Popular Constitutionalism

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?

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