Article III, Section 1: Federal Courts

Panel Recap - Getting There from Here

The capstone of the conference, Sunday’s “Getting There From Here” panel, sought to take theoretical insights gleaned over the weekend and suggest how they might be put into practice. If most panels called for keener eyes and longer, or deeper, vision, the final panel called for tougher hands. It featured: Tom Saenz, President and General Counsel, Mexican-American Legal Defense and Education Fund; Debo Adegbile, Associate Director of Litigation, NAACP; Bob Gordon, Chancellor Kent Professor of Law and Legal History, Yale Law School; Marvin Ammori, Free Press/ University of Nebraska-Lincoln College of Law; and Nan Aron, President, Alliance for Justice. Pam Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School, deftly shepherded the diverse group. Given that these practice-minded panelists had the last word, however, they were able not just to look forward to the future but back at the weekend’s proceedings.

It was particularly fruitful to have a group of practitioners and practically-minded theorists act as commentators on a weekend’s worth of constitutional action. Prof. Karlan began the panel by announcing, that unlike all the foregoing panels, the presenters would not actually make any presentations, but would instead immediately enter discussion, goaded on by Karlan’s incisive questions. Furthermore, following an intra-panel discussion, the floor would open for questions, but only from students in attendance. In 2020, those questioners will likely by leaders and panelists in their own right. Better start now, Karlan seemed suggest.

These two late alterations in the format exemplified the possibilities of progressive or liberal practice. One of the great challenges for liberal leaders, whether within or without the academy, is to lead in a manner that does not perpetuate the kinds of asymmetries and hierarchies so familiar to leader-led dynamics. Karlan’s announcements acknowledged this challenge. A panel dedicated to embodying a progressive vision in the living constitutional order needed to look and act progressive.

Video courtesy of Yale Law School

Having set the stage for a sharp conversation, Karlan continued in a critical vein. She first asked the panelists to talk about what they thought had been missing from the conference. Most of the answers had a sort of “meat-and-potatoes” vibe, one that would continue through the rest of the panel. Debo Adegbile and Tom Saenz drew attention to two areas of great inequality that they felt had been ignored at the peril of more general progressive goals: educational inequality and immigration policy respectively.  Adegbile argued that a lack of decent educational opportunities could create a voiceless generation. Making a distinction between immigrant rights (protecting those who are already here) and immigration policy, Tom Saenz insisted that we need to incorporate constitutional values into our immigration policy, which still effectively discriminates against non-Europeans and often, in the form of certain guest worker programs, separates families.

Bob Gordon suggested that while important, many of the individual issues broached at the conference would be better understood, and dealt with, if re-incorporated in a more general leftist critique of our political economic system. And Nan Aron called for a renewed commitment to ensuring that the Obama Administration appoint truly liberal judges – the most direct way, she suggested, to propagate liberal constitutional values.

Later in the panel, Pam Karlan suggested that there might be a “rust-belt/sun-belt” distinction between strategic thinking around issues like poverty, on the one hand, and sexier issues like net neutrality on the other. The former issues might require more of the older-style impact litigation and court-fueled politics. Marvin Ammori rejected this view, arguing that new modes of organizing and media outreach were effective and called-for across the board. While Adegbile and Saenz repeatedly recognized the need for new kinds of outreach and media management as accompaniments to older strategies like impact litigation, there were numerous suggestions throughout the two hours that some newer approaches to progressive legal thinking were a bit pie-in-the-sky. In many ways the last panel was a call not to a flashy new future but a re-commitment to older values and methods.

The “Getting There From Here” panel recapitulated the interminably uneasy relationship between theory and practice. Much of the conference, and the slant of many of the excellent essays in The Constitution in 2020, seemed to call for more practice-oriented theorizing. The stress on institutions (including administrative agencies), elections, and the extra-governmental production of social meaning that marks so much progressive constitutional theorizing is indicative of this turn to “practical” theory. In such theory, constitutional litigation and doctrinal disputes can take on secondary status.  The final, manifestly practical panel was not impressed by this turn. Although Ammori and Gordon struck now-familiar notes about the need to work outside the courts, the thrust of the panel was court-centered. Particularly emphatic were Tom Saenz admonitions that progressive lawyers had to play better defense against a right-wing judiciary. That defense, he seemed to suggest, would be mainly the job of practicing lawyers, doing traditional legal work. The end of the weekend left us in a strange position, where practice, from the point of view of theory, looked more and more extra-legal, while practitioners called for a commitment to pushing liberal legal theory in the courts.

What explains this peculiar situation? Earlier in the weekend, at the Constitutional Theory panel, there was much talk about the lingering anxiety among theorists that court-centered change is inherently countermajoritarian, and therefore un-“progressive.” It may be this anxiety that has led so much constitutional theory to turn to “practice” as defined as whatever happens outside the courts. But is “progressive” synonymous with “populist”? And is there anything inherently “practical” about “populist,” as opposed to “elitist” or “countermajoritarian,” strategies for constitutional reform?

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? 
 

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