constitutional theory

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.

Robert Post followed Professor Siegel, explaining the seeming paradox of “democratic constitutionalism,” one of the constitutional theories at the heart of the 2020 project. “Democratic” evokes politics, the will of the people. “Constitutional” evokes the limits on that political will. But the two are conjoined because a constitution must be democratically legitimate; it must be a constitution of the people. A constitution, given to us by the past, becomes ours through a process of “norm contestations.” Such contestations cause us to read the document differently, and in this way, the cultural values of a generation and that generation’s understanding of the document are linked. For example, the same-sex marriage controversy is being fought in many states, about state laws, but we know that our federal constitution is at stake in these contestations. Such challenges make us reconsider what we think of as part of America’s constitution.

Jack Balkin discussed three basic purposes of a constitutional theory like democratic constitutionalism: (1) legitimation, (2) dissent, and (3) persuasion. When constitutional theories legitimate, they articulate, in a way that people can understand, why what courts, legislatures, or presidents have done is legitimate. Second, when the people in power are not “your people,” you need a theory of interpretation to dissent from what is otherwise decided. Originalism was a classic method of dissent from the early 1970s to early 1990s. Finally, the basic way that the constitution changes over time is that people persuade one another that they are not thinking about the constitution correctly. In this way, an interpretive theory can change constitutional common sense. Appointments are just one piece of the puzzle: changing the constitutional culture through persuasion is more potent.

Finishing up the presentations, Bruce Ackerman distilled the constitutional development of the last two centuries down to two themes: identity (who are we?) and economic justice. These themes have alternated in prominence throughout our history, and Ackerman argued that we should return to a focus on economic justice. Over the last sixty years, we have made a lot of progress on the identity front, but have regressed on the quality of economic life in America. We are a much more unequal society today, economically, than we have been since the Great Depression. Ackerman claims that landmark statutes like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 are part of our constitutional order. Accordingly, he would like to see new landmark statutes on economic justice, environmental issues, and what will happen after the next attack.

Neil Siegel concluded the roundtable by posing questions on the Supreme Court confirmation process and the difference between aspirations and reasonable exectations for 2020 (after all, Justices Scalia and Kennedy will probably still be on the Court in 2020). In response to the first question, Reva Siegel lamented the fact that Americans lack the political vocabulary to talk about how judging is not just politics, but neither is it just impersonal mechanics outside the sphere of discretion.

Professor Balkin responded that the stakes have been increasing with each nomination since the 1980s because the Justices are not leaving the Court with the same frequency. Balkin recommended that the President make an appointment every two years, and if there are more than nine Justices as a result, then the most junior nine should decide most cases.

On the second question—aspirations versus reasonable expectations for the Supreme Court—Ackerman was dismissive, reminding listeners that the Court is historically a laggard in the construction of a new constitutional regime. Brown is a too-memorable exception when the Court took the lead. Reva Siegel reflected on the birth of the Constitution in 2020 project in 2004-2005 and concluded that the country has since changed in ways that were unimaginable then. Change is possible, she reiterated, a fitting and hopeful conclusion to the roundtable.

I will leave you with some questions raised by the panelists’ discussion. Most fundamental to the Constitution in 2020 project: what is the best strategy for changing the constitutional culture? In Professor Balkin's words, how do we take what is off the wall and put it on the wall? Is it through a new constitutional theory, like democratic constitutionalism? Is it through constitutional litigation? Through judicial appointments? Through landmark legislation? Are Article V amendments out of the question? And how central is the Supreme Court to the endeavor? These questions anchored the conference, and the answers we come up with will dictate whether the Constitution in 2020 enjoys the same success as the document that provoked it.

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. 

Sophia Lee also suggested in her comments that being ambitious is not always the best way to bring about progressive change.  Administrative agencies, in particular, offer opportunities for accomplishing progressive objectives in ways that are often ignored.  If our goal as progressives is to see progressive change, how much does it matter the manner in which that change takes place?  Lee’s argument is not simply one of pragmatism, though – since she believes that administrative agencies are actually more competent to sort through certain civil rights questions. 

Richard Primus offered a warning to progressive constitutional theorists who neglect the importance of professional role differentiation.  Political and legal movements are most effective when they are rooted in an “ethical history” that resonates with a national ethos.  This ethical history is effective because it provides a simple framework into which particular principles can be fit.  It traffics in normative values, unlike the disinterested form of history that social scientists use to explain and describe. Since constitutional experts are often historians and theorists, scholars as well as activists, they face the difficult task of balancing political influence and academic integrity.  At the end of the day, scholars must acknowledge their normative commitments but also be very wary of using history simply to buttress a politically useful narrative, according to Primus.

David Law, the last of the four panelists to speak, was perhaps the one least enthralled with those who “fetishize” the constitution and most frustrated by those who see the constitution as some substantive embodiment of a national narrative, rather than simply a technical tool for accomplishing certain policies.  As Law argued, to spend time discussing abstract problems such as the counter-majoritarian difficulty might be intellectually rewarding for a small cadre of constitutional theorists, but it is too many steps removed from the day-to-day processes of constitutional practice to be of much practical worth.

Picking up on the panelists’ preference for modesty, moderator Paul Kahn used his time to question the “theoretical minimalism” that characterizes the pieces in the Constitution 2020 book and the presentations of the Constitutional Theory panelists.  Gone are Bickel and Ely.  Missing are “veils of ignorance,” Herculean judges, and “ideal speech situations.”  In their place we find those who focus on the particular rather than the general and those who advocate change on technocratic rather than philosophical grounds. Kahn, it seemed, was not entirely comfortable with this trend in constitutional theory.

Questions in the audience picked up on some of Kahn’s observations and touched on other important relevant questions.  One audience member asked if constitutional theorists’ theoretical minimalism was the product of a growing recognition that comprehensive theories and histories inevitably leave out certain groups and particular narratives.  Another suggested that certain ethical histories were simply truer than others and that constitutional scholars have an obligation to cite the right history.  Yet another asked if we should try to understand “truth” as primarily rhetorical.

The panelists fielded many tough questions, but others remain.  For constitutional theorists who value bridging theory and practice, how should we mark where one begins and the other ends?  And might it be the case that constitutional scholars do in fact have more influence than the panel suggested?  Could it be that disclaiming influence represents an effort to avoid responsibility for some of the struggles of liberal politics and constitutionalism during the last generation? 
 

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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Of these three forms of argument, history as national ethos is often the most powerful.  It sometimes comes cloaked as one of the other kinds: many historical arguments that seem to sound in positive authority or practical experience are better understood as sounding in ethos.  They do their work if they persuade their audiences to accept not just the particular historical propositions for which they are offered but a general and value-laden impression about the meaning of American history.  Much originalist argument is best understood as argument about national ethos, inasmuch as it attempts to portray a heroic American constitutional past that supports a particular set of value choices in the present.  Much of what we call “redemptive constitutionalist interpretation” similarly deploys history as ethos.

Successful movements in constitutional politics are good at making historical arguments that sound in national ethos.  I hope that in the year 2020 progressives will stand securely on their versions of the national ethos in the sphere of constitutional politics.  But there is a danger here for scholars who are attracted to the arena of those politics. 

Because American history can be narrated in several different ways that highlight different (and conflicting) values, the interpreter who deploys history as ethos will privilege some values and shunt others aside.  The choice can be made with varying levels of self-awareness, but the narrative offered will always be partial and contestable.  Making those choices is an appropriate activity in politics, including constitutional politics.  But such simplifications are dangerous to the spirit of scholarship, which should embrace complexity rather than repressing it away.  Accordingly, constitutional theorists who work in the academy should beware of presenting their ethical narratives as—to use a phrase advisedly—the law.

This does not mean that good scholarship should not be normative.  It means only that the normativity appropriate to scholarship must be consistent with rendering the world in its complexity.  Where the dominant historical narrative supports undesirable constitutional politics, it is appropriate for scholars to showcase alternatives, thus pointing out that the world is complex and that the dominant narrative is not a necessary framing.  In that spirit, I have previously recommended the development of “mobilizable history” beyond what is conventionally made the source of constitutional argument.  But constitutional theory—or at least academic constitutional theory—should remain aware that any alternative narratives are also partial.  And public officials should strive to remember that complexity when making constitutional decisions now, in 2020, and beyond.

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Richard Primus is Professor of Law at University of Michigan Law School. He will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), and David Law (Washington University School of Law, "The Failure, and Future, of Constitutional Theory").
 

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