Constitution in 2020: Response to Professor Horwitz

Over at PrawfsBlawg, Professor Horwitz provides a very thoughtful response to one of my comments on my liveblog of the Individual Rights Panel at the Constitution in 2020 Conference.

I wrote:

“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.”

Professor Horwitz writes in reply:

This is a well-worn criticism, one that of course is used against both left- and right-leaning constitutional theorists, and I can certainly understand its looming at this conference, for reasons I’ll expand on below.  I’m not sure, however, that it was an apt criticism of this panel.  All of us did, in an important sense, start with constitutional text — Elizabeth Emens, who spoke on disability rights, started with the Equal Protection Clause, Alice Ristroph spoke about the criminal procedure amendments, and Rick and I started with the First Amendment.

Perhaps 3 years of studying originalism at George Mason has made me somewhat of a purist to policy arguments about what the Constitution ought to be. Professor Horwitz is quite right that all of the panelists began by mentioning various clauses of the Constitution. Though, for the most part that is where the discussion ended.

But Professor Horwitz divided the speakers at the conference into 3 categories. This distinction helped put the conference into a much clearer focus

(1) Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists.

(2) Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable.

(3) Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don’t care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives.

This hits it right on the head.  We are in agreement over the panelists who fall into category #1. My comment regarding the Constitution as a footnote mirrors Professor Horwit’s comment that the constitution “was present but only sitting in the passenger seat.”

I think where I disagree with Professor Horwtiz is where the boundary blurs between group #1 and group #2. I am not exactly sure what a “Good-Faith” constitutionalist is. My view of the Constitution is such that there isn’t room for a “politically progressive constitutionalism” nor room for a “politically conservative constitutionalism.” There is only room for the Constitution qua Constitution.

Professor Barnett has written about whether the Constitution is Libertarian. I think this is a different inquiry than a “Good Faith Constitutionalist” arguing that there is room for a “politically progressive constitutionalism.” While Barnett argues that the founders wrote a libertarian constitution, modern progressive scholars say that the Constitution ought to become progressive due to changing circumstances.

For that reason, I don’t see too much of a difference in practice between Group #1 and Group #2.

Posted in Constitution in 2020. Comments Off on Constitution in 2020: Response to Professor Horwitz

Constitution in 2020 Liveblog Panel 8- Roundtable-The Constitution in 2020: Getting There from Here

Panel Eight:
11:30 – 1:15 Roundtable–The Constitution in 2020: Getting There from Here
Moderator:  Pam Karlan, Stanford Law School
Panelists:   Debo Adegbile, NAACP; Marvin Ammori, Free Press/ University of Nebraska-Lincoln College of Law; Nan Aron, Alliance for Justice; Robert Gordon, Yale Law School; and Tom Saenz, MALDEF

My comments in blue.

Pam Karlan

Rather than allowing opening statements, Karlan is asking questions and creating a discussion. AND, questions only from students, not from Professors. Sadly, Professor Ackerman is not in the room for this golden opportunity. However, the panelists still manage to give lengthy answers to the questions that curiously mirror an opening statement.

Robert Gordon

“I miss traditional Marxism.” I feel like breaking out and signing “Those were the Days” from All in the Family or maybe Back in the USSR. He does not miss hectoring domineering, but he misses the fitting of points into overall structure, global capitalism. Miss importance of political inequality translates into political oligarchy, and political oligarchy dominates political decisions, e.g., organization of the Senate. Gives oligarchy extra advantages. Affects structures of the careers.

Pam Karlan

“A kindler, Gentler marxism.” LOL.

Tom Saenz

Reviving privileges or immunities is troublesome because it is limited to citizens. Kinda ironic that a guy with the last name of Saenz is diminishing priviileges or immunities, in light of Justice Thomas’s fantastic dissent in Saenz v. Roe. He also needs to check out Bruce Ackerman’s theory of “citizenship as a practice” so that aliens would be able to qualify for constructive citizenship, and thus receive the privileges or immunities of citizenship.

We still have a discriminatory immigration policy. US only country that assumes that demands for immigrants will be same form every country. Latin American and Asian countries face waiting periods of over a decade, while European countries are favored. We should introduce constitutional norms and values.

Discussing for guest-worker program. Guest worker programs separate workers from their families. IF people have right” (quotes are mine) to live with their families, immigration reform would be different.

Karlan remarked she is sitting in the room where she studied Constitutional Law from Robert Bork, and segues into Judicial Nomination Process. LOL.

Nan Aron

“I’ll be very brief, I hope.” Such a typical progressive academic introduction, lol.

Confirmations are best opportunity to articulate a progressive view of the Constitution.

“With Sotomayor you would have thought it was John Roberts’s hearing.” She was muzzled by the White House, she did not hear about her background, how her experience srelated to the type of Judge she would be, she did not mention the Constitution. Senate Democrats are to blame. They had all opportunities. The White House should have allowed Sotomayor to articulate the liberal vision ad progressive values of the Constitution.

We need:

  1. Progressive candidate to the Supreme Court
  2. Explain how dangerous the Roberts Court has been. Roberts Court has detonated bombs in voting rights, civil rights, dismantling campaign finance rights laws, eroding rights of defendant
  3. We have to mobilize. Last mobilization was for Bork. We need a mobilization for a progressive SCOTUS and Courts of Appeals seat. Vacancy on 2nd circuit. Put a progressive.
  4. If Constitution is to work, we have to stand up for it.

Over last 8 years we saw constitution shredded to bits. Lawyers at OLC wrote memos’s that authorize torture. Obama does not want to touch it. Cheney and Bush, government in exile, doing everything they can to campaign against investigation. People died from torture. We need to press Obama and Holder to expand investigation into not just CIA operatives that carried torture outside Jurisdiction, but “hold lawyers accountable.” Amazing that a group that doesn’t mention the text of the Constitution at any point in this 3 day conference is so afraid of it being “shredded.”


A big public fight in the confirmation process could be a teaching moment. Fights should be in dark terms. Define liberal vs. conservative.


How to divide and conquer the consevatives?


How to divide conservatives? Get people to see that they have a common interest against conservatives. Health care debate, promise of hope of universality by appeal to people who feel that something will be taken and redistributed to less worthy groups. E.g., “blacks, latinos, and immigrants.”

Use divide and conquer movement against those using divide and conquer.

Bottom third of country gets no political representation at all because other side so successful in demonizing it as unworthy.


Academics should write simplified versions of scholarly literature for magazines and mass consumption. Academics see tension, due to the purity and complexity of the work.

If Academics just talk amongst themselves, they are going to lose the battle. Debo is exactly right. I made this exact point my first day. This conference has been incestuous. Academics talking to other academics achieve little. I realize the irony of criticizing the ivory tower while sitting in a law school that resembles a medieval castle, but this point is dead on.


To organize people around media issues, focus on broader issues. Everyone should have access to Internet, media too consolidated, if you don’t like what you see on TV, there is something wrong.


Privileges or immunities deals with citizens. But scholars make up citizens doesn’t mean what it actually means. This is a jab at Ackerman, among others.


“Appalling” that Yale Law School has not hired a single Latina Professor. Oh snap! I’m sitting right next to Dean Post. He didn’t even flinch.

Karlan on Liberalism and the Supreme Court

Why can’t we refer to ourselves as liberals? Why cant we refer to ourselves as on the Left. Why are we calling the Justices swing justices. Why don’t we call them liberals? I’m with you Pam!

Supreme Court is 4 liberals, one conservative, and the four horsemen of the apocalypse. LOL

Sotomayor will be an excellent Swing Justice. Great, another O’Connor.

Debo Adegbile is the Thurgood Marshall of his generation. Lofty praise. He won NAMUDNO

No one on this panel is as far to the left as John Roberts or Clarence Thomas is to the right.


If we had won the 2000 election, we did win the 2000 election. If we would have gotten a different President, the cases would have come out differently. Brennan said 5 votes a theory any day. Karlan is much more politically savvy than the other pointy head academics. I hope Obama stays far away.


Federal courts are currently obstructive to advance civil rights. We do not have the Warren Court. Best bet is to keep them at bey. Senators Whitehouse and Franken did best job by exploring radicalism of conservative court. “Roberts and Alito are trained as ideological – in revolutionary movement.” They are “sleeper cells that are activated” as though they are defenders of conservative values. They are radicals who want to bring about radical transformation of the courts. The Senate shoudl “demonize” these Judges. Focus on Dormant commerce clause and preemption cases.

Primary role of court to defend weak against the strong. Empathy to Republicans is awful thing, but torture is a wonderful thing, and anyone who tortured should get immunity.

Karlan- It is bad to be empathetic and in favor of torture, because then you will hurt yourself. Karlan FTW! She is snappy.

Gordon- Liberal no longer stands for New Deal policies. liberal has come to be a snooty intellectual elitist who looks down on my cultural values.

Saenz– Being a “Wise Latina” may actually make you a better Justice. I knew Sotomayor believes this and many on her side do as well. I don’t agree, but I think it is disingenuous of her to back away from those statements.

The left does not have a reliable test to determine progressiveness of judicial candidate.

The text of the  constitution is at a level of generality that permits us to do a lot. Change how it is interpreted, and how everyone views the values it embodies. But why bother talking about the text if it is so general?

Response to originalism: vast majority of us, families came to this country more recently than the people who wrote it.

Discussion of voting with feet. Immigrants vote with their feet. Immigrants have a sense of what is in the Constitution, and this governs the values of how we should interpret it. This is just as legitimate as what founding fathers believe.

Descendants of founding fathers very small population today.


Tom Saenz, Debo Adegbile, Pam Karlan, Robert Gordon, Marvin Ammori, Nan Aron

Constitution in 2020 Liveblog Panel 7- Mobilization

Panel Seven:
9:30 – 11:15 Roundtable:  Mobilization
Moderator:  William Eskridge, Yale Law School
Panelists:  Addisu Demissie, Organizing for America; Marshall Ganz, Kennedy School of Government, Harvard; Judy Scott, SEIU, Michale Wishnie, Yale

Caroline Frederickson– Executive Director ACS

Thanked members of ACS, Panelists, and Organizers.

Conservatives have hijacked the constitutional process through strict construction and original meaning. It’s good to feel the love. Scholars have shed light on how constitution should be interpreted. Principels and values founders embodied in this document. Significant progress has been made over past 200 years. Still much work to be done.

Caroline Frederickson

Caroline Frederickson

Wiliam Eskridge

Like interpretation, these panels are dynamic. Yuk Yuk Yuk.

Mobilization. Main example- gay rights/gay marriage movement. Shows aspects of constitutional mobilization- huge mistakes, moderate successes. Mobilization in Vermont being done locally, state-wide, and nationally. Mobilization protected against right-wing retribution at Polls. Started with mobilization of small meetings (5-10 ppl).

Olson-Boises Law Suit

Bill Eskridge praising Ted Olson for the Olson-Boises law suit. Olson came out of “conservative closet” to favor SSM. Best thing to do with Olson-Boises law suit. LAMBDA denied intervention in lawsuit.

Eskridge’s strategery- Delay law suit as long as possible, and revoke Prop 8 in 2012. Revoking Prop 8 would moot the lawsuit. If lawsuit proceeds to 9th and “finds” Constitutional Right. CA9 has poor record with SCOTUS. Olson thinks he can get Justice Kennedy’s vote. Eskridge not sure if the movement has Breyer and Ginsburg. If not mooted before 20102, not optimistic SCOTUS will find right.

Winning constitutional arguments is not end-all of social movements. Yale Law School should not fetishize SCOTUS. We should reject it. Best thing to energize LGBT movement and straight allies was Bowers v. Hardwick.

The more gay marriage is talked about, the better it is to talk about. Eskridge has no doubt he is right. SSM Marriage good for the children, for neighbors, for states, good for jobs, good for America.

Older generations set on LGBT issues. Identity tied to traditional understanding of marriage. Progressives ought to understand hat.

Marshall Ganz

Calling, craft, and career with respect to mobilization. Who, how, and with whom, do you do the work of mobilization. Civil rights all about ending racism. Equates civil rights movement to exodus story told during Passover.

Deeper inequality driving racism was inequality of power. African-American’s couldn’t vote, unions out of power. What to do? Some thought you ask people in Washington for some of their power. If change comes from up high, it can be taken away easily, because power inequality still exists. Example, Montogmery bus strike. People had stake, could withdraw their bus fare.

To affect meaningful change, must engage resources of those who have an interest. Need skilled leadership.

While he thought racism was an exception in America, became an example in America.

Keys for mobilization

  1. Translate power into action through narratives
  2. Bringing people together around common interest through relationship building
  3. Structuring organizations
  4. Strategize- transform what you have into what you need
  5. Measurable results

Talking about Obama, politics of hope, change.

Rabbi Hillel. “If I am not for myself, who will be for me. If I am for myself alone, who am I? If not now, when.”

Addisu Demissie

Political director for Organizing for America. It seems Organization for America was formally Obama for America. Is he a community organizer?

Get out the vote director for Obama in Ohio.

Hard for progressives to admit they are in power and to use their leverage of power. Really? Didn’t Obama make his Presidential seal before he was President? Didn’t Nancy Pelosi start measuring the drapes for her Speaker Office in October 2006?

Change made through citizen contact, with neighbors talking to one another. Difference between mobilizing and organizing. Mobilizing- fight you are in. Organizing- fight you are in, fight you will be in the future. He predicts the Left will win on health care. But there is always some issue to bring people in. Organization building will use health care, 2010, energy, etc. Can’t get totally submerged in the fight you are in. Need to consider fight you will be in next.

Organization building tips

  1. Train leaders to take charge of their communities. Goal to train leader in every community in this country.
  2. Permanent structure-Neighborhood team leader-community organizer model. For every group of precincts, a neighborhood team leader (NTL) to organize. That organizer reports to a community organizer that manages neighborhood team leaders. The community organizer linked to higher-ups. Don’t do nitty-gritty, more managerial. Not about any particular issue. It is about empowering them.
  3. Meeting- getting face to face with people. Just like those helpful ACORN tax advisers in Baltimore!
  4. Reporting. Strict, structured reporting system to track everyone from volunteers up to amangers

Need to creates sustainable organization that lasts beyond the current fight. Structure is important, don’t just focus on substance. 2/3 of fight is setting agenda and framing issue. Get excited about small victories.

Judy Scott

Economic Justice. Concentration of wealth, very few peopel who speak for bottom third. What is mobilization structure to make those voices heard? Not just individual rights, but collective rights and collective action.

Labor law has limited concepts of organization to bargaining unit. Look to issues of global unions.

Unions need to be:

  1. Global- mulinational corporations growing at a fast rate.  Nation states incapable of dealing with multinational labor conditions. Need structures to deal with international IP rights, WTO for international trade. Need structure to enforce labors beyond borders.
  2. National level. Change that work campaign. Need to extend to 12 states with much density. Labor movement density was 35% in 1950s to 7% today. This is a threat to Democracy.  Working with farmer unions, consumer leagues, around issue of health care reform. Showing up at town hall meetings. Like this SEIU member who roughed up a Town Hall attendee? Agitate for improvement of American families.

Don’t just think about filing grievances and arbitrations, but focus on organizing in community and mobilizing.

Mike Winshnie

Thanks everyone for giving up right to leisure to come here on Sunday. Apparently the right to leisure is declared in the fundamental declaration of human rights. I suppose I generally waive this right.

Progressives acheive social reform by supporting a particular social movement, and translate movement values to ways courts, legislatures, and agencies can understand. Lawyers are often crucial in this interpreting function.

In a few generations, we will look back at modern immigration law as de jure subjugation, similar to Jim Crow Laws.

There is a hope that “the constitution will jsut stay out of the way” because it hurts more than it helps. So the Constitution in 2020 is should just hide? He’s quoting Saul Alinsky now.

Judy Scott, Marshall Ganz, Bill Eskridge, Mike Wishnie, Addisu Demissie (Left to Right)

Judy Scott, Marshall Ganz, Bill Eskridge, Mike Wishnie, Addisu Demissie (Left to Right)

Posted in ACS, Constitution in 2020, Liveblog. Comments Off on Constitution in 2020 Liveblog Panel 7- Mobilization

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 on Constitution in 2020 Liveblog Panel 6- Localism and Democracy

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 on Constitution in 2020 Liveblog Panel 5- Individual Rights

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.

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