Constitution in 2020 Liveblog Panel 6- Localism and Democracy

Panel Six:
4:30 – 6:30   Localism and Democracy
Moderator:  Judith Resnik, Yale Law School
Commentator:  Heather Gerken, Yale Law School
Panelists:  Ethan Leib, University of California Hastings School of Law; Rich Schragger, University of Virginia School of Law; Ilya Somin, George Mason University School of Law; and Ernie Young, Duke Law School

*I’ll begin by laying out my clear bias to Ilya Somin, one of my favorite professors at Mason, and a friend. Ilya is a loyal fan of the greatest baseball team, the New York Yankees, and heaps praise on the Steinbrenner’s deft rational rent seeking to construct the nicest baseball stadium in the country with the least amount of private funding.

Ilya Somin

Federalism and voting with your feet. Voting with you feet valuable in American federalism. If you are disastisfed with your local jurisdiction, you can move to another area.

Benefits of voting with feet over ballot-box: (1) Incentives to obtain information. When you vote, incentive to be rational ignorant. (2) Voting with your feet valubale to groups that are politically weak and lack influence on society. Example- migration of African Americans from hostile South to North.

Why voting with feet more important now:

1. costs of transporation has gone down- economic activities avialable in more places

2. more information than ever to learn about different living conditions in different areas

3. federalism and decentralization- no loyalty to localities

Dangers that threaten federal system, voting with feet only effective where variation of policy between states. With one size fits all federal policy, less likely voting with your feet will be effective. Growing state dependence on federal grants frustrates this. Previously state govs had to raise money themselves through tax payers- incentives to innovate and create economic growth. Today, dependence of states on federal funds (20% of states reliance on federal funds  in 2007 to 25% today). In many countries, if states get $ from central gov, diminishes incentives to improve.

Today almost every aspect of life is controlled by the federal government.

Public opinion is not reliable ally becuase they no longer feel attachment ot concept of state autonomy.

Judiciary can only do limited amount. Although general public does not feel attachment to state government, Texans excluded (and what about Red Sox nation?). Political approach to constraining this better. Less politics of hope, more politics of fear. In long run, hope that can be attached to preserving ability to vote with feet.

Ilya Somin

Ilya Somin

Ernie Young

Not many conservatives have managed to sneak into this conference. Amen.

Disagrees with Somin. Sticky states- states with high level of loyalty. Loyalty over exit. Ilya wants slippery states.

Too much loyalty defeats Ilya’s vision.

Do we have enough stickiness? Do we have enough identity? Is there a meaningful attachment to the federal structure that we have?

What is relationship between one level of identity and another. If you get too excited about state, commit treason. Not necessarily, Young said.

Rich Schraeger

Focus on federalism, and the cities. Cities have adopted many progressive ends; same sex marriage, minimum wage, environmental regulations, housing development, etc. Cities engines of economic growth.

You can’t have local decentralized governments regulating giant transnational entities. Self government is not possible when government or business becomes too big.

Mid-twentieth century association of decentralization with states right only part of the story. Read, decentralization doesn’t have to be conservative.

Ethan Leib

Tells Sandy [Levinson], we won’t have a constitution in 10 years, no matter how many blog posts you write. LOL.

Process calling for constitutional convention in California.

Do people always retain the right to call a constitutional convention? Common law constitutional convention- extralegal.

Lieb spoke of the low level of discourse in San Franciso. Some issues he deals wiht:  shutting down alcatraz shut down, turning it into an island of peace and tranquility. naming a garbage dump after George Bush (applause). a nudist running as a candidate for city council. level of discourse is not too high in san francisco. Lieb is a Bushie when teaching constitutional law. Does not like staring at 85 people thinking the same thing. He should come to Mason!

Heather Gerken

Federalism has long been code word for letting racists be racists. Proponents of racial justice should take fresh look at federalism, and federalists should take new look at racial justice. Federalists often have to explain federalism apologetically.

Future federalism beyond integration/segregation, majority/minority districts, etc.

Federalism and first amendment promote the same values.

Judith Resnik

Affiliation, and how we identify ourselves, is essential to concept of federalism.


Is voting with your feet viable?

Political change can happen in the sense that big major shifts in policy. Important thing is not that people will move easily, but state government officials know that if they screw up badly, they will trigger an out-migration, and gives them incentives to do better. Easier to vote with your feet even if you have to do it more often based on modern circumstances.


5 biggest problems facing society solved by nationalism. Everything else should be solved by federalism.

  1. Econonic Justice- need to equalize economic inequality
  2. Militariasm- important problem
  3. control of mobile capital-
  4. global warming- big cities can’t take a stand, need to control national government
  5. federal abortion right

Ilya ackowledges that he is not in favor of localities, like California addressing global warming, but is not ready to acknoweldge that national governments and international governments can address ManBearPig.

Ilya Somin

Ilya Somin, Ernie Young, Judith Resnik, Heather Gerken , Rich Schragger, Ethan Leib

Posted in ACS, Constitution in 2020, Liveblog. Comments Off

Constitution in 2020 Liveblog Panel 5- Individual Rights

2:15 – 4:15   Individual Rights
Moderator:  Dan Kahan, Yale Law School
Panelists:  Elizabeth Emens, Columbia Law School; Rich Garnett, Notre Dame Law School; Paul Horwitz, University of Alabama School of Law; and Alice Ristroph, Seton Hall University School of Law

My comments in blue

Elizabeth Emens

Need to breath fresh life into ways of thinking about discrimination.Focus on small “c” constitutionalism. Focus on “disability” under ADA to understand discrimination. Three areas- discrimination, identity, and remedies.

With disability, no bad actors, but exclusion. E.g., Before ADA, building owners did not need to worry about building ramps.

Rich Garnett

Doesn’t want to be seen as the view from the other side. His proposal coheres well with the views of his ACS counteparts.

Proposal: need to better incorporat einto constitutional law debate of appreciation of roles and rights of religious institutions.

Discusses Balkin’s infrastructure of freedom of expression. Encourages developments of certain institutions- newspapers, libraries, etc. Plays role in civil society to allow individual freedoms of expression to be well exercised. These are conduits and scaffolding of civil society to allow free institutions to exist

Compares religious freedom to freedom of speech. Religion protected by institutions.

Infrastructure of religious freedom. Religious institutions shore up and facilitate religious conscience. Self-governing religious institutions provide the social ambasure of the social order where the individual human person can be secure in all places.

Paul Horwitz

First amendment institutions, what role they play in rethinking 1st amendment for 2020.

2020 is the wrong date for thinking about rethinking the constitution. Neither close enough to be within practical reach, or remote enough to imagine ourselves free to interpret the constitution.

How do we define institutions? What should the scope of their autonomy be? (e.g., Bob Jones, Boy Scouts case)

Alice Ristroph

To think about individual rights think about the individual creatures. Talk about violence in criminal justice system. Humans form governments to achieve physical security. Constitution will establishing governments to adjudicate conflicts peacefully, protect individuals from physical harm.

Three ways Constitution can regulate violence

1. 4th amendment prevents seizures, stops police contact, but cases does not support this

2. 4th amendment also governs use of force- pain, bruises, use of force that harms people, but court uses reasonable standard

3. 8th amendment cruel and unusual punishment- 8th has done some work in cpaital punishment, but not in the prison

Also use anti-discrimination norms of the Constitution to prevent violence, but Ristroph does not think this approach is strong enough.

Anti-violence norm in Constitution. Is there counter-majoritarian imitation? Not prepared to dismiss judicial review as quaint and obsolete.

Focus on Ulysses and the Sirens image. The constitution is a source of security and dangers that exist. Tie himself to mast. Safety in constitutionalism. Danger of departing from constitutional norms. Constitution is not a suicide pact. Must yield to security.

The constitution is risky and poses restraints on what we would do to keep ourselves safe.


Elizabeth Emens(not sure), Rich Garnett, Paul Horwitz, Alice Ristroph (Left to Right)


Ilya Somin, who is a big fan of public subsidies for the construction of the New Yankee Stadium

War on drugs, lage number of non-violent drug offenders in prisons, aggressive police tactics used in war on drugs, victimless crimes. Ilya does not want war on drugs in 2020. Amen.

Garnett- “orgy of over-criminalization.”

My observations

It almost seems like the panelists want to achieve some end, and they flip through the Constitution trying to find something, anything to justify her beliefs. This seems backwards. Shouldn’t the text of the constitution inform what the law is? I do not have a political science or philosophy background, but I would imagine if this conference was entitled Political Science in 2020 or Philosophy in 2020, there would not be much of a difference. These scholars are creating brilliant theories of society, government, policy and then as a footnote, try to make portions of the Constitution support it. This troubles me in a sense. All of their concerns are valid from a policy standpoint, but from a legal standpoint I don’t get it. Or maybe, I am too naive in thinking the law has a form. Is being a formalist just foolish? If the law does not have a form, then the law is whatever smart people say it is. If that’s the case, why hide behind the veneer of a written constitution? All this talk of “norms,” “constructs,” and “infrastructures” seem like talismanic incantations of juristic concepts, but ostensibly serve as a fig leafs for the authors idea of what is right and what is wrong.

Posted in ACS, Constitution in 2020, Liveblog. Comments Off

Is the Supreme Court Irrelevant?

At the conference, many of the panelists are talking about Professor Barry Friedman’s new, somewhat controversial argument, that the Supreme Court is irrelevant.

Since its inception, the Roberts Court has looked to avoid trouble. In the 2006 term, the Court’s center actually stopped short of overruling past decisions in at least four big cases, despite heckling from Justices Antonin Scalia and Clarence Thomas on the far right. This approach has prompted some to label Roberts a judicial “minimalist.” In the voting rights case itself, the chief justice delivered a stern lecture to Congress about how the provisions of the law “raise serious constitutional questions”–but then he walked away from the brink using that most hoary of judicial cop-outs, the “avoidance canon”: “[I]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of a case.”

Of course, predicting the Court’s demise is chancy business–there’s always a potential big moment just around the corner. Still, don’t expect much in the way of blockbusters from the Roberts Court anytime soon. Stuck between political forces on the left and conservative disarray on the right, the Court will most likely continue to creep rightward with no bold agenda.

There has been a lot of talk about the shrinking docket of the Supreme Court, but Friedman seems to be going out on a limb to say that it is not only taking fewer cases, but taking less important cases. I would point to Heller, and the recent cert grant in McDonald v. Chicago as pretty important blockbuster cases. A lot of the scholars here seem antagonistic to Friedman’s views. So we’ll see how this idea pans out.

Posted in SCOTUS. 2 Comments »

Small “c” Constitution and Big “C” Constitution. A constitution by any other capitalization would smell as sweet?

Repost from liveblog of Panel 4.

According to Professor Law, the Constitution in 2020 needs to focus on the small “c” constitution rather than the big “C” Constitution.

Small c constitution is law around economic and social law organizes. This law becomes difficult to uproot. Examples are APA and Civil Rights. Also EU treaty, NAFTA. These act becomes difficult to uproot. They are heavily entrenched by defending constituencies over time. These landmark statutes collapses the practical distinction between small c and large C constituitonal law.

This is similar to Ackerman’s landmark statute, and Eskridge’s super statutes.

A constitution by any other capitalization would smell as sweet?

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Constitution in 2020 Liveblog Panel 4- Constitutional Theory

Panel Four:
10:30 – 12:30 Constitutional Theory
Moderator and Commentator: Paul Kahn, Yale Law School
Panelists:  Jamal Greene, Columbia Law School; David Law, Washington University School of Law; Sophia Lee, University of Pennsylvania Law School; and Richard Primus, University of Michigan Law School

My comments in blue. I will be updating this post, refresh often.

Jamal Greene

Thanks the Regan OLC Constitution in 2020 for yielding this conference. He quotes from the Report. Few areas where Court ahs shifted in ways justified by Originalism. He thinks originalism’s contributions are largely immaterial.  Heller, Booker, Crawford, and a few other landmarks come to mind.

Originalism movement has been successful, but not by affecting constitutional democracy, but in validating the conservative politics. Originalism is a methodlogy and a symbolic langauge. Originalism dovetails nicely with conservative politics: Preservation of the past, homogeniety, Prosetantism, jurispathos. Originalist idiom that ties conservative political boundaries, and political commitments that find concrete expression to meaning of constitution. Originalism important buttress to politics, not generator of constitutional doctrine.

What should con law scholars be doing with their time? IF aim is to push a constitutional doctrine toward progressive political commitments, best way is not to promote a constitutional methodolgoy. Didn’t work for conservatives. Progressive shouldn’t do it. If you don’t have a constitutional methodology, what do you use? Evolving standards? Emanations and penumbras?

Progressive intellectuals should not think of what judges should do for them, but what they can do for judges. Dont expect judges to be foot soldiers. This continues the left’s trend away from relying on the (for the time being) conservative courts, and focusing on social change in the legislature. Privileges or immunities is gonna play some role in this.

Role for constitutional theorists is narrow.

Originalists are engaged in patricide. C2020 is a project of persuasion.

Sophia Lee

Move from ideas to institutions.

A constitutional theory that equal protection under 5th amendment provides equal employment. Checked my pocket constitution, still searching for equal protection clause in the 5th. Yes, I know, Bolling v. Sharpe ;) DOJ lawyers considered this theory untested.

She contrasts the role of administrators and judges. The role of administrative agency’s to enforce constitutional law, through notice and comment.

Richard Primus

Constitutional lawyers are made to masquerade as historians. LOL.

Constitutional arguments always traffic in history, falls into 3 categories:

1. argument can be offered for positive authority- content of law today is because of things that happened in the past. For example, substantive due process- in due process, if firmly rooted in our traditions (Washington v. Glucksberg)

2. history as practical experience- are judges likely to get this right, is this policy going to be good. use history as social science. use comparative data from other countries and history of america. if worked before, will work now

3. history as national ethos- use ehtos as Hobbit- modality of constitutionality of arguments. Not moral history. Argument about character of America as a polity, American as people. We are the people who rebelled against an empire, fought a civil war against slavery. Value laden sense of constitutional order, dictates who we are. This is usually the most powerful to legitimate or persuade in constitutional form.

Constitutional arguments need powerful visions of ethical history to legitimate the argument.

If you control the authority, easier to win under the issues. Also, meaning of history is contested value in constitutional law. It is at stake. FIght about the history, care about it as a means, and and ends. History is repository of individualized meaning. Depending on normative constitutional meaning, would like Civil Rights or Reconstruction to mean this or that.

Primus did some field work after Heller and went to a gun range. He said he rented a gun and rented an ammunition. LOL, you don’t rent ammo.

Most important thing he learned, Mel Gibson’s the patriot plays on repeated loop on the video screens. The movie is a telling of ethical history of the founding from a particular point of view that dovetails with a particular take on the second amendment. American history means that, then everything follows for the second amendment. Want the history to mean that. Burning desire to rescue American history where it has gone wrong.But maybe story can be different. This is a compelling argument.


If only we could reverse Slaughterhouse, bring back P/I, we can redeem reconstruction, and Plessy and Jim Crow can never happen.

Ethical history is complex. Functions of ethical history is to legitimate and persuade. Scholarship should respect complexity. Be skeptical when someone presents The History! Scholars should not masquerade. This mirrors Posner’s claim that historians have no role in originalism. Though I argue, courts rely on lots of other experts in antitrust, labor, forensics, statistics. Why are historians any different? I’ve written a bit about this before. I’ll blog about it again.

Primus was the star of this panel. Hands down. He’s Amar-esque.

Richard Primus En Fuego. I like him.

Richard Primus En Fuego. I like him so he gets a close-up.

David Law

C2020 needs to focus on the small C constituiton, not just the big C constitution signed by John Hancock. Umm… That’s the Declaration. Nevermind. Sorry for the snark. I’ve been pretty behaved. What exactly is a small c constitution?

C2020 needs to be comparative and international in its methodology and objective.

Cannot limit ourselves to what the Constitution does. Constitution is Janus faced- looks backward and forward/dyanmic.

We ask the constitution to carry the weight of our needs.

Constitutional theorists have interest in advancing constitutional worship.

“Foundation of this nation is not bedrock, but a green leafy plant to grow.” Huh? Is this some kind of Raich argument.

Small c constitution- law around economic and social law organizes. The law becomes difficult to uproot. APA and Civil Rights. Also EU treaty, Naft. Act becomes difficult to uproot. They are heavily entrenched by defending constituencies over time. Collapses the practical distinction between small c and large C constituitonal law. OK now I get the distinciton. This is similar to Ackerman’s landmark statute, and Eskridge’s super statutes. A constitution by other capitalization would smell as sweet?

Expand small c constitutional practices.

Would rather change the Judiciary Act of 1789 than appointing Justices.

What interests were the founders expanding? What kind of constitution would give us the country we want? How to get there without having to “jawbone” judges.

C2020 needs to be comparative and international in approach, methodology, and objective. The US Constitution in 2020 cannot just be about the US Constitution. Got it.

C2020 can advance global peace and democracy.

Don’t focus on judicial hermaneutics and originalism.

At a global level, C2020 needs to

1. articulate policy making mechanisms that are global in scope to consider positive and negative externalities.

2. People should have say in policy making. Elections are not only way to make democracy happen.

3. guiding principles to motivate policy making

Talking about his Canadian heritage. My only comment aboot that.

Paul Kahan

Cracked another death panel joke. Some facebook post there Sarah!

No one has a broad theory of the constitutional law.

Constitutional theory has moved from courts to social movements. I have heard this point made several times this weekend.

Originalism dominates. Progressive theory on the offensive to dismantle originalism. Originalism attractable politcally. Any counter-theory vulnerable to political attack.

Judicial nominees mindless repeat they will apply the law as it was written. I agree. Sotomayor made this point over and over again. I doubt she actually believes this.

Complexity doesn’t sell. The progressive theory is progressive.

Critique of originalism has morphed into critique of theory. Intellectual agenda shifted to the Right.


Ilya Somin

Talking about Barry Friedman’s book, role of the courts, angels dancing on a pin, and why the New York Yankees are the greatest baseball team and the Red Sox suck. j/k

Here is a link to Friedman’s article why SCOTUS is irrelevant. See also.

Primus- Barry Friedman is wrong. The Supreme Court does matter in certain circumstances to certain.

Discussion of the constitution inside and outside of the Court, with respect to legislative constitutionalism.

Ilya Somin, #1 Yankee Fan!

Ilya Somin, #1 Yankee Fan!

Neil Siegel

Do Justices worry about counter-majoritarian dilemma (from Bickel)?

Law- there is a gap between actual counter-majoritarian dilemma and what they consider a counter-majoritarian dilemma. Courts can’t let people see what happens when they do not follow the law.

Bruce Ackerman (no question here, just a soliloquy)

Law office history is flawed because it is selective.


David Law, Richard Primus, Paul Kahn, Sophia Lee, Jamal Greene (left to right)

Yale Professor Paul Kahan as Che

Yale Professor Paul Kahan as Che

One of the students was wearing this shirt. He explained that his small class group made t-shirts with Professor Paul Kahan as Che. And yes, he gave me his permission to post this pic to my blog. I did not capture his face.

Portrait of Alexander Bickel. His name came up a dozen times, so I figured he deserved a closeup.

Portrait of Alexander Bickel. His name came up a dozen times, so I figured he deserved a closeup.

Why should employees get economic rights, but not employers?

(this is a repost from my liveblog of Panel 3).

Perhaps I am just ignorant, and I haven’t given much thought to the issue of collective labor, but why should employees receive “economic rights” but employers should not. Why does the worker get the right, but not the employer? Why is the right to work an economic right but liberty of contract is not an economic right. Aren’t these rights two sides of the same coin? Who is John Galt?

I suppose one answer would be that unions serve a social role of leveling income distribution, and this compelling interest dictates that the workers get the rights, while giving the rights to the employers would exacerbate social inequality. I think that makes sense.

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Ackerman on Entrenchment. If Social Security is entrenched, why isn’t the Constitution?

(this is a repost from my liveblog of Panel 3).

Bruce Ackerman made these comments (not transcript, but my best attempt to capture what he said):

Bruce Ackerman is commenting that a constitution should be an entrenchment device. How hard is it for next generation to move it around? Compare Brown v. Board to Social Act. Brown is a failure. In Parents involved, Supreme Court gave up on social aspect of Brown.

FDR considered social security as a entrenchment device. If FDR put it in, it will never go away. We need to design constitutional ideals and landmark statutes so they are hard to appeal. Bad entrenchment for healthcare would be disastrous.

I love Ackerman’s unbridled cynicism, but unfailing genius to persuade. He wants these landmark statutes to become so entrenched they can never be removed. I would say the text of the Constitution is the ultimate entrenchment device. Article V is the total entrencher! But somehow, Ackerman thinks that the Social Security Act is entrenched, but the text of the Constitution isn’t. Does that make sense ?

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Pic: Constitution in 1789 signed by authors of Constitution in 2020

Federalist Society Pocket Constitution and Constitution in 2020 signed by Jack Balkin, Reva Siegel, Robert Post, and Bruce Ackerman. This will NOT go on ebay.

Federalist Society Pocket Constitution and Constitution in 2020 signed by Jack Balkin, Reva Siegel, Robert Post, and Bruce Ackerman

Federalist Society Pocket Constitution and Constitution in 2020 signed by Jack Balkin, Reva Siegel, Robert Post, and Bruce Ackerman

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Constitution in 2020 Liveblog Panel 3- Social Rights

Panel Three:
9:00 – 10:15 Social Rights
Moderator and Commentator:  Vicki Schultz, Yale Law School
Panelists:  Risa Goluboff, Virginia Law School; Jacob Hacker, Yale University (Political Science); and Ben Sachs, Harvard Law School

My comments in blue. I will be updating this during the day so refresh often.

Risa Goluboff

Discussion of the labels of civil rights, political rights, and social rights in 19th century. Social rights, as in Plesssy, were outside of the Constitution, and were not protected. Harlan dissented in Plessy, and considered riding in a train car as a civil right, and not a social right. In the 1950′s-60′s civil rights and social rights evolved during Civil Rights movement. Term social rights fell out of use, and everything merged into civil rights. In international distinction between civil and political rights, and social and economic rights. Some literature suggests importing terminology from international sources. She does not agree with these items. Right to healthcare, education, housing are considered civil and political rights in International law. United States ratified INternational covenant of civil and political rights, but did not ratify Inernational convention for economic, social, and economic rights.

Judicial unenforceability of social rights. Some think courts will not protect and legislatures are better to protect. For Constitution of 2020, she would like robust aspirations for constitutionally enforced social rights.

Main obstacle is calling these rights social rights.

Jacob Hacker

A student once told him, “If I had 15 minutes to live, I’d spend it in your class, because it will seem like an hour.” LOL!

Hacker is a political scientist, and not a constitutional law scholar. He said, you do not have to be a constitutional scholar to talk abotu social rights because the constitution holds “limited promise.” Well, duh. This is my main objection. The constitution is an obstacle, and not an enabler for this conference.

Discussing economic inequality in America. Top 10% of Americans earn a 1/3 of national income from WW II – 1970′s. In 1970′s, was 50%. Narrow slice of top 10% making out so well. Top 1% had 9% of income. In 2003, jumped up to 23%. Person behind me proclaimed “Jesus.” Half of Americans go without health insurance. Family declares bankruptcy every 15 minutes. 45,000 Americans die because of lack of national health insurance. There is a grave challenge. So Hacker asks what is the role of the Constitution and the judiciary to address this challenge.  See my previous post. There’s a problem? So what.

Courts wont use Constitution on a positive front to address these problems. Courts should stay out of the way. Not desirable to base larger compaign for larger security on the Constitution, per se, or ground it institutionally in the judiciary. So why is this conference called the CONSTITUTION in 2020 and not the progressive agenda in 2020?

Legislatures can address these issues. Hopefulyl we will not face a Lochner court to stand in the way (read, enforce the Constitution). Talking about Ackerman’s concept of national citizenship, twin commitments to equality and liberty.

Founders, Hume, Montesqiue considered large concentrations of wealth were bad for political inequality. Vast difference in economic standing would lead to vast difference of political standing. This got tied in early 20th century to legal realists.

Adam Smith quote- “Whenever there is great property, there is great inequality.” He said Hayekians seldom bring out this quote. I want to track down the full quote becuase I couldn’t transcribe the entire quote.

When people know about greater dimension of inequality, people more likely to support redistribution.

Ben Sachs

Right of workers to engage in collective action to improve working conditions and better lives. Right? How is this a right?

The most promising avenue for workers progress is NOT constitutional perform, but legislative action. I keep hearing this same refrain. Constitution is not relevant.

How to achieve this:

1. Concerted activity by workers.
2. Action at State Houses

Economic equality and political equality, and role of unions to equalize wealth.

Campaign finance law- deal with distorted effect of wealth on politics. Commitment to political equality demands stop treating  union spending as corproate spending.

Legislative, rather than constitutional law.

“Unions and constitution have history of unrequited love.” LOL

Not much has been found to locate union rights in the Constitution. Constitution only offers minimal protection for minor collective actions. 1st and 13th amendment provide minimal protections, no right to strike. How is the 13th amendment supposed to protect right to strike? Maybe I’m ignorant.

Political power by workers, and constitution that doesn’t “stand in the way of the exercise of that power.”

We have cleared away “constitutional hurdles“to acheive collective action. Liberty of contract no longer a problem for now. Plenty of room in commerce clause to facliitate colective activity. Oi vey.

Card check will eventually pass, increased protection for organizing activity. Constitutional arguments against Card check will be raised- 1st amendment on employer speech, non-delegation speech. Not worried about objections.

Greatest promise at state and local levels. Preemption problem, political power which workers have built at state and local level cant be translated into progressive labor legislation. Amend federal stautute to allow states to experiment. Wow, he’s a Federalist!

Best bet for progress on workers progress lies in political and legislative work, first at federal level to free up state experimentation, then at state level to accomplish things not on radar in Washington.

Unions attacked for leveling distribution of income, but that is exactly their goal. Unionization means more of income of a firm goes to employees, and less to owner. Unions increase income equality.Oi vey. Spread the wealth!

Reduce income inequality, help reduce political inequality.

Congress has constrained effect of economic inequality on political sphere through campaign finance. Harder to constrain effect once you have allowed powers to establish themselves. Campaign finance laws may soon be invalided. Let’s hope so. Hillary movie FTW!

In campaign finance laws, corporations and unions should be treated equally. He thinks this is wrong.

Unions and corporation are not the same. Treasuries built from contributions of lowest paid members of society. Unions represent views of low-level workers. Corporate treasuries built differently. Limiting corporate spending has leveling effect. Limiting union spending does not achieve this. Vision of constitutional equality should help to achieve this difference.

Vicki Schultz

She commented and summarized the other panelists. Questions for panelists.

Question for Risha: Social rights make her nervous. She prefers economic citizenship. Every citizen has privilege for men and woman alike to achieve economic autonomy- right to work (right, does someone have to hire you) and train for an occupation of one choice, and combine with hcild rearing and other significant life commitments. From Alice Kessler (sp). Why not speak of economic rights? Is McCarthyism so deep and embedded that we can’t talk about economic (socialist) rights?

She is puzzled why we don’t call these rights economic rights. Why is the right to work an economic right but liberty of contract is not an economic right. Why does the worker get the right, but not the employer? Who is John Galt?

Question for Ben: To Ben, the constitution is an impediment. This depends on formalist view of the constitution, and not a law and society view of the constitution; the constitution of aspirations and the rights and hope of us all. What? What role does or could the constitution, or the “idea of the constitution” not to create judiciall enforceably rights but to inspire society to dream up a more democratic society. What? Why bother mentioning the constitution if you are more comfortable with the mere idea of it?

Rising inequality and insecurity in America today. Talking about healthcare again. Between TR and FDR, evolution of how to progress political inequality created by economic imbalance. TR- Private property should be servant, not master of the commonwealth. FDR- “for too many of us the political equality we once had was meaningless. a small group concentrated in their own hands, have complete control of others property, labor, lives.”

Question for Jack: What forces can galvanize citizenry to take back our democracy. What is common vision that appeals to all of us to come together for benefit of us all? How collectivist. Notions of political equality are hollow shells. Need to fill out those shelsl wiht something that means something to people in their everyday lives. In US, right to work and to earn are inevitable in America, to build for others. Clintonian notion- work should pay. Can this be expressed in a universalized means, not in a gendered fashion.

Not the Constitution, but Wagner Act had inspirational affect on movement. CIO had signs that said, the president wants you to join a union. To what extent can the Constitution play this role today? Best chance is appeal to economic equality. Is this in the Constitution? It is probably wrong to think about this too monolithically. Different groups of workers respond differently to different groups of claims. E.g., immigrant workers, and importance of citizenship to those organizing.

Republican senators are in “La La” land except for a couple senators from Maine. ROFLOL. LMAO.


Bruce Ackerman

The constitution is an entrechnmetn device. How hard is it for next generation to move it around? Compare Brown v. Board to Social Act. Brown is a failure. Parents involved, Supreme Court gave up on social aspect of Brown. FDR considered social security is entrenchment device. If FDR put it in, it will never go away. We need to design constitutional ideals and landmark statutes so they are hard to appeal. Bad entrenchment for healthcare would be disastrous. I love Ackerman’s unbridled cynicism, but unfailing genius to persuade. He wants these landmark statutes to become so entrenched they can never be removed. I would say the text of the Constitution is the ultimate entrenchment device. Article V is the total entrencher! But somehow, Ackerman thinks that the Social Security Act is entrenched, but the text of the Constitution isn’t. Does that make sense ?

Reva Siegel

Racial and social inequality were once entangled in the 1960s. Challenge now to recover distributive understandings of race.

The panelists also answered a question about langauge, and developing a framework and lexicon to “get on message.” I find that one of the geniuses of these scholars is to develop nice terms to describe concepts that I vehemently disagree with. Messaging so so important.


It’s worth noting that the four panelists are all progressives. I understand this conference is meant to explain the liberal view of the Constitution, but some balance would definitely have made this panel a little easier to swallow. Also, all of the questions from the floor were sympathetic. I’m inclined to ask a question here, but this is way out of my comfort zone, and I don’t feel I can contribute much here. To reiterate my point I made earlier this morning, the conference has a feeling of incestuousness, in that progressives are asking progressives questions, and there seems to be little dissent.

Vicki Schultz, Risa Goluboff, Jacob Hacker, Ben Sachs

Vicki Schultz, Risa Goluboff, Jacob Hacker, Ben Sachs

Society has a problem? So what. Just because there is a problem, doesn’t mean the Government has to offer a solution.

I was chatting with a very bright Yale 3L last night, and we were talking about a wide range of legal issues. I found that our discussion always boiled down to one point. She said there is some problem in society (health care, the press, the free market, etc). I agreed with her, and said so what. In my mind, just because there is some societal ill doesn’t mandate the government getting involved. Particularly, just because there is some societal ill doesn’t mean the Constitution allows governmental action.

Perhaps my blind faith in the invisible hand is too idealistic, but in most cases, I would rather suffer the societal ill and leave man’s liberty intact, than infringe on a person’s freedom in order to attempt to solve that problem. The government’s track record is abysmal at best. The government does a lot. Too much in my opinion. Yet we still have a LOT of problems. And there will always be problems.

So the next time someone bemoans some problem in society, just reply, so what.


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