The Transformative Potential of Muslim America

Crosspost from Balkinization

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 transformative potential. 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," target="_blank">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. Rumsfeld concurrence 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, 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 is a win-win proposition.

Three brief examples show this dynamic: Consider first how 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 home 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. Few 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, increasing mitigating influences on that lawless state and building security here, 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 grows, the US has displaced more and more of its detention operations to other countries. Recently minted regulations endorse this continued outsourcing to Pakistan and other allies. The price of this displacement, however, 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: But fledgling organizations such as Muslim Advocates are promising sparks of change. Their mobilization and increased voice, however strong it proves, can only improve the Constitution in 2020.

Aziz Huq is Assistant Professor of Law at The University of Chicago Law School. He will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Jenny Martinez (Stanford Law School, "Constitutional Rights as Human Rights?"), and Jon Michaels (UCLA School of Law, "Executive Authority in a post-Westphalian World").

Locating Union Rights

Crosspost from Balkinization

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

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

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

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

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

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

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

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

Benjamin Sachs is Assistant Professor of Law at Harvard Law School. He will be appearing on Saturday's "Social Rights" panel with Risa Goluboff (University of Virginia School of Law, "Social Rights") and Jacob Hacker (Yale Law School, "The Democratic Case for Tackling Economic Inequality").

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