social movements

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," 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 Conventions: Getting 20/20 Vision About Them by 2020

Crosspost from Balkinization

The Constitution in 2020 is at once an effort to articulate a theory of progressive constitutionalism that can counter the ascendency of conservative constitutionalism’s theory of originalism – and is an effort to imagine what such a progressive constitutionalism can realistically hope to accomplish in the medium term. Notably, a majority of the essays in the book appear to give up on judge-centered approaches to constitutional change and seek to bring about progressive ends through legislation and social movements. Whether this is because the authors of the essays just don’t have their five votes on the Supreme Court as of yet (the cynical perspective of one recent review) – or whether it is because they have really grown convinced of some of the disadvantages of judge-led constitutional change – the volume makes clear that today’s mainstream liberals in the legal academy are no simplistic defenders of judicial review, judicial supremacy, and judicial liberal activism. The romance of FDR might remain, but the romance of the Warren Court has faded for most. This shift has been underway for some time, to be sure, but today’s law students are more likely to see their liberal law professors questioning Roe in earnest than previous generations. Brown may still be untouchable; but this book helps the next generation see clearly that if they want to own their Constitution and have it represent the best of their own constitutions, there are democratic methods outside the judiciary to make that happen.

Yet with all the enthusiasm progressives now display for methods of constitutional change outside the courts – and some scholars in the volume can’t help themselves from bubbling over with hope in light of Obama’s election – no one in the book spends any time getting serious about the structural deficits of our virtually-impossible-to-amend document that render democratic constitutionalism particularly hard to achieve. No one takes seriously the idea that maybe progressives ought to be devoting efforts to unlocking some of the structural barriers to facilitating democracy, both locally and nationally, through formal constitutional change. Larry Kramer’s contribution to the book hints in this direction, perhaps, if only obliquely. And surely if Sandy Levinson had been invited to write a chapter, more of this perspective would have been included.

One might have expected more attention to recent battles in state constitutionalism in the volume especially, if only because progressives have ultimately prevailed in state courts with arguments the federal courts have thus far rejected.  But the ongoing liberal appropriation of “federalism” – a theme seemingly central to democratic constitutionalism – has virtually ignored the possibility of taking seriously some recent calls for constitutional conventions at the state level. One might learn a great deal about how to campaign for and run a successful constitutional convention to fix some of our structural barriers to a more robust democracy through super-democratic means that are neither judicial nor “merely” legislative.

A federal constitutional convention by 2020 is unlikely, of course.  But several states are considering tinkering with their basic charters: New York and California are very populous states with very active conversations on the subject. Progressives should be interested in these efforts for their own sakes because local politics must be part of any serious progressive agenda. They should be interested instrumentally and pragmatically too because statewide constitutional conventions can teach us a lot about how to run an effective federal convention down the road. A fabulous resource to get a historical and legal perspective on state constitutional conventions more generally is available here.

In light of my service on policy and legal teams helping “Repair California” think through the details of its own call for a constitutional convention and my own recent proposal with Chris Elmendorf of UC-Davis for a way to fix California’s pathological budget process entrenched in its state constitution, my aim at the upcoming conference celebrating The Constitution in 2020 in October will be to shine a light on the details of modern constitutional convention design and the challenges in store for progressives willing to entertain the idea that structural change and new basic charters may be necessary to give democratic constitutionalism a fighting chance.  We won’t have a federal convention by 2020.  But we can by then hope to watch and influence some conventions as they unfold at the state-level, learn to overcome “conventionphobia,” and, ultimately, refine what a convention should look like when we realize a new federal constitution is finally necessary to reclaim ownership over our political community from the dead hands of the past.


Ethan J. Leib is Associate Professor of Law at University of California Hastings College of the Law. 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 Promise and Peril of Federalism in the 21st Century"), and Ernie Young (Duke Law School, "Preserving Democracy's Laboratories").

2020 News

The newest addition to the site is our "2020 News" page, where you can catch news items related to The Constitution in 2020. Up now are streaming videos from this summer's National Press Club event (featuring Walter Dellinger and Mark Tushnet) and ACS Convention (featuring William Forbath, Rachel Moran, Larry Kramer, and Vicki Jackson), as well as a podcast of Jack Balkin's interview on KERA (Dallas).

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