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