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

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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.

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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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