    If Forbath is right – that there is more than one American constitutional tradition – then the true question we need to ask is whether Forbath’s narrative could successfully stimulate future progressive constitutional change.  In the movement for change - in the newspapers, on the internet, in interviews, in conventions, and on the congressional floor - will Forbath’s story resonate with the American people?  My answer is a qualified yes. But here the positive rights that Forbath envisions have to take on a uniquely American character.  And, by “American,”  I mean that these rights will have to pay heed to market principles, be compatible with economically smart policy, and avoid court-centered enforcement.

Watch Judge Sotomayor's Confirmation Hearing

MSNBC is providing live streaming video from Judge Sotomayor's confirmation hearing. You can catch the proceedings here.

Constitutional Right and Normative Frameworks: The Information Age

Lingering in the background of many of the articles appearing in The Constitution in 2020 is a debate about the rhetorical framing of rights and policy.  The debate is perhaps nowhere more evident than in the transition from Robert Post’s "A Progressive Perspective on Freedom of Speech" to Yochai Benkler’s "Information, Structures, and the Constitution of American Society." The authors of these two articles agree on the underlying goals of information policy: that it should encourage the public to participate in a democratic culture, foster a democratic society, and promote democratic legitimacy.  (Benkler assumes that we should “strive for a more democratic society, where individuals are ever more free and equal citizens”  (Benkler at 195). Post notes that “[t]he First Amendment safeguards the ability of persons to participate in the formation of public opinion so as to preserve the democratic legitimacy of our government”  (Post at 182). Both Benkler and Post train their arguments on similar countervailing interests (the commercial and the individual) and come to similar conclusions (generally favoring the individual).)

Despite their similar goals, Post and Benkler present markedly different ways of reaching those goals.  These different strategies create a tension, reflecting the authors’ divergent agendas. 

2020 Readings -- Staff Picks

Readers interested in delving into other sources that comment on 2020’s main themes should regularly consult our 2020 Readings section, where we’ll be actively compiling (with your help, of course) works that will be useful for creating specially themed reading groups, crafting research projects, or creating your own personal reading list. For starters, the 2020 staff recommends the following:

Two Questions for the Establishment Clause

In different ways, Noah Feldman and William Marshall critique the received liberal wisdom concerning Establishment Clause jurisprudence.  Feldman argues that we should adopt the “no money, no coercion” principle of the Founders.  This means the government should reduce religious groups’ access to public funds through faith-based social service or school voucher programs, but become more tolerant of symbolic, non-coercive public endorsements of religion, such as Ten Commandments displays.  Meanwhile, after surveying the values and shortcomings of secularism, Marshall concludes that government should allow religious groups to receive funding, under certain conditions, but should be diligent in preventing new public endorsements of religion.

Two important practical questions emerge from these pieces.  First, to what extent, if any, should religious groups who perform social services be eligible for public funds?  Second, how should we understand the relationship between symbolic endorsement of religion and coercion?

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 3)

Responding to Jeremy Kessler's Counterpoint
 
Point: Daniel Winik
 
Thanks, Jeremy, for a well-reasoned counterpoint. We seem to agree on many fronts—and in particular on the wisdom of campaigning for marriage equality state by state, rather than aiming to achieve it nationally in one fell swoop. In that vein, I think both of us would endorse Bill Eskridge and Darren Spedale’s view that now is not the time for a federal Equal Protection challenge to Proposition 8.

Jeremy addressed mainly the legislative element of incrementalism, rather than the federalist element, so I’ll focus my response on that contested ground.

Obama's Inauguration: A Progressive Approach to Religion in the Public Sphere?

 

"We know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus – and nonbelievers."
 – Barack Obama’s Inaugural Address, January 2009

Since George Washington invoked “the Almighty Being” in his first inaugural address, prayer has opened America's Presidential inaugural ceremonies.  Recent Presidents -- Republicans and Democrats alike -- have chosen religious figures who have offered broad ecumenical prayers to appeal to the widest range of people.

But, in a departure from the norm, Barack Obama chose voices from extreme ends of the political spectrum and wove them together into a pluralistic patchwork of public religious expression: the first openly gay Episcopalian bishop commenced the festivities, an evangelical preacher known for his opposition to gay marriage offered the invocation, and a veteran civil rights leader delivered the benediction.  At the National Prayer Service the next day, the first female president of the Disciples of Christ gave the sermon, and Muslim, Hindu, Jewish, Protestant, and Catholic leaders offered prayers from their faith traditions. (To see video coverage of the festitivites, click here.)

Never before had an inaugural ceremony embraced such radically inclusive religious representation.  Obama was the first to give a prominent place to Muslims and Hindus, both in the ceremony and his inauguration speech.  (The Bush and Clinton inaugurations were racially diverse but remained almost exclusively Judeo-Christian, prominently featuring Billy Graham.)  Can Obama’s inauguration hold up a picture of a new progressive approach to religion in the public sphere?