Constitution in 2020 Liveblog Panel 2- Roundtable: About the Constitution in 2020

Panel Two:
5:30 – 6:30   Roundtable:  About the Constitution in 2020
Moderator:  Neil Siegel, Duke Law School
Interviewing:  Bruce Ackerman, Yale Law School; Jack Balkin, Yale Law School;
Robert Post, Yale Law School; and Reva Siegel, Yale Law School

Update: I attempted to liveblog on my blackberry. In the modern lexicon, the formatting was an epic fail. My apologies. I will bring my laptop tomorrow, and hopefully the generous IT souls at Yale will provide free Wi-Fi. If not, back to the blackberry.

My comments in blue.

Reva Siegel

Siegel began by telling the story of how the Constitution in 2020 emerged. Dawn Johnson hosted conference, where she discussed General Meese’s Constitution in 2000, a document from Reagan white house. This document was restorative and not reconstructive. She attributes this document to the start of originalism.

While the Constitution in 2000 closely tied to politics, Constitution in 2020 makes change possible, and is not fully utopian.

Robert Post
Dean Post began by discussing a theory of democratic contitutionalism. He describes the concept as paradoxical. The best constitution may not be our constitution. Democratic change happens when the people try to take ownership of constitution. We are living with constitution we didn’t make. If we don’t like it we should change. But article 5 is inadequate. Ackerman made the same point, and called Article 5 obsolete. Any other provisions antiquated to Professor B? Maybe the 2nd amendment? How bout the First? The Constitution becomes ours through “norm contestation.” Changing understandings of society make us read the constitution differently. He aims to link cultural values of generation and our understanding of consitution.

Things that don’t appear to be constitutional are. For example same sex marriage. While same sex marriage suits are ostenisbly about states rights and federalism, they are really about same sex marriage. “The constitution is practically at sake.” I suppose this makes sense if Lawrence is extended to SSM, but I recall the majority specifically wrote that SSM is not covered under the DPC. Not yet at least.

Link democratic costitutionalism and originalism? Question.

Jack Balkin

He began, “My name is Jack, and I’m an originalist. Also I’m also a living constitutionalist” Some much needed laughter brought the house down. Balkin considers originalism and the living constitution 2 sides of same coin. Unfortunately, he did not elaborate on this concept.

Balkin posited that there are 3 values to any constitutional theory.
1. Legitimization- a constitutional theory must make whatever government does seem legitimate. In other words, make the unjust appear just.
2. Dissent- The constitution often creates dark times for all people. Balkin’s example was abortion; it is a dark time for pro-life and pro-choice. The Constitution must enable the right of dissent.
3. Persuasion- A constitutional theory  changes when people persuade that what we thought it meant isn’t what it meant. As Balkin explained it, we change what’s off the wall to on the wall. Norms change. What’s unreasonable yesterday may become reasonable today.

Balkin applies his framework to Conservative use of originalism.
Conserv use of orig 1970-95:

1. Legitimization- the processes in the Constitution legitimize the rule of law.
2. Dissent- conservatives argue, and dissent that the Constitution was taken away from them.
3. Persuade them- conservatives seek to persuade public that something is wrong, and has to change

In order ot redeem and restore the constitution, you must move what’s off the wall onto the wall. Transform the unjust to the just. Balkin advises that you need to understand these principles to understand constitutional theory. This discourse was, imho, the highlight of the event.

Balkin turned to the Supreme Court Justice confirmation process. He quipped, that the justices not dying frequently create problems. Lol. Brought the house down again. They used to die or retire every other yars. He bellowed, “Your turn to die” and quipped that these were judicial heath death panels. Guess that Sarah Palin post was pretty influential after all.

Balkin also informed the crowed that Consttution was amended in new deal. You didn’t get memo, he asked? Laughter. Nope, I’m still waiting for my memo.

Balkin Proposal to improve SCOTUS nominations.
1. Snate abolishes 60 vote rule for erything. No amendment to constitution needed, just change intenal rules.
2. Every 2 yrs the President gets new SCOTUS appointee. What to do with all those pesky justices running around? Balkin argues that a quorom is not mandated under the Constitution. Under his approach, the 9 most junior justices decide cases, while the senior justices perform ministerial tasks like the cert pool. I’m skeptical if this is constitutional under Article III.

Bruce Ackerman
Ackerman opened with the two main themes in American history are identity (who are we?) and economic justice.

Unlike Balkin, Ackerman is NOT an originalist. Because society has made a lot of progress on identity, Ackerman wants to turn back to question of economic justice. While there has been progress on national identity, there has been regress on economic justice. Amerca on verge of plutocracy. Top 1 percent own 41 perc of wealth. That’s it?

Ackerman then began on a new path that mirrors Chapter 10 of the Constitution in 2020. He argues that certain “landmark” legislation are “constitutional statements” to “build a constitutional order.”Don’t stick to article 5 which is obsolete, Ackerman argues. Landmark statues for economic justice become part of constitution, even without the Amendment process. I’ll give Ackerman a gold star for creativity in making up these eloquent nomenclatures, such as constitutional statements and constitutional orders, but I don’t see how you can write out Article V based on labeling it obsolete.

Among these landmark statutes are the Civil Rights Act of 1964, the Social Security Act, the Voting Rights Act, and others. Ackerman said that we cannot rely on courts (which unfortunately for the forseeable future are Conservative) to protect these civil rights. Rather, we must rely on the legislature. Neil Siegel quipped that Scalia will only be 83 in 2020, and that 83 is the new 73. Should we wait for const in 2030? Lol

Then Ackerman treaded on a point I have been considering deeply. Would these landmark statutes be considered rights of national citizenship? And if so, would these positive grants of rights be grated as the privileges or immunities of national citizenship under the 14th amendment? If so, would this be a framework for transforming mere “landmark statutes” to the order of a new “constitutional order.” He did not come out and say this in Chapter 10 of his book. But where he is going is clear, in my mind at least.

So I asked him this exact question. His answer, unsurprisingly. Yes.

I also asked Professor Ackerman about his thoughts on the cert grant in McDonald v. Chicago, and the question presented dealing with the privileges or immunities clause. He looked intrigued, but said he hadn’t thought about it.

I also spoke with Professor Balkin about this same point. I will blog further about this later.

Summary.
This panel was filled with all-stars. I’m entranced listening to them, yet I agree wth litle of what they said. But wow, amazing panelists.

R. Siegel, Balkin, D. Siegel (not sure if they are related), Post, Ackerman

Reva Siegel, Jack Balkin,Neil Siegel (not sure if they are related), Robert Post, Bruce Ackerman (left to right)

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Constitution in 2020 Liveblog Panel 1- America and the World

Panel One:
America and the World

Moderator:  Bruce Ackerman, Yale Law School
Commentator: Oona Hathaway, Yale Law School
Panelists:  Muneer Ahmad, Yale Law School; Aziz Huq, University of Chicago Law School; Jenny Martinez, Stanford Law School; and  Jon Michaels, University of California Law School-Los Angeles

See balkinization for more info.

My comments in blue.

Dean Post

Dean Post began the conference discussing how the constitution is both enduring and changing, praising all of the famous Yale scholars who have contributed to the modern constitutional jurisprudence. He also thanked the ACS, Balkin (who I am sitting next to) and others for organizing.

Dean Post

Dean Post

Aziz Huq

Huq dscussed social movements as a means to cause constitutional change, focusing on Muslim Americans. He contends Muslim Americans are the perfect candidate to serve as what Bruce Ackerman deemed a public choice “effective agent” (Article- Beyond Carolene products). This continues the trend throughout the book towards using social movements to effect change, and not effect change through the courts. Not a single mention of any aspect of the Constitution.

Muneer Ahmad

Ahmad seeks to equate personhood and citizens so that aliens (non-citizens) still get citizenship rights, which he argues are more substantial than personhood rights. He argues the left’s move from citizenship to personhood is wrong. Relying solely on personhood is difficult. He wants to define a “social citizenship” for alien citizens. He seeks to argue to courts that an alien is like a citizen, so he ought to be treated like a citizen. He wants to eliminate the “divide” between citizens and non-citizens. In other words, ignore the constitutional/statutory definition of citizen. Rather than not mentioning the constitution, this speaker seeks to ignore the clear textual dichotomy between rights of persons and citizens. In the text of the 14th amendment citizens get privileges or immunities while persons get due process and equal protection. This approach would effectively give aliens protection under privileges or immunuities. This seems to be part of the trend to expand p/i, not just the scope of rights, but who receives them.

John Michaels
Michaels discussed structural issues, econ international legal trends, globalization, tech transformation influencing national security, national governments monopolizing the use of force.

Oona Hathaway
Hathway sought to consider America in the world in two ways: making international law and making war. President makes war without consulting congress. Her vision for Constitution in 2020 is a contrary vision on making law and making war.

80 percent of international law made by POTUS acting alone. Article 2 treaties affecting human rights are undemocratic. She proposes making international law through congress. Make international legal commitments involving congress and president through a democratic process. Also proposed administrative process to create international law, mirroring the administrative procedures act. She wants domestic oversight of international law. Is there any constitutional basis for this view of foreign law? Ill check out her article on ths point for some kind of textual mooring.

Next she spoke about limited war and the constitution. Congress has central role to make war but role minimized. War continues whether congress participates or no. She wants congress to play a role in continued war. Progressives want to reintroduce democracy to making international law and making war. She blurted out “original vision of const that has to be retored” in last sentence. What vision is that?

Bruce Ackerman
Ackerman would seek to change the law for authorization force.  Through amendment or is article 5 obsolete? He proposed that the default rule is that whenever war is authorized, authorization expires after 2 years(or some other predetermined period). After 2 years, on the vote of one senator or congressman, congress stop appropriations. I think this was his proposal, but I may be mistaken because my notes aren’t clear. Democracy forcing the president’s hand. Congress can consider how limited war should be.

Citizenship is exclusive. Ackerman seeks to expand the definition of citizenship. Aliens “engaging in citizenship as practice” by paying taxes should be considered as citizens. He mentions that privileges or immunities applies to citizens only. He feels that it is a great loss to ignore priv/imm. Pointing to the portrait of Bickel on the wall, Ackerman commented that Bickel praised Slaughterhouse bc it forced courts to focus on personhood. Ackerman thinks this is wrong.

Ackerman wants to Revive privileges or immunities. He wants to consider language of citizenship without thinking only of actual citizens. Think of “citizenship as practice” He wants p/i to apply constructive citizens. That is aliens without citizenship

Unlike others Ackerman tackles text of const but tangoes around citizenship clause. He calls aliens “citizens in practice”. That is they pay taxes, work, raise families. Citizenship thus is no longer a legal status but a social norm construct. How to define citizenship in practice, or who gets to make this determination, I know not. Ackerman also wants to add checks and balances to nation security law.

Ackerman also repeated his idea each citizen should get $100,000 at birth as right of equal national citizenship. He would finance this project with 2% wealth tax on earners making more than 600k. He assumes a 1/3 tax evasion. Who is John Galt?
But this would be right of citizenship, not right of persohood. But Ackerman acknowledges that this issues reflects tension between priv/immun for non-citizens. This makes his concept of “citizenship in practice” granting citizenship to non-citizens all the more important in granting this inheritance gift to aliens.

Questions

Mason Professor Ilya Somin posed a fantastic question: Why is congress better suited to deal with issues than the Preisdent?.

  • Ahmad answered that Cong is more responsive.
  • Huq responded that cong is better at eliminating agency costs and that cong speaks with many voices. I’m not sure if this makes entire sense from a law and economics perspective.
  • Ackerman argues this is essential because of the presidential bait and switch. If the President misleads Congress at the begining regarding the nature of the conflict (for example the President sells a limited strike in Iran but engages in a protracted ground war). this is institutional weakness.
Oona Hathaway, Jon Michaels, Bruce Ackerman, Muneer Ahmad, Aziz Huq (left to right)

Oona Hathaway, Jon Michaels, Bruce Ackerman, Muneer Ahmad, Aziz Huq (left to right)

Perfect Seinfeldian snack at c2020 conf

Pretty sparseley attended I’m surprisedits in a lecture classroom and not the huge auditorium. 15 mins to go,room 40 percent filled

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Pic: Fed soc pin and pocket const ready

Based on the overwhelming poll results, I will be attending the Constitution in 2020 conference proudly bearing my Madison Federalist Society pin, and asking around to have Fed Soc pocket constitution signed. 2 hours to New Haven.

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Prof. Johnson grades the Original Constitution a B-, Madison rolling over in his grave

Over at PrawfsBlawg, Professor Johnson, writes that the original Constitution drafted in Philadelphia is not that well written, and contains many scriveners errors and interlinations.

He points out one crucial error that I never noticed:

In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy. The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.] The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”

How can you screw up and write something like that unless you are totally mentally wandering while doing it? This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship?

Johnson references a total of four interlineations in the Constitution: “U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).” Also, Johnson blasts the drafter, Shallus for a shoddy job including “erasures, a misspelling, and wildly inconsistent capitalization”

As Johnson notes, “the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.”

What’s a Textualist to do when the text of the Constitution is flawed? If you saw Scalia, the Textualist who holds the Constitution on his shoulders, if you saw that he stood, blood running down his chest, his knees buckling, his arms trembling but still trying to hold the text of the Constitution aloft with the last of his strength, and the greater his effort the heavier the Constitution bore down upon his shoulders – What would you tell him?

Shrug.

Justice Thomas continues speaking. You continue listening.

In addition to his interesting CSPAN interview, here are some more links to recent Thomas, J., sightings.

For the most reticent member on the bench, he sure loves chatting it up. H/T How Appealing.

Law.com has an account of his talk at SMU, and Thomas, J., further opines the value of oral arguments and why he abstains from asking questions.

In response to Olson’s questions about the value of oral arguments, Thomas said that sometimes they made a difference but rarely did they change votes, and never did they make a difference on a sustained basis. Olson asked if oral arguments should be dispatched with altogether. Thomas said no but that the other court members should let the advocates talk rather than peppering and interrupting them with questions. He said, “I have no idea what they are doing,” about his fellow justices who speak more often in oral arguments and speculated that other justices may be seeking “to get a chuckle out of the audience.”

I wonder which Justice(s) tries “to get a chuckle out of the audience.” Well I’ll give you a hint, according to the Supreme Court’s seating scheme based on seniority, Justice Thomas will be sitting right next to him come Oral Arguments! The SMU school newspaper has further reports.

Justice Thomas on precedent and liberty, and some great audio, after the jump.

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Liveblogging Constitution in 2020 Conference. Follow me @JoshBTweets for Updates.

There will be two panels tomorrow:

Panel One:
3:15 – 5:15   America and the World

Moderator:  Bruce Ackerman, Yale Law School
Commentator: Oona Hathaway, Yale Law School
Panelists:  Muneer Ahmad, Yale Law School; Aziz Huq, University of Chicago Law School; Jenny Martinez, Stanford Law School; and  Jon Michaels, University of California Law School-Los Angeles

Panel Two:
5:30 – 6:30   Roundtable:  About the Constitution in 2020
Moderator:  Neil Siegel, Duke Law School
Interviewing:  Bruce Ackerman, Yale Law School; Jack Balkin, Yale Law School;
Robert Post, Yale Law School; and Reva Siegel, Yale Law School

Absolutely standout panelists. Not too much balance, but Ilya Somin and Rich Garnett, who are speaking on panels on Saturday and Sunday, should fight the good fight. Should be fascinating.

I’ll keep you posted with blog updates, memorable quotes, and some instant pics! Follow me on Twitter to get updates when they happen.

Posted in ACS, Constitution in 2020, Liveblog. Comments Off on Liveblogging Constitution in 2020 Conference. Follow me @JoshBTweets for Updates.