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Amendment 8Panel Recap: Individual RightsThe 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.
Posted on October 12, 2009 @ 4:54 pm
Discrimination, Violence, and the ConstitutionCrosspost from Balkinization The essays in The Constitution in 2020 ask not only what the Constitution can do for us, but what we can do for the Constitution. In other words, the book offers both visions of what constitutional law should be and concrete suggestions for how to make it so. Optimism—pragmatic, cautious, yet still resolute—characterizes discussions of equal protection, social and economic rights, free speech, and religious liberty. The book says very little, however, about the most litigated provisions of the Bill of Rights, the provisions to which individuals facing an exercise of state power most often appeal. I refer to constitutional criminal procedure, and I wonder: Is the criminal justice system no place for constitutional optimism? Is criminal justice a realm where we can do little with the Constitution, and where it can do little for us?
Posted on September 27, 2009 @ 11:46 am
A New Use for Federalism? The Benefits and Constitutionality of Randomness in Federal PolicymakingDetermining whether progressives should pursue change through the legislatures or the courts depends on our understanding both of what each of these institutions should do and of what these institutions are capable of doing... and they might be more versatile than we've come to assume. As Adam Chandler explains, social science methods point to some interesting uses Congress could make of federalism.
Where laws and regulations differ across state borders, researchers are provided with natural tests of the impacts of those policies. For instance, folks with statistical training can use geographical panel data techniques to discover the effect of a law that is enacted in multiples states at staggered times. Such studies have been done on the deterrent impact of capital punishment and the impact of right-to-carry laws on crime rates to give just two examples. These analyses, however, are necessarily retrospective and constrained by inference techniques. Extensive and careful effort must be used to control for, among other variables, the underlying reasons some states enacted the laws and others did not. More often than not, the resulting answer is that there is not enough evidence to draw a conclusion. Perhaps the law could grant twenty random states the funding for a new sexual education curriculum. Then some years later, we could determine the new curriculum’s impact on teen pregnancy rates by comparing the twenty “experimental” states’ teen pregnancy rates to the rates in the thirty “control” states. In this way, such a law could provide one of the first nationwide experimental tests of a policy’s effectiveness. That is, perhaps our country’s federalist structure could allow us to use the states as policy laboratories. Could this be a new use for federalism?
Posted on June 18, 2009 @ 6:11 pm
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The Constitution in 2020 is a companion website to The Constitution in 2020 (Oxford University Press 2009). Here you will find ten sample chapters from the book, essays about the future of the U.S. Constitution, discussions of current constitutional issues, a bibliography and resources for further study. Recent blog posts
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