Amendment 14, Section 1, Clause 2: Privileges and Immunities Clause

Panel Recap -- America and the World

The Constitution 2020 Conference opened powerfully with a panel that engaged questions essential to defining a vision of progressive constitutionalism: Who ‘counts’ as American?  And what kind of law ‘counts’ as American?

The panelists, along with their moderator, Bruce Ackerman, tested the boundaries between citizen and non-citizen, and between U.S. and international law, in the context of national security, foreign policy, immigration enforcement, and discrimination against minorities since September 11, 2001.

The panel opened with Aziz Huq (University of Chicago Law School) and Muneer Ahmad (Yale Law School), who tackled issues on citizenship, personhood, and advocacy. Their comments framed an approach to the question of who ‘counts’ as American. Then Jon Michaels (University of California Law School – Los Angeles) and Oona Hathaway (Yale Law School) reflected on the need to reintroduce democracy to determine what kind of law ‘counts’ as American law. Their proposals paid special attention to checking executive power in national security and foreign policy matters.

Video Courtesy of Yale Law School

Who ‘counts’ as American?

Since September 11, 2001, Muslim Americans have had a common encounter with discrimination that has often placed them outside the circle of who ‘counts’ as American. While discrimination can and has alienated Muslims, Aziz Huq proposed that this shared experience also has the power to form the otherwise diverse and fragmented community into a single interest group that can reclaim core constitutional rights, such as free speech, freedom of religion, and privacy.

As credible advocates for constitutional change, Muslim Americans can powerfully advocate to base counter-terrorism operations on trust and cooperation with the Muslim community, rather than on surveillance and suspicion. Huq urged that we open foreign policy decision-making to a diversity of voices, including Muslim Americans, because “without voice, loyalty often erodes.”

Muneer Ahmad then identified the citizen/non-citizen divide as a major barrier to expanding who ‘counts’ as American to communities with immigrant populations. Traditionally, the rights granted to citizens and persons in the Constitution are considered independent sources of rights, but Ahmad argued that the two are in fact tethered together so that “citizenship circumscribes personhood.”

Citizenship exceeds personhood across our legal system. In order to secure protections of personhood for their clients in court, for example, immigrant rights advocates must argue that their clients are citizen-like – hard-working individuals who go to church, don’t have a record, and have the support of family and friends. In other words, lawyers must argue that their clients are super-citizens who represent a form of social rather than constitutional citizenship. However, the rights of personhood will never meet the full level of rights that citizenship provides. Immigrant rights advocates therefore necessarily reinforce the citizen/non-citizen divide and the paradox continues.

How can progressives expand who ‘counts’ as American under our Constitution given the dominance of the citizen/non-citizen divide? We can either expand the ambit of citizenship, Ahmad suggested, or re-imagine citizenship entirely to better match a globalized world where people have multiple loyalties and identities.

What law ‘counts’ as American?

Turning to the sweeping powers of the executive since September 11, 2001, Jon Michaels and Oona Hathaway reflected on what law ought to ‘count’ as American. Jon Michaels noted that the Bush administration bypassed constitutional requirements; it gathered information from corporations about their customers, used foreign interrogators, and engaged in domestic wiretapping, for example.

The problem of unchecked executive power is not specific to the fight against Al Qaeda, however, but rather a result of broader globalization processes where "the law lags behind," Michaels argued. Social, technological, and economic trends in globalization blurred traditional legal boundaries, allowing the Bush administration to aggrandize power and operate military and national security apparatus free of traditional regulation. Michaels concluded that Congress and the courts ought to check executive power in the future through structural change rather than ad hoc regulation.

Oona Hathaway brought the discussion into an international framework, examining America's relationship to other nations through its dual powers of making law and making war.  Hathaway noted that most of U.S. foreign policy is made by the President acting alone, authorized by Congressional authority delegated some forty years earlier. Similarly, under our Constitution, Congress gives the President limited authority to make war, but those limitations have been ignored when expired, reducing Congress' role to paying war bills.

Hathaway argued that progressives should bring congressional oversight and democratic legitimacy back into international law and foreign engagement. Specifically, Hathaway and Bruce Ackerman are working on a proposal that would create a new default rule that makes Congressional authorization for war expire in two years time.

Take a look at the video to learn more about their proposal -- and dig deeper into all of these rich reflections on a progressive vision for constitutional change.

Social Rights—Recap: Economic Rights in Disguise

Risa Goluboff began the Social Rights panel fittingly by posing the "what" question: what are social rights? Are they civil rights, political rights, or civil liberties? As it turns out, what most of the authors in The Constitution in 2020 and what the panelists at the conference were referring to can more accurately be categorized as "economic rights."


 Video courtesy of Yale Law School.


Goluboff then swiftly introduced a question that would linger throughout the panel: why call these rights, social rights, and not economic rights? In fact, Goluboff suggested that calling these rights, social rights, may doom them from the outset. Historically, social rights have not fared well in America. As part of the nineteenth-century tripartite conception of citizenship, the judiciary refused to enforce social rights, providing them with the weakest protections. In the human rights arena, the Executive, while signing other major rights-based covenants, has failed to ratify the International Covenant on Economic, Social and Cultural Rights.

The second speaker, Jacob Hacker, shifted gears and focused on the "why" question: why should America care about economic rights? Initially, he marshaled compelling statistics to illustrate the surreal stratification in recent years, suggesting that the justification was increasing economic inequality itself. However, it later became clear that the problem was not economic inequality alone. Rather, Hacker's real concern was that economic inequality had resulted in unequal--that is, undemocratic--political representation. Politicians increasingly cater to the concerns of the wealthy, while the voices of lower-income classes have diminished to a "whisper." For Hacker, it was a foregone conclusion that reform must come from the legislature.

The third speaker, Ben Sachs, answered Hacker's invitation to think about the link between economic inequality and political inequality by turning to the "how" question: how should America begin remedying this growing income disparity? Sachs focused on empowering the labor unions as a crucial mechanism for equalizing both economic and political power. Labor unions have the capacity to redistribute a firm's income more equitably to workers, as well as to mobilize and exert sufficient political pressure on the legislature. For Sachs, the best bet for reform lay not in federal legislation, but state and county legislation where the workers' political power exerts its largest influence. (However, that tact would first require reforming federal labor law to free up state and county labor legislation.)

Even if social rights are economic rights in disguise, the panelists seemed to skip from the "why" (economic inequality) to the "how" (the judiciary or the legislature) without addressing the real "what" question--that is, what are economic rights?

Then again, the panelists may not have skipped over anything. For many, the "what" was economic inequality itself. And the "why" consisted of the numerous harms that radiate from economic inequality, whether that was political and racial inequality, or unequal access to health care, housing, and education.

Thus, many panelists and attendees conflated the substance of, and the justification for, economic rights. It seems a worthwhile question to ask which is which.

Are we concerned about economic inequality because it departs from fundamental founding values such as equality irrespective of lineage, and liberty irrespective of class and caste? (Is equality a good in itself?) Or are we concerned about economic inequality because of the myriad secondary harms it reproduces?

While the former lends itself to formulating a principle--a general right to economic equality, the latter lends itself to enumerating a specific list of rights. In terms of methodology, the former suggests we should tackle the problem at its systemic core and address the pariah of political questions: redistribution of wealth. Whereas the latter suggests we should tackle economic inequality from the outside-in via piecemeal reforms addressing each individual secondary harm.

We could be concerned with both questions, and then the key issue may be which approach is more strategic. Indeed, the panelists likely pondered these questions and concluded that addressing the secondary harms would be more realistically achievable in scope and more palatable in avoiding the dreaded associations with excessive regulation, socialism, or worst of all, communism. As suggested during the panel, this calculation probably also resulted in using the label, social rights, as opposed to economic rights.

However, addressing the secondary harms, or even using the term, social rights, leaves open the risk that economic inequality gets lots in the shuffle--that we, for example, address problems of political inequality or access to health care, without ever truly confronting the widening economic gap. There is the danger that we merely soften the blow of economic disadvantage, but sanction it nonetheless.

Finally, even if it is wisest to proceed obliquely, it is debatable which secondary harm is the most crucial to tackle. In William Forbath's piece in The Constitution in 2020, he reminds us that the Fourteenth Amendment was very much written with concern for economic equality in mind, except then it was the "rights of contract and property that were thought to ensure white men the opportunity to pursue a calling and earn a decent livelihood." Personally, when I think of what ensures equal opportunity to pursue a "decent livelihood" today, I immediately think of education, not political representation as Hacker and Sachs did. Education--whether academic, professional, or vocational--strikes me as the main currency (and predictor) for social and economic mobility.

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