Amendment 1

Panel Recap: Individual Rights

Courtney Hostetler
The 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.
 
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Posted on October 12, 2009 @ 4:54 pm

The First Amendment in 2020: An Institutional Perspective

Paul Horwitz

Crosspost from Balkinization

Justice Oliver Wendell Holmes once famously wrote, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” The difficulty of this advice should not be underestimated – especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have “a deeply felt desire . . . to achieve noninstrumental certainty in the law.” And Fred Schauer has written of the lawyer’s tendency to think in terms of “juridical categories” rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers’ greatest gift and their greatest handicap.

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Posted on September 28, 2009 @ 11:17 am

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.