Panel Recap – Roundtable: About the Constitution in 2020

Bringing together four of Yale Law School’s constitutional heavyweights, last Friday’s roundtable discussion was both backward- and forward-looking. Moderated by Duke’s Neil Siegel, the panelists spoke about the Constitution in 2020 as a movement, where it came from and what it aspires to achieve. After Reva Siegel introduced the Constitution in 2020 project, Robert Post spoke on democratic constitutionalism, Jack Balkin examined the purposes of a constitutional theory, Bruce Ackerman highlighted a constitutional concern for economic justice, and all the professors debated the future of the Supreme Court and its appointment process.

 Video courtesy of Yale Law School.

 

Reva Siegel recounted how this "Constitution in 2020" endeavor was instigated in response to a conservative project called the Constitution in 2000. The Constitution in 2000 was a document produced within the Reagan Justice Department in 1988 setting forth favored and disfavored lines of constitutional decisions. The document was a blueprint for change, imagining how a more conservative constitutional terrain could be achieved through judicial appointments and constitutional litigation. It was utopian, but restorative. It was also highly successful. Now it has spawned a responsive vision, the Constitution in 2020 project, which includes conferences, a book, and this blog.

Progressive Constitutional Theory

 

Does an active and progressive national government require liberal constitutional theorists to articulate and then advocate a comprehensively liberal theory of constitutional law?  “No” seemed to be the answer offered by the Constitutional Theory panel at the recent Constitution 2020 conference at the Yale Law School.

 Video courtesy of Yale Law School.

 

For the budding constitutional theorists among us, Jamal Green’s opening comments provide a word of caution.  Since the role of constitutional theorists “is actually quite narrow,” Green claimed that progressives should not worry too much about trying to convince judges to adopt liberal modes of constitutional interpretation.  Contrary to popular belief, Green suggested that originalism, the right’s preferred model of constitutional interpretation, has not actually accomplished as much as its proponents or opponents think.  Rather, it has simply served as a handy rhetorical device the right has used to buttress the work that is done in the political sphere.  Since the left does not have anything as rhetorically useful, progressives should focus primarily on creating a progressive constitutional discourse from which liberal jurists can draw as opportunities arise. 

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.

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