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? 

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?

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.

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.

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?