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.”

Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom

Crosspost from Balkinization

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea.  Here it is:  Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities.  The Jacobins were wrong.  In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

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.