Resnik

The Transformative Potential of Muslim America

Crosspost from Balkinization

Ideas do not move our constitutional norms, people do. This much is a lesson of recent scholarship by Bruce Ackerman, Reva Siegel, and Robert Post. New constitutional entitlements like the right to bear arms baptized in 2008, on this account, crest on waves of popular mobilization. Architectonic change to fundamental constitutional structures, familiar from Reconstruction and the New Deal, necessitates multiple political sallies by majorities engorged with populist fire.  

In predicting the shape of constitutionalism to come, therefore, it may be useful to search for emergent social movements with transformative potential. Complementing Robin West’s focus on legislated constitutionalism, resisting Richard Ford’s skepticism about abstract constitutionalism, we might ask: What social movement, so far unrealized, has a potential to pressure entrenched constitutional norms by 2020? 

For some years now, my (non-academic) work has focused on national security issues. Security-related changes to immigration, criminal law, and charitable regulation have, http://books.google.com/books?id=dpPTZ33Rmj4C&pg=PA167&lpg=PA167&dq=aziz...)" target="_blank">in my view, disproportionately hit Muslim Americans. But in New York and LA, traditionally quiescent communities have resisted discriminatory or burdensome policies. In line with what Judith Resnik terms “transnational localism,” subnational (here, civil society) actors challenged governmental monopolies on the definition and operationalizing of “security” (a more elusive concept than generally recognized).

Muslim America is a potent, if latent, social force for change. Cruise the streets of Jackson Heights, Queens, or Divan Avenue, Chicago. You’ll see an ethnically diverse, striving, and (in the Pew survey’s words) “highly assimilated” community. Spend some time in the tea lounges and masjids, you’ll hear ample discontent. In one mosque near my former Brooklyn home, congregants learned that three (!) informants routinely attended prayer services. Equally importantly, you’ll hear vociferous concern about the shutdown of Muslim charities under IEEPA, which has encumbered religious obligations of alms (zakat). One recent decision illustrates how IEEPA both curtails core expressions of religious identity and hinders legal representation to challenge that curtailment. 

Muslim Americans, in consequence, have much to gain from challenging the assumption that it is the federal government alone that speaks for us and monopolizes policy decisions when it comes to national security and related foreign policy. Just as the “sole organ” doctrine in foreign affairs and its cognates limits states and localities, as Professor Resnik explains, so too it (selectively) constrains certain migrant communities who still struggle for voice on the national stage.

Fashioned in then-Senator George Sutherland’s idiosyncratic tract The Internal and External Powers of the National Government, dragooned into law by Justice Sutherland in Curtiss-Wright, the “sole organ” doctrine licenses an executive branch monopoly on foreign affairs. Despite early able critique by David Levitan in Yale Law Journal, the doctrine abides, sustained by political utility as much as originalist fidelity or descriptive acuity.  

Professor Koh argues that the “sole organ” doctrine has taken a drubbing, citing recent Supreme Court rulings. But I am not so sure. For one thing, even if the Supreme Court is eager for Congress to reassert its prerogatives, as Justice Breyer’s Hamdan v. Rumsfeld concurrence illustrates, it is a different question whether Congress will pick up the slack. Despite intermittent evidence that Congress feels voters pressure about military over-exposure in Afghanistan, little suggests legislators sense pressure to rein in the presidency along any other security or foreign-policy metric. 

More than another pressure groups, Muslim Americans in my view are well-positioned to challenge the executive branch’s presumed monopoly on foreign affairs wisdom. Not only do they have much to gain in civil liberties, they have much unique to contribute. As I elaborate below, Muslim American mobilization aimed to establish a new constitutional polyphony in foreign affairs and national security is a win-win proposition.

Three brief examples show this dynamic: Consider first how U.S. policy seeks to influence events in volatile Pakistan. In these efforts, the interaction effects of the large diaspora Pakistani-American community with Pakistan’s culture and politics is largely ignored. But government should be leveraging the considerable influence diasporic communities have on home nations. 

Second, active political engagement with migrant communities here diminishes motivations for more radical forms of political action. Voice, that is, reinforces loyalty. In the Midwest’s Somali American community, some young men recently traveled to fight with the Shabaab, provoking breathless consternation in Congress and elsewhere. Few asked, however, why Somali Americans would feel so excluded from US policy formation that they took such extreme measures. An opportunity to build productive dialogue between Somalia Americans, increasing mitigating influences on that lawless state and building security here, was lost.
 
Third, Muslim Americans could be a vital voice for the rule of law overseas. As judicial regulation and procedural scrutiny of detention operations in Guantánamo and other US sites grows, the US has displaced more and more of its detention operations to other countries. Recently minted regulations endorse this continued outsourcing to Pakistan and other allies. The price of this displacement, however, is further corrosion of the rule of law in these countries.  Displacement thus exacerbates conditions that originally fostered transnational terrorist groups such as al Jihad in Egypt. To date, few have made the connection between the Supreme Court’s insistence on a patina of legitimacy on domestic detention and the growing erosion of legality overseas. Muslim Americans, sensitive to conditions in those countries, can play a crucial warning and advocacy role.  

Not only Muslim Americans but all Americans, in short, have much to gain from challenging the “sole organ” doctrine and contending for a more contentious process of policy formation. I do not know if Muslim Americans will take up this challenge: But fledgling organizations such as Muslim Advocates are promising sparks of change. Their mobilization and increased voice, however strong it proves, can only improve the Constitution in 2020.
______________

Aziz Huq is Assistant Professor of Law at The University of Chicago Law School. He will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Jenny Martinez (Stanford Law School, "Constitutional Rights as Human Rights?"), and Jon Michaels (UCLA School of Law, "Executive Authority in a post-Westphalian World").
 

Constitutional Rights as Human Rights?

Crosspost from Balkinization

A decade ago, lawyers in the United States who worked on cases involving mistreatment of prisoners might have talked about those cases as involving “police brutality.” The lawyers would have described them as falling under the rubric of constitutional litigation involving “civil rights” and “civil liberties.” Today, those same lawyers might describe the same mistreatment of prisoners as “torture” and a violation of “human rights.”

Does the difference in terminology matter, or is this merely a reflection of a “trendy” but superficial globalization? The shift towards the use and consideration of international human rights law by domestic advocacy groups in the United States is a fairly recent phenomenon (though one with historical precursors). As the ACLU’s website explains:

“In 2004, the ACLU created a Human Rights Program (HRP) specifically dedicated to holding the U.S. government accountable to universal human rights principles in addition to rights guaranteed by the U.S. Constitution. HRP is part of a reemerging movement of U.S. based organizations that uses the international human rights framework in domestic rights advocacy.”

Are American constitutional lawyers talking about international human rights the legal equivalent of a pretentious francophilic suburbanite air kissing her friends and declaring the latest sweater at Target to be “très chic”? Is reference to international human rights law a useful strategy for progressive constitutional advocates, or does it simply invite criticism and attack on the grounds that dangerous and undemocratic “foreign” influences are being illegitimately injected into our legal system? Am I calling in the black helicopters here?

Accuse me of having drunk too much of the international human rights Kool-Aid if you wish, but I believe that thoughtful engagement with the broader international human rights movement by progressive constitutional advocates is good for America and good for the world. Why?

The language of international human rights has become a dominant global discourse. There are well-known criticisms of this discourse, to be sure, but the language of human rights has exerted a powerful influence on the way that people around the globe think and talk about issues of fundamental importance to the way people live their lives – from their ability to speak freely, participate in government, practice religion, shape their families and other social connections, engage with government and civil society on terms of equality, achieve the minimum conditions of material prosperity necessary for a life of dignity – water, food, shelter, medical care, education. We can’t participate in this global conversation if we don’t speak the same language as progressive advocates in other countries.

International human rights law addresses many of the same issues and concerns as U.S. constitutional law, though there are of course quite important differences between the two bodies of law. Most obviously, international law embraces a broader vision of rights including not only civil and political rights, but also economic and social rights.  In this respect, the global human rights regime echoes the framework put forth by Franklin Roosevelt in his “Four Freedoms Speech” in 1941 – freedom from want, freedom from fear, freedom of speech and expression, freedom of religion.  The drafting of important international human rights instruments in the aftermath of World War II was heavily influenced by these ideas.  Roosevelt’s concern for security – freedom from fear – as a basic human need also resonates today in attempts to balance individual liberty with the need for protection against violence, either by states or non-state actors. In the international legal order, however, freedom from fear finds its institutional home in the collective security framework of the U.N. Charter rather than in human rights law; and the tension between security and rights is no less evident in international law than national legal systems. Understanding security as a human rights issue, however, is vital to confronting many of the challenges America will face in the coming decades.

International human rights law differs from U.S. constitutional law in other important ways as well. It emphasizes personhood over citizenship as a foundation for rights (though of course, many parts of the Constitution speak of persons and people, not citizens). Its focus on human dignity finds echoes in many post World War II constitutions, but not so explicitly in the text of our own Constitution. It operates within a different institutional framework, in which litigation is often less important than documenting and publicizing abuses; raising awareness of issues; generating political pressure; lobbying and diplomacy.

Far from making international human rights law irrelevant to a progressive constitutional vision, these differences in perspective and strategy can be quite useful in rethinking a way forward in the coming decades. As Rachel Moran and David Cole, among others, discuss in their contributions to the Constitution in 2020, even progressive theories of constitutional law that place great weight on citizenship run the risk of undermining the basic dignity afforded to non-citizens.  Many of the essays in the volume address issues of economic and social inequality and inadequacy. And many address the idea of the Constitution – and constitutional rights – outside the courts.  International human rights law speaks to all of these concerns.

The United States has long been a leader in international human rights. Core international instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are modeled on rights established and developed in U.S. constitutional law. Our nation has been a powerful advocate for human rights in its diplomacy and in important international fora.

Today, as many have pointed out, the United States role as a global human rights leader is imperiled. Why? Recent policies of the United States government, especially detention and interrogation in connection with the “war on terror”, have involved significant and very high-profile human rights violations. Members of the Bush Administration openly defended practices that constitute torture. In other areas of individual rights, the U.S. also does not compare favorably with other developed democracies. Death penalty? Gays in the military? Universal health care? Decent primary education? To be sure, in some areas such as free speech, the U.S. has adopted standards that are more protective of individual rights than other nations. But the United States faces serious challenges in our claims of preeminent leadership in the human rights field.  

When our Supreme Court disses foreign and international courts, the judges on those courts become less likely to care what the U.S. Supreme Court thinks. As several recent articles have pointed out, constitutional courts around the world are increasingly likely to cite the European Court of Human Rights or the Inter-American Court of Human Rights rather than the U.S. Supreme Court. As Vicki Jackson points out in her essay, when we act as if we have nothing to learn from the rest of the world, we run the risk of being left out of, and thereby unable to contribute to, the development of, a global body of law that is likely to have an important impact on U.S. interests in decades to come.

More importantly, when U.S. behavior evinces a double-standard – acting as if the rules of international human rights law apply to other countries but not to us – we increase the likelihood that other countries will claim that they, too, are not bound by these allegedly universal principles.

Like various contributors to the Constitution in 2020 volume -- including Harold Koh, David Cole, Vicki Jackson, Judith Resnik and others -- I believe the United States has a key role to play in shaping the world outside our borders. 

We will be a stronger, wealthier, and safer country in 2020 if other countries respect human rights. 

Moreover, U.S. constitutional law may well benefit from consideration of the way that similar issues are conceptualized and resolved in international human rights law. Even if we do not always cite foreign or international sources in our briefs, it is useful for progressive advocates to know something about how our counterparts in other countries conceptualize an issue.  Maybe even talk with those counterparts. Just as advocates for the abolition of slavery in the nineteenth century drew strength from transnational networks of religious and civil society groups, progressive advocates in the U.S. today may strengthen their efforts by building bridges to those advocating on similar issues in other nations.  (And a note to anyone who came upon this blog posting after googling “black helicopters”:  I’m not talking about giving up sovereignty, or being bound by the views of foreigners – I’m talking about respectfully considering the wise and considered views of others before making our own minds up.)

The United States does not and cannot exist in isolation from the rest of the world, and any vision for American constitutional law in the coming decades must recognize this fact – not incidentally, not as an afterthought, but as a fundamental part of understanding the nature of our society, our economy, and our government. 
________________

Jenny S. Martinez is Professor of Law and Justin M. Roach, Jr. Faculty Scholar at Stanford Law School. She will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Aziz Huq (University of Chicago Law School, "The Transformative Potential of Muslim America"), and Jon Michaels (University of California Law School-Los Angeles, "Executive Authority in a post-Westphalian World").

Preserving Democracy’s Laboratories

Crosspost from Balkinization

As Judith Resnik’s contribution to the “Constitution in 2020” volume makes clear, American federalism has neither a progressive nor a conservative political valence. In Wisconsin’s beautiful statehouse in Madison, one can almost sense the ghost of Robert LaFollette and other early Progressives, who initiated reforms in the states before taking them national. Nor should we forget Henry Adams’s observation that, prior to the Civil War, “there was no necessary connection” between “the slave power and states’ rights. . . . Slavery in fact required centralization in order to maintain and protect itself.” During the Bush years, progressives trained since the 1960’s to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California’s right to go its own way on environmental policy and Massachusetts’ prerogatives to allow gay marriage at home and protest human rights violations abroad.  After 2008, progressives will be tempted to shift back to reliance on national power.  But what has once turned can turn again, and 2016 might well bring back the “bad old days” in Washington, D.C.

If both conservatives and progressives ought to value state autonomy, how can we preserve it in an age of runaway integration? Many have focused on either reviving constitutional protections for state autonomy—e.g., by interpreting the Commerce Clause in a more limited fashion—or construing federal statutes to minimize preemption of state law. Both are worthwhile endeavors. But the ultimate safeguards of federalism are political. Judicial protections are unlikely to avail much if the States lose the wellsprings of popular support that give weight to their representation in the national political process.

These days, those wellsprings often seem at risk of drying up. It is difficult to imagine many modern Americans choosing, as Robert E. Lee did in 1860, allegiance to their state over allegiance to their country. Today’s citizens are considerably more likely than their Nineteenth Century counterparts to live in multiple states over the course of their lives, and our media and political culture focus relentlessly on national politics. Local communities, moreover, seem generic and unlikely to inspire strong personal attachments. When David Souter left the Supreme Court to return to his beloved New Hampshire, he was considered highly eccentric for his steadfast sense of belonging to a particular place. And why not, when there is a Starbuck’s on ever corner regardless of whether one is in Greenville, South Carolina or Concord, New Hampshire?

States function as effective laboratories when innovative individuals are sufficiently committed to state political communities to press their ideas at that level. And the resulting innovations will be best defended against national pressures for uniformity when voters and politicians feel they have a stake in the state’s autonomy. A decline in state identity and distinctiveness thus threatens states’ ability to be laboratories and havens for minority viewpoints. The question is whether anything can be done to restore a sense of identity and public commitment in the states.

We may learn something here from an inverse debate in contemporary Europe. National identities in Europe have frequently been a function of ethnic and religious ties. As the European Union develops institutions of governance at the supranational level, however, Europeans have wondered whether democratic accountability at that level requires a pan-European politics based on a shared pan-European identity. Traditional national identities based on shared ethnic and religious ties, however, cannot be replicated at the European level. A prominent proposal to solve this problem involves “constitutional patriotism”—that is, a common identity based on shared liberal ideals of human rights and equal dignity. European identity would be based not on an ethnic volk but on a shared set of political commitments.

This shift in the nature of political identity resonates in America, where national identity has long rested on a form of constitutional patriotism. A similar solution may revive political identities at the state level that have waned as states become both more ethnically heterogeneous internally and more similar to one another in their ethnic and  religious makeup. Massachusetts might build a distinctive political identity based on tolerance of alternative lifestyles and a more generous set of social rights, and California might distinguish itself by its commitment to the environment. 

Not all state-based brands of constitutional patriotism would be progressive. Texas might gravitate toward rugged individualism and a commitment toward traditional notions of punitive justice.  But states need not be uniformly—or even predominantly—progressive in order to fulfill their functions as laboratories of progressive change. The critical thing is that individual states have the freedom to make their own policy choices and the ability to mobilize the loyalties of their citizens around those choices. If the progressive constitutional visions articulated in the 2020 volume are to be realized, many of those reforms will have to start in the states.
______________
Ernest A. Young is Alston & Bird Professor of Law at Duke Law School. He will be appearing on Saturday's "Localism and Democracy" panel with Rich Schragger (University of Virginia School of Law, "Federalism All-the-Way-Down"), Ilya Somin (George Mason University School of Law, "The Peril and Promise of Federalism in the 21st Century"), and Ethan Leib (University of California Hastings College of the Law, "Constitutional Conventions: Getting 20/20 Vision About Them by 2020").

     
 

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality?

Over the next few days, Daniel Winik and Jeremy Kessler will use this space to delve into one of the most pressing debates within contemporary constitutionalism: whether progressive advocates for marriage equality should focus their energies on legislatures or the courts. Consider it a lawyerly debate, with each writer arguing wholeheartedly for the merits of his client — Dan for an “incremental,” legislatively-focused strategy, Jeremy for a court-centered approach — rather than either trying to give a completely “rounded” view on his own. Like many questions, the answer probably rests somewhere in the balance.

Point: Daniel Winik

I’ll open with an argument for incrementalism, an argument shaped in large part by several pieces from The Constitution in 2020, especially Judith Resnik’s discussion of progressive federalism (Chapter 24, PDF) and Robin West’s analysis of “legisprudence” (Chapter 8, PDF). As the essays by Resnik and West suggest, any effective progressive agenda will have to move beyond single-minded reliance on the federal courts as guarantors of rights. This is particularly true, as I see it, for marriage equality: progressives should continue to favor a state-by-state approach to achieving marriage equality, and where possible, they should make their case in the legislatures rather than the courts. Both of these elements — federalism and legislation — are central to an incremental approach. (For similar thinking, see Aaron Zelinsky’s insightful posts here and here.)

Without a doubt, incrementalism makes concessions to the federal bench’s conservative tilt and to the ongoing debate — even among progressives — as to whether the Federal Constitution encompasses marriage equality. That said, my argument is not mainly a tactical one. Even if the Supreme Court were to uphold an Equal Protection challenge, that outcome might not be best for progressives in the long run. Let me suggest three reasons why.

First, constitutional progress is most effective and most lasting when it arises from popular consensus. Jack Balkin and Sandy Levinson have argued that the Supreme Court’s constitutional innovations tend to track the mainstream of political thought, insofar as constitutional change occurs through “partisan entrenchment.” On the rare occasions when the Court has deviated from mainstream trends — Roe v. Wade, 410 U.S. 113 (1973), being the prime example — its pronouncements have been slower to gain acceptance. Justice Ginsburg, among the pioneers of litigation for women’s rights, has herself suggested that the Roe Court “bit off more than it could chew,” upsetting a legislative “state of flux.” Had Roe come five or ten years later, after legislative progress had been made, the controversy surrounding it would likely not have endured for decades.

If present trends hold, advocates of marriage equality won’t have to wait long for their popular consensus. Statistical guru Nate Silver’s models suggest that “by 2012, almost half of the 50 states [will have] voted against a marriage ban,” and “[b]y 2016, only a handful of states in the Deep South would vote to ban gay marriage.” The recent wave of legislative progress toward marriage equality hasn’t sparked anything close to the backlash that followed Goodridge v. Dept. of Public Health, 798 N.E.2d 941, the 2003 decision that legalized same-sex marriage in Massachusetts. In fact, the most recent adoptions of marriage equality statutes have seemed almost routine.

Hence a second reason to favor a state-by-state approach: it provides models to counter public fear-mongering. In other words, federalism isn’t just useful to progressives as a vehicle for legal experimentation; it’s also a sound vehicle for social experimentation. To the extent that Massachusetts, Connecticut, Iowa, New Hampshire, Maine, and Vermont survive their transitions to marriage equality with their social fabric intact (and we’re not seeing any reason to ring the alarm), it will become increasingly difficult for trumped-up fears of moral collapse to deter further progress.

A third reason to favor an incremental approach is that the political process of legislating change, state by state, is itself a catalyst for the evolution of public attitudes toward marriage equality. In West’s model of the legislated constitution, the “conscientious, idealized legislator” looks to the Equal Protection Clause as a dictate “to do her moral, political, and constitutional duty by the citizenry.” That process of defining equality, and understanding its mandate, is central to a robust democracy. As Resnik argues, “Jurisdictions do not make rights, but people do . . . . [and] only when many actors, at national and local levels, in and outside formal legal structures, fully embrace propositions like racial and gender equality do such understandings become constitutive . . . .” Incrementalism, then, represents a democratic embrace of the constitutional mandate for equality—not a retreat from it.
 

A New Use for Federalism? The Benefits and Constitutionality of Randomness in Federal Policymaking

Determining 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.

Consider, in contrast, a federal law designed to apply only to randomly selected states (or congressional districts, etc.). Controlled randomized experiments are often described as a “gold standard” in social science research. Adapted from clinical trials, they attempt to isolate the effects of some intervention — say, a new sex ed program — from the environment’s chaotic soup of natural influences and trends. That’s done by comparing a randomly constituted “experimental” group’s experience under the intervention to the natural, everyday changes that a second randomly constituted group experiences when left alone (this second group is the “control” group). These comparisons can help us measure the causal link between a policy and an outcome. And where do the groups come from? I suggest we randomly assign geographical regions, like states, into one or the other.

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?


It’s rarely the case that government policies are purposefully applied to some people and not others for the sake of comparison. Even more rarely are policies randomly applied to some and not others, but there are a few impressive examples. In the fall of 1994, the Department of Housing and Urban Development began an experimental housing mobility program in five urban centers based explicitly on random assignment. Families were randomly selected to receive assistance in moving to wealthier neighborhoods. As a result of the randomization, and to the surprise of many, this “Move to Opportunity” program was convincingly deemed to be much less successful than had been previously argued. The National Job Corps Study in 1993 convinced a skeptical Department of Labor that the Job Corps, a training program for disadvantaged 16- to 24-year-olds, is effective for increasing earnings, increasing educational attainment, and decreasing criminality. The random assignment at the core of the study essentially saved the Job Corps from elimination. More recently, the “No Child Left Behind” Act called for the use of “scientifically based research” as the basis for many education programs, indicating at least some appetite for randomization in a recent Congress, if only implicitly.

Inevitably in a geographically-randomized scheme like this, there are concerns about state sovereignty to consider. Of course, the federal government regularly discriminates among the states in funding and regulation, but it rarely does so randomly. In the criminal sentencing arena, there could be Eighth Amendment arguments about “unusual punishments” if people committing identical crimes are subjected to different sentencing guidelines because of their state of residence. And indeed, the U.S. Supreme Court’s primary basis for selecting its cases is to smooth out differential interpretations of federal law among Circuits.

There are also potential Equal Protection complaints about such a randomization scheme. Because geography does not constitute a subject class and as long as no fundamental rights are implicated, such “randomization of application” laws would probably only have to pass the “rational basis” bar. But does the randomization built into the laws make them by definition "arbitrary" or "capricious," undermining their rationality? Or alternatively, when would the laws be rationally related to a legitimate government purpose? Is determining the effectiveness of a certain policy or program, like a new sex ed curriculum, “legitimate”? Such an inquiry has the potential to put courts in a role analogous to research funding bodies, answering the question: Does the potential result of this trial intervention justify its cost in arbitrariness and unfairness (for courts) or in dollars (for funders)?

Setting aside constitutional and ethical objections for the moment, the value of such a nationwide randomized study is easy to see. Political candidates often campaign on the promise of eliminating programs that do not work and expanding those that do. If they truly seek to know which is which, more randomization in federal policymaking is a powerful solution.

What objections to this randomization scheme, constitutional or otherwise, can you see?  Drop a comment below. Or, if you email me at Adam.C2020@gmail.com, I might highlight them in a future post.
 

Subscribe to RSS - Resnik