Amendment 1

Panel Recap: Individual Rights

The panelists on the Individual Rights panel pushed the boundaries of the panel’s theme in two ways.  First, they did not engage in a definitional debate as to what individual rights are protected by the Constitution.  They instead focused either on creating a framework that would allow other actors to engage in the interpretation debate or on theorizing new tools for realizing constitutional rights.  Second, the panelists suggested that a progressive vision of individual rights in 2020 may not be focused on the individual at all – the best way to protect individual rights may be through a reimagination of the social infrastructure. 
As Professor Rick Garnett noted, the quintessential image associated with individual rights, that of the lone dissenter, is still important; it remains the recipient of these rights and one of its protectors.  However, the de-contextualized individual was largely absent from a conversation about individual rights that was dominated by institutions, social organizations and movements, identity groups, and our social environment.
This is not to suggest that the panelists’ presentations were similar; as you'll see, although the panelists shared some common ground, each tackled divergent aspects of this broad category of constitutional rights:

Video courtesy of Yale Law School.

Professor Elizabeth Emens started the discussion off by positing that anti-discrimination law is trapped in an “individual bad actor” model which fails to address institutional structures that lead to disparate impact, and that a progressive vision of individual rights must correct this failure.  She suggested that disability law may be a helpful analytical tool for reimagining “the anti-discrimination project.”  By locating the idea of disability between the individual’s impairment and the social environment, disability law is able to “focus on structural change without losing sight of the individuals,” a focus that Professor Emens is optimistic might benefit anti-discrimination law.
Professor Garnett and Professor Paul Horwitz both argued institutions are not only mediums through which people may express their rights, but also are [mechanisms?] capable of protecting these rights.  Professor Garnett argued that the right to religious freedom is best protected and served by ensuring that non-state institutions, including churches and other religious organizations, flourish.  Professor Horwitz posited that the First Amendment doctrine would be best served by learning from the best practices these institutions have developed over time, and by reconsidering the relationship between courts, institutions, and the rights themselves.  In the long run, they argue, protecting these institutions may be the best way to protect the rights of the individual—even acknowledging that these institutions may not always support those individual rights. 
Professor Alice Ristoph concluded the panelist presentation portion of the session.  She discussed the possibility of identifying an anti-violence norm in the Constitution.  While anti-discrimination would only prevent the use of [more?] force against one group, Professor Ristoph expressed some optimism that the Constitution might contain instead a norm that curtails the government’s use of violence in pursuit of goals such as criminal justice or national security.  She also expressed concern that the constitution and citizens themselves may be used to rationalize government violence.
The panelists considered several intriguing questions posed by audience members during the later half of the panel. Professor Emens and Professor Ristoph debated about how much work anti-discrimination might do in bringing about an anti-violence norm.  In response, Paul Kahn, who moderated the panel, suggested that their debate illuminated two distinct views of state action as an actor in the protection of state rights: either rights constrain the state, or they guide the state toward positive obligations of accommodation. 
Judith Resnik challenged the premise that federal courts might assist in identifying and protecting an anti-violence norm, noting that they often have tolerated vast amounts of violence.  She also asked how a social movement might engender actors who are less frightened and more willing to support this norm.  Although her points were directed toward Professor Ristoph, others queried whether different fears—of stigmatization and vulnerability—might prevent people from linking disability law with anti-discrimination law. 
Reva Siegel expressed concern that the accommodation model of disability law may be too general a mode of equality that lacks the “granular, group-specific answers” that are needed because discrimination affects distinct communities and groups differently.
Professor Horwitz acknowledged that he and the other panelists have theories that, if implemented, would substantially change the toolkit currently in use for protecting individual rights.  He considered whether it is worth changing the toolkit, given the transition costs of doing so; and whether these additions and changes illuminate the appropriate tools to use.    
The panelists and audience members raised a number of important issues; here, I offer a few additional questions that hopefully build upon these contributions.  First, I noted above that the panelists tread common ground in their treatment of the individual in relation to other actors.  Taking first the theories of Professor Garnett and Professor Horwitz – the strength and historical significance of institutions both support their theories, but also beg the question as to how much stronger non-state actors should be made; is there a tipping point beyond which they will no longer be protectors of individual rights and instead become limits to these rights? Even if social organizations shore up individual rights in the long run, is this enough to warrant the strengthening of institutions that may not be supportive of some rights of the individual? 
This question might be asked more broadly of all the panelists: in a discussion of contextualized individual rights, what is the right balance between the lone dissenter, the individual as a social being, non-state institutions, and the government?  Finally, what happens to any of the theses presented when we consider a fact that emerged from the discussion: that individuals, social organizations, and even the state may be either a useful tool for protecting or a roadblock to the realization of constitutional protected rights, in addition to being the intended recipient of these rights?

The First Amendment in 2020: An Institutional Perspective

Crosspost from Balkinization

Justice Oliver Wendell Holmes once famously wrote, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” The difficulty of this advice should not be underestimated – especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have “a deeply felt desire . . . to achieve noninstrumental certainty in the law.” And Fred Schauer has written of the lawyer’s tendency to think in terms of “juridical categories” rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers’ greatest gift and their greatest handicap.

The law of the First Amendment abounds with evidence of the lure of acontextuality. Across a range of First Amendment doctrines dealing with very different forms of speech, worship, association, and institutional and discursive frameworks, we see judges and scholars hoping to find some frame, some word or concept, that will bring a theoretically pure and coherent shape to the whole of First Amendment law, with little apparent regard for who is speaking or what is being said. “Equality,” “neutrality,” “content-neutrality,” and many more buzzwords are touted as the path to an analytically pure First Amendment. 

Invariably, these proposals fail to win complete agreement. But that does not appear to extinguish hope for some Grand Unified Theory of the First Amendment. If one of these concepts is revealed as a failure, if it does not capture all of the First Amendment within its grasp, then some new candidate will take its place soon enough. Like Gatsby, First Amendment theorists think: “It eluded us then, but that’s no matter – tomorrow we will run faster, stretch out our arms farther.  And one fine morning . . . .” Yet the next morning dawns, and everyone seems to agree: despite the effort to impose some order on the First Amendment, it remains “notoriously scattered and confused, a jumble of incompatible and indeterminate tests,” as Robert Post writes in one of his contributions to The Constitution in 2020.

Is there a better way to proceed? I believe there is. In fact, a number of First Amendment scholars, of whom I am only one, have argued that the way out of the First Amendment impasse lies in resisting the lure of acontextuality itself. We should refashion the First Amendment from the bottom up – from the distinct and varied structures, institutions, and social practices in which public discourse actually takes place, rather than hoping to find some concept or rule that will apply to all of them. We should take Holmes’s advice and think things, and let the words that describe and order them emerge organically rather than being imposed upon them.

Both Robert Post and Yochai Benkler, in their contributions to The Constitution in 2020, take something of this approach, although I would not expect them to agree with all (or anything) I say here. Post writes that we should begin our efforts to understand the First Amendment by focusing on the nature and role of public discourse, and asking how the First Amendment can strengthen and “sustain a healthy public sphere.” Benkler writes that liberty is not simply a matter of “the Constitution as law,” but consists also of “patterns of human communication and expression.” Human flourishing, he says, is “less affected by ‘the Constitution’ as a formal legal category than by the confluence of formal rules within the economic, social, and technical structures that make up the actual context within which human action, alone and with others, occurs.”

This, I believe, is a much better place to start reshaping the First Amendment, whether in 2020 or tomorrow. In my work, one place this starting-point leads us to is a deeper consideration of the role of what I call “First Amendment institutions.” (I follow Schauer in using this term, although not always to the same effect.) Public discourse often takes place in and through institutions. That includes most especially a range of traditional and fairly readily identifiable institutions that have grown up alongside our constitutional and social structure: libraries, universities, schools, religious associations, voluntary associations, the press, and others. It includes, too, emerging institutions, often more inchoate; the Internet, with its varied speech structures, is surely one of the most important of these. These institutions have their own, varied forms of discourse formation, their own norms and practices, their own forms of self-monitoring and self-regulation. 

Rather than impose some rule or principle that might attempt in vain to capture each of these institutions and their practices, we might instead proceed by thinking about these institutions more closely, asking how they act and self-regulate, and deferring substantially to them as they develop their own evolving sets of best practices. We might grant them substantial autonomy within their given spheres – not absolutely, and not because we suppose these institutions are perfect, but because we believe that they can do a better job as seedbeds of First Amendment doctrine and sites for public discourse than the courts could do by subjecting them to a set of ultimately unresponsive and incoherent acontextual rules. Just as Mark Tushnet has talked about the Constitution outside the courts, so we might think of a First Amendment outside the courts – one that is more institutionally diverse and responsive to institutional practices, one that emerges largely from the institutions in which public discourse actually takes place.

Much more, of course, needs to be worked out about this. It is not an approach that gives the main spotlight to either the individual or the state, as current First Amendment doctrine is wont to do, and both of these key players need their own place within First Amendment institutionalism – or a place entirely of their own. And it is certain that some of the potential implications of a thorough-going institutionalist approach might be off-putting to some, particularly those who think private institutions ought to be governed by generally applicable and acontextual laws, such as anti-discrimination laws. Given the number of institutions that are substantially self-regulating and have a long history of institutional practices, but that are nominally public, a First Amendment institutions approach might also raise questions about current state action doctrine – an issue about which Mark Tushnet raises his own questions in The Constitution in 2020. 

I do not, therefore, pretend to provide a complete road-map to the institutional First Amendment as it might look in 2020. But I want to urge us to think about it. I want to suggest that the very real questions and transition costs raised by this approach are not insurmountable. Moreover, those costs only look prohibitive if we believe that a coherent acontextual First Amendment is possible, and that it best serves our needs and contributes to the healthy development and maintenance of public discourse. After decades of laments for both the incoherence of First Amendment doctrine and the poverty and paucity of public discourse, however, I think there are fewer grounds than ever for believing that this is so. Public discourse emerges from institutions that in some cases pre-existed and in other cases grew up alongside the First Amendment, and those institutions and their practices are sticky and largely self-sustaining. They are not simply creatures of the First Amendment. But the First Amendment might develop in a stronger and more socially responsive way if it were their creature. The First Amendment itself is a mere formula of words that might make more sense if we began by thinking about the existence of things, including institutions, in the world.


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, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

Subscribe to RSS - Amendment 1