2020 Blog

The Constitution in 2020: The Future of Equality

On April 1st and 2d, The University of Texas School of Law and the American Constitution Society will be hosting a conference on The Future of Equality. This conference is one of a series of academic events connected to the Constitution in 2020 project.

Over the next two weeks speakers at the conference will be posting short essays about their work on Balkinization.

Conference Schedule

Thursday, March 31: Dinner for conference participants

Friday, April 1

Introduction and Welcome

9:00am-9:15am

• Sanford Levinson University of Texas • Reva Siegel, Yale • Jack Balkin, Yale

Panel One: 9:15am-10:45am

Equality and Positive Rights in State Constitutions

• Emily Zackin, Princeton—Positive Rights and State Constitutions (presented by Sanford Levinson, University of Texas) • Michael Paris, CUNY-Staten Island—Framing Equal Opportunity: Law and the Politics of School Finance Reform (presented by Rick Schragger, University of Virginia) • Sanford Levinson, University of Texas, Commentator • Rick Schragger, University of Virginia, Commentator • Frank Cross, University of Texas—Moderator and Commentator

Panel Two 11:00-12:30

Relations between Equality and Liberty—Contemporary and Historical Perspectives

• Kenji Yoshino, New York University—The New Equal Protection, 124 Harv. L. Rev. 747 (2011) (presented by Jack Balkin) • Jack Balkin, Yale—Chapters 11 and 12 from Living Originalism (Harvard University Press forthcoming 2011) (presented by Kenji Yoshino) • Willy Forbath, University of Texas—Moderator and Commentator

12:30-2:00 Lunch

Panel Three 2:00-4:00

Disparate Impact and the Future of Antidiscrimination Law

• Richard Primus, University of Michigan—The Future of Disparate Impact, 108 Michigan L. Rev. 1341 (2010) (presented by Richard Ford) • Reva Siegel, Yale—From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 Yale L.J. (forthcoming 2011) (presented by Richard Primus) • Richard Ford, Stanford—Bias in the Air: Rethinking Employment Discrimination Law (presented by Reva Siegel) • Joey Fishkin, University of Texas—Moderator and Commentator

Panel Four 4:15-6:00

A Conversation on Immigration and Equality

• Linda Bosniak, Rutgers-Camden • Gabriel Chin, Arizona State • Cristina Rodriguez, New York University • Jack Balkin, Yale—Moderator

6:30 Dinner

Saturday, April 2

Panel Five 9:15-10:45

Gender, Sexuality and Equality

• Cary Franklin, University of Texas—The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83 (2010) (presented by Melissa Murray) • Melissa Murray, Berkeley Law—Disestablishing the Family, 119 Yale L. J. 1236 (2010) (co-authored with Alice Ristroph)(presented by Cary Franklin) • Moderator and Commentator: Angela Littwin, University of Texas

Panel Six 11:00-12:30

Religious Equality

• Andrew Koppelman, Northwestern— Religious Neutrality in American Law: An Analysis and Defense (Harvard University Press, forthcoming 2012)(presented by Lawrence Sager) • Doug Laycock, University of Virginia—Commentator • Lawrence Sager, University of Texas—Moderator/Presenter

Lunch 12:30-2:00

Panel Seven 2:00-3:30pm

The Constitutional Politics of Equality

• Justin Driver, University of Texas—Against Consensus History , 89 Tex. L. Rev. __(forthcoming 2011)(presented by Doug Nejaime) • Doug NeJaime, Loyola Los Angeles—Winning through Losing, 96 Iowa L. Rev. 941, (2011)(presented by Justin Driver) • Reva Siegel, Yale—Moderator and commentator

6:30 Dinner

Implicit Bias and the Fourth Amendment

For the Constitution in 2020 conference on The Future of Criminal Justice.

L. Song Richardson

My vision for constitutional law in the area of criminal justice in 2020 relates to race, policing and the Fourth Amendment. I envision a future in which courts acknowledge and take into consideration the complexity of race and its effects on police behavior rather than denying its influence or dividing the police into conscious bigots on the one hand and non-racists on the other. In order to realize this vision, courts must broaden their conception of Fourth Amendment reasonableness to include consideration of the effects of implicit (unconscious) racial biases on police behavior. (For a fuller discussion, see my forthcoming article in the Minnesota Law Review here).

 

Let me begin with a few statistics. In the first nine months of 2009, NYPD officers stopped 450,000 pedestrians. Eighty-four percent of those stopped were Black and Hispanic. Only 16% were White. Yet, the police found contraband (usually drugs) on Whites at higher rates than Blacks. Other cities report similar findings.

Why do officers continue to stop and frisk non-Whites at higher rates than Whites when stops and searches of Whites are often more successful in yielding evidence of criminal activity? One common explanation is bigotry. Another is that the police act rationally when they profile Blacks because Blacks commit more crimes. While these explanations may have some merit, I find both unsatisfying because they overlook the effects of implicit biases on police behavior that can also explain these results.

For over 30 years, researchers in the field of implicit social cognition have consistently found that individuals of all races have implicit racial biases that often conflict with their consciously and genuinely held thoughts and feelings. Yet, these biases can negatively and unintentionally influence behaviors towards and judgments of Blacks in ways that are non-conscious and often uncontrollable. For example, implicit racial biases can cause the threshold for interpreting ambiguous behavior as suspicious to be lower for Blacks than for Whites. A Fourth Amendment legal regime that contends with the effects of implicit racial bias on behavior may more effectively address the racial disparities that exist in the proactive policing context and more successfully protect privacy against arbitrary government intrusion.

Consider the Terry doctrine, which allows officers to stop an individual for questioning and to conduct a limited frisk for weapons based upon their interpretation of ambiguous behavior. In an attempt to protect individuals from unjustified encroachments upon their liberty, the Court crafted a standard that prohibited officers from acting on their “inchoate and unparticularized suspicions or hunches.” Instead, it required officers to have a reasonable suspicion of criminal activity based upon “articulable and specific facts” before conducting a stop and frisk. “Anything less,” the Court cautioned, “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.”

However, the reasonable suspicion test may not perform as intended to protect non-Whites from unjustified encroachments upon their liberty. As a result of implicit biases, officers may unintentionally and non-consciously evaluate ambiguous behaviors engaged in by Blacks as suspicious even as identical behavior by Whites would go unnoticed. This can occur even if an officer harbors no conscious racial animosity and rejects any association between Blacks and criminality. Thus, by allowing officers to act on their interpretation of ambiguous behavior, the Terry doctrine may actually facilitate, rather than ameliorate, behaviors based upon racial hunches, albeit implicit ones.

By the year 2020, courts should broaden their conception of Fourth Amendment reasonableness and take scientific understandings of how race influences behavior seriously in order to realize more effectively the norms of the Fourth Amendment. In the Terry context, this should result in courts acknowledging that the reasonable suspicion test can only operate in a manner that results in officers treating similarly situated Blacks differently that similarly situated Whites. This recognition may necessitate a return to the probable cause standard. While not a panacea, the standard does require officers to have greater confidence in the interpretation of facts they observe and requiring officers to observe behavior that is more unambiguous before seizing individuals will help reduce the effects of implicit bias.

Consideration of the effects of implicit bias on behavior will not provide easy answers to complicated Fourth Amendment questions. Nor will it allow courts to avoid difficult normative choices. However, acknowledging the ways in which race can impact behavior, even in the absence of conscious bias, will allow us to ask the right questions and to avoid unintended consequences.

L. Song Richardson is Associate Professor & Co-Director, Center for Law and Science, DePaul University College of Law. You can reach her at lrichar3 at depaul.edu.

Constitutional Regulation of the Police in 2020

For the Constitution in 2020 conference on The Future of Criminal Justice.

What should constitutional regulation of the police look like in 2020? One way to think about that question is to ask how things have changed since the 1960s, when modern constitutional criminal procedure began. To a surprising degree, criminal procedure today still operates within the framework constructed by the Warren Court: the doctrine mainly consists of elaborations, extensions, limitations, and modifications of Mapp v. Ohio, Miranda v. Arizona, Katz v. United States, and Terry v. Ohio. All of these cases responded to the challenges of the times, as the Court perceived them, and the oldest of the series—Mapp v. Ohio—turns fifty next year. So now is a good time to take stock.

The challenges to which Mapp, Miranda, Katz, and Terry responded had to do with the emergence of modern, professional police forces, and with some particular pathologies to which those organizations seemed prone. American police departments in 1960 were overwhelmingly white and overwhelmingly male, and to many outside observers they looked racist, lawless, insular, and hostile to democratic values. As the decade wore on the demographics of the occupation hardly changed, and the racism, lawless, insularity and hostility appeared, if anything, to worsen. In the rural South the police seemed a vestige of Jim Crow; in inner cities, northern and southern, the police seemed, increasingly, like an army of occupation. Those were the problems that constitutional criminal procedure was designed to address. The Court was trying to bring police departments under the rule of law, to penetrate the insular, politically reactionary culture of American law enforcement, and to protect African-Americans and other marginalized groups against police oppression.

Half a century later, the police are vastly better. They are more diverse, more sophisticated, more tolerant, less insular, less racist, and more committed to the rule of law. Criminal procedure law itself can take credit—although it had some help from affirmative action decrees that opened up police department hiring and promotion, from civilian oversight boards that accustomed the police to accountability, and from the growing political empowerment of African-Americans and other racial minorities. It shouldn’t need pointing out (but it often does) that the original agenda of constitutional criminal procedure is far from completely realized. Lots of what the police do has remained (and much of must remain) discretionary. More disturbingly, the police can still be a flashpoint for interracial conflict, partly because the Court has failed, in some notorious ways, to follow through on its commitment to make law enforcement evenhanded. But it no longer makes sense, as it once may have, to think that from the standpoint of race relations the police sometimes do their best work when they fail to show up.

There has also been a less obvious change. Fifty years the police had a de facto monopoly on crime control and order maintenance, and crime control and order maintenance were pretty much all they wanted to do. So constitutional criminal procedure could, and did, treat policing as a distinct social function carried out by a distinct set of organizations that stuck to its specialty. Today, though, the police share crime fighting and order maintenance duties with a proliferating array of public and private agencies, and the boundaries are blurring between policing and a range of other things—immigration enforcement, probation and parole supervision, mental health policy, family law, and school discipline, for starters. It’s less and less feasible to treat police work as a world unto itself.

The lessons for constitutional criminal procedure are several. First, issues of race in policing remain fraught and pressing. We could use a renewed commitment to that part of the Warren Court’s criminal procedure agenda. Second, though, there’s been enough progress, on that front and others, to make inequality in the provision of policing increasing important. It’s a more and more glaring failure of our constitutional discourse that we lack even the most rudimentary idea of a right, judicially enforceable or not, to minimally adequate protection against private violence. Third, we need ways to think about and to address the blurred boundaries between law enforcement on the one hand and, on the other hand, the growing range of other agencies and governmental functions that pool their resources and their legal powers with the police. That is a large challenge and, unfortunately, one for which existing doctrine offers little help.

David Sklansky is Yosef Osheawich Professor of Law at the University of California at Berkeley, School of Law. You can reach him by e-mail at dsklansky at law.berkeley.edu

The Fourth Amendment in 2020

For the Constitution in 2020 conference on The Future of Criminal Justice.
Over the past 200 years, the Fourth Amendment’s guarantees have been construed largely in the context of what might be called “physical searches”—entry into a house or car, a stop and frisk of a person on the street, or rifling through a person’s private papers. But today, with the introduction of devices that can see through walls and clothes, monitor public thoroughfares twenty-four hours a day, and access millions of records in seconds, police are relying much more heavily on what might be called “virtual searches,” investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away. This technological revolution is well on its way to drastically altering the way police go about looking for evidence of crime. The Supreme Court’s interpretation of the Fourth Amendment has both failed to anticipate this revolution and continued to ignore it.

 

Most importantly, the Court’s caselaw has made clear that, outside of interceptions of communications content, a Fourth Amendment “search” usually occurs only when there is a physical intrusion of some sort into the suspect’s property. That means that as a constitutional matter neither a warrant nor any level of suspicion is needed to justify most virtual searches. The one exception to this rule other that electronic surveillance, announced in Kyllo v. United States, is when a virtual device, like a $10,000 thermal imager, is aimed at the home interior. Even then no search occurs if the device is in “general public use” (binoculars, nightscopes, $2000 thermal imagers?), or spies what an officer could see from a lawful vantage point or detects only contraband. Thus, without worrying about the Fourth Amendment, police can watch all of our out-of-home activities and many of in-home ones, and also obtain any records of our financial, communication, and other daily transactions that are maintained by third parties.
The Court’s treatment of government actions that it says are Fourth Amendment searches has also vastly enhanced government’s ability to use technology to discover information about its subjects. In particular, the Court’s expansion of what it calls the “special needs” exception (which does away with the warrant and probable cause requirements for a wide array of regulatory and group-based searches) has opened the door to profligate use of technological surveillance. As long as search and seizure programs are not designed to detect “ordinary criminal wrongdoing,” they need merely be “reasonable” attempts at dealing with a “significant” law enforcement problem. This formula apparently exempts from traditional Fourth Amendment requirements not only most administrative inspections carried out by non-police but also technologically-enhanced anti-terrorism programs like data mining (assuming data mining is a search in the first place, which it probably isn’t).

A Different Fourth Amendment?

If reform of the Fourth Amendment were thought to be important as a means of responding to technological developments, the most obvious first step would be to conform the definition of search to its lay meaning of looking into, over or through something in order to find somebody or something. This move, which Justice Scalia himself contemplated in Kyllo, would immediately encompass virtual searches within the ambit of the Fourth Amendment’s protections. Camera surveillance, tracking, targeting places or people with any type of device (regardless of whether it is in general public use or contraband-specific), and accessing records via computer (or in any other manner) all involve searches under this definition.

Reform could not stop there, however. Current Fourth Amendment law also usually requires probable cause for a search. If police attempts to watch a person walk down the street, follow a car on the public highway, or peruse court records or utility bills all required probable cause, law enforcement would come to a screeching halt. It may have been to avoid such a disaster that most members of the Court, including many of its liberal members, have been willing to declare that these investigative techniques are immune from constitutional review.

But there is a compromise position, suggested by the Fourth Amendment itself. After all, the text of that amendment only requires that searches and seizures be “reasonable.” It does not require probable cause or any other particular quantum of suspicion.

I have argued elsewhere that the Fourth Amendment’s reasonableness inquiry should adhere to a proportionality principle (Privacy at Risk: The New Government Surveillance and the Fourth Amendment (2007), http://ssrn.com/abstract=1026614). The idea of calibrating the justification for an action by reference to its impact on the affected party permeates most other areas of the legal system. For instance, at the adjudication stage the law assigns increasingly heavier burdens of proof (preponderance, clear and convincing, proof beyond a reasonable doubt) as the consequences of the adjudication grow harsher. Equal protection law is famous for its three tiers of scrutiny depending on the interest involved. The proportionality principle has even found its way into the Supreme Court’s Fourth Amendment caselaw. It provides the best explanation, for example, for why arrests and searches of houses require probable cause, while stops and frisks only require reasonable suspicion. As the Court stated in Terry v. Ohio, the case that established this particular hierarchy, “there can be ‘no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.’” Unfortunately, the Court has applied this principle only haphazardly and, when it does apply it, inconsistently.
A more formal adoption of the proportionality principle would state that, for every government action that implicates the Fourth Amendment, government must demonstrate cause to search—meaning a level of certainty that evidence of wrongdoing will be found—roughly proportionate to the intrusiveness of the search. Given the history of the Fourth Amendment, the baseline rule for application of the proportionality principle would be that searches of houses and similarly intrusive actions require probable cause. But less intrusive searches and seizures could be authorized on something less than probable cause. For instance, the Court is clearly correct in its intuition that police viewing of public activities are generally less intrusive than police entries into houses. Camera surveillance and tracking of public movements, use of binoculars to look through a picture window, or perusal of a record of an individual’s food purchases would not require probable cause under proportionality reasoning.

In contrast to the Supreme Court’s jurisprudence, however, only the most minimal intrusions would be exempt from Fourth Amendment regulation. Thus, while randomly surveying the public streets with a camera might be untouched by the Fourth Amendment, using cameras or tracking devices to target an individual would trigger its guarantees (albeit perhaps only in the sense that an articulable reason for the targeting would be required). In further contrast to the Supreme Court’s approach, proportionality reasoning dictates that virtual searches which are as invasive as entry into the home would be permitted only upon a high degree of suspicion. For instance, if empirical research on lay views is to be believed (see Slobogin, Government Data Mining and the Fourth Amendment, 75 U.Chi. L. Rev. 317 (2008), http://ssrn.com/abstract=1001972) society associates bank and phone records with a high degree of privacy. Thus, contrary to Court precedent, police would have to demonstrate reasonable suspicion or perhaps even probable cause before gaining access to such information.

Exceptions

At least two exceptions to the proportionality principle should be recognized, however. When the purpose of a search is to prevent significant, specific, and imminent danger (think: Jack Bauer), society’s interest in protecting itself is sufficiently strong that the justification normally required by the proportionality principle should be relaxed. And when a search or seizure is of large numbers of people—when, in other words, search and seizure programs are involved—the usual Fourth Amendment paradigm focusing on individualized suspicion does not work well. In Government Dragnets (Law & Contemp. Probs., forthcoming; http://ssrn.com/abstract=1640108), I argue that, unless the dragnet involves a full-scale search of homes or mass arrests, this situation should initially be governed by political process theory. As laid out by Richard Worf, political process theory would permit a group search or seizure if it is authorized by legislation that requires neutral or random selection criteria and avoids targeting groups with insufficient access to the political process.

When these requirements are not met (which has often been the case with the group search and seizure cases decided by the Supreme Court) the proportionality principle should be adapted to group settings. Unless the intrusion occasioned by these blunderbuss intrusions is de minimis, proportionality reasoning would require some concrete justification beyond the type of broad pronouncements about “law enforcement problems” on which the Court usually relies. More specifically, proportionality analysis in the group context could require what might be called “generalized suspicion” (to be contrasted with individualized suspicion). Generalized suspicion can be thought of as a measure of a program’s success or “hit rate,” which under proportionality analysis must match its intrusiveness. For instance, in Edmond v. Indianapolis, a roadblock case, police searches produced evidence of drug crime in 5% of the cars stopped. Whether that potential hit rate would be sufficient to justify the intrusion associated with a roadblock would depend on how that intrusion compares to other police actions, such as arrests, that require probable cause (which might require a hit rate of about 50%), and field investigation stops that require reasonable suspicion (which has been quantified at around 30%).

A requirement of generalized suspicion proportionate to the intrusion visited on individuals in the group would force the government to produce concrete justification for its search and seizure programs. Assessment of hit rates might have to be speculative if a particular type of group search or seizure has never been attempted. But presumably a program instituted in good faith is motivated by the perception that a significant crime problem exists. In the absence of such facts (and assuming the danger exception does not apply) courts applying proportionality analysis would be leery of finding that a group investigation is justified.

This is an extremely brief summary of a book and two articles. I’ll be glad to expand on anything that occasions comment.

Christopher Slobogin is Milton Underwood Professor of Law, Vanderbilt University Law School. You can reach him by e-mail at christopher.slobogin at vanderbilt.edu.

The Constitution in 2020: The Future of Criminal Justice

On October 7th and 8th, 2010, Florida State University Law School and the American Constitution Society will be hosting a conference on The Future of Criminal Justice. This conference is one of a series of academic events connected to the Constitution in 2020 project. Over the next few weeks speakers at the conference will be posting short essays about their work on Balkinization.

Conference Schedule Thursday Evening:

6pm- Keynote Speaker Steve Bright, Southern Center for Human Rights

 

Friday Morning: 8:30am-8:55am- Opening Remarks

• Dean Don Weidner, FSU Law

• Professor Jack Balkin, Yale Law

 

9:00am-10:30am- Panel One: National Security and Liberty

• Chris Slobogin, Vanderbilt Law

• Susan Herman, Brooklyn Law

• John Parry, Lewis & Clark

• Marc Rotenberg, Electronic Privacy Information Center

• Jack Balkin, Yale Law (moderator)

 

10:40am-12:10pm- Panel Two: Crime Control and Equality

• David Sklansky, Cal.-Berkeley

• Song Richardson, DePaul Law

• Darryl Brown, Virginia Law

• Susan Bandes, FSU Law (visitor) and DePaul Law (moderator and panelist)

 

Friday Lunch:

12:15pm-1:15pm

• Remarks/Q & A with Judge Lynn Adelman, E.D. Wisconsin

 

Friday Afternoon:

1:20pm-2:50pm- Panel Three: Citizenship and Community

• Gabriel “Jack” Chin, Arizona Law

• Bernard Harcourt, Chicago Law

• Wayne Logan, FSU Law

• Richard Myers, UNC Law (moderator)

 

3:00pm-4:30pm- Panel Four: Punishment and the Constitution

• Doug Berman, Ohio State Law

• Sharon Dolovich, UCLA Law

• Dan Markel, FSU Law

• Reid Fontaine, FSU Law (moderator)

Conference Video Digest

Over a long weekend in early October, legal enthusiasts from around the country converged on Yale Law School for The Constitution in 2020 Conference. Hosted by the Yale Law chapter of the American Constitution Society, the 2020 Conference brought together top legal scholars, practitioners, and activists with several hundred audience members for in-depth discussions about the future of American constitutional law -- and American law, policy, and politics more broadly. For those who didn’t have the chance to attend, we present full streaming videos – now you can watch everything, from the opening address to closing remarks, with handy summaries and commentaries from members of the 2020 blogging team. (For links to the posts submitted by the professors in advance of the conference, click here.)


Conference Welcome

    Featuring: Dean Robert Post (Yale Law School)

America and the World
    Featuring: Bruce Ackerman (Yale Law School), Muneer Ahmad (Yale Law School), Oona Hathaway (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)
 

Roundtable:  About the Constitution in 2020
    Featuring: Bruce Ackerman (Yale Law School), Jack Balkin (Yale Law School), Robert Post (Yale Law School), Neil Siegel (Duke Law School), and Reva Siegel (Yale Law School)
 

Social Rights
    Featuring: Risa Goluboff (Virginia Law School), Jacob Hacker (Yale University), Ben Sachs (Harvard Law School), and Vicki Schultz (Yale Law School)
 


Constitutional Theory

    Featuring: Jamal Greene (Columbia Law School), Paul Kahn (Yale Law School), David Law (Washington University School of Law), Sophia Lee (University of Pennsylvania Law   School), and Richard Primus (University of Michigan Law School)
 

Individual Rights
    Featuring: Elizabeth Emens (Columbia Law School), Rich Garnett (Notre Dame Law School), Paul Horwitz (University of Alabama School of Law), Dan Kahan (Yale Law School), and Alice Ristroph (Seton Hall University School of Law)
 


Localism and Democracy

    Featuring: Heather Gerken (Yale Law School), Ethan Leib (University of California Hastings School of Law), Judith Resnik (Yale Law School), Rich Schragger (University of Virginia School of Law), Ilya Somin (George Mason University School of Law), and Ernie Young (Duke Law School)
 


Roundtable: Mobilization

    Featuring: Addisu Demissie (Organizing for America), William Eskridge (Yale Law School), Marshall Ganz (Kennedy School of Government, Harvard), Judy Scott (SEIU), and Michael Wishnie (Yale Law School)
 


Roundtable: The Constitution in 2020: Getting There from Here

    Featuring: Debo Adegbile (NAACP), Marvin Ammori (Free Press/ University of Nebraska-Lincoln College of Law), Nan Aron (Alliance for Justice Pam Karlan, Stanford Law School), Robert Gordon (Yale Law School), and Tom Saenz (MALDEF)
  

 *Special thanks to the Brian Pauze and the Yale Law Audio-Visual Staff for taping, editing, and technical support.

Blog Digest - The Professors' Pre-Conference Postings

In advance of the Conference, many of the panelists submitted posts where they staked out their initial positions on a variety of constitutional issues. To get a better sense of the conversation that occurred in the weeks before the Conference, follow the links below:

 

AMERICA AND THE WORLD
 

Muneer Ahmad, Personhood in Citizenship’s Shadow
Aziz Huq, The Transformative Potential of Muslim America
Jenny Martinez, Constitutional Rights as Human Rights?
Jon D. Michaels, Executive Authority in a post-Westphalian World: How Global Trends Influence U.S. Separation of Powers

 

SOCIAL RIGHTS
 

Risa L. Goluboff, Social Rights
Jacob Hacker, The Democratic Case for Tackling Economic Inequality
Benjamin Sachs, Locating Union Rights

 

CONSTITUTIONAL THEORY
 

Jamal Greene, How Constitutional Theory Matters
David S. Law, The Failure, and Future, of Constitutional Theory
Sophia Lee, Administering the Constitution in 2020
Richard Primus, The Necessity and Peril of Ethical History

 

INDIVIDUAL RIGHTS

Elizabeth Emens, Disability’s Force
Richard W. Garnett, Religion and Division
Richard W. Garnett, Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom
Paul Horwitz, The Constitution in 2030
Paul Horwitz, The First Amendment in 2020: An Institutional Perspective
Alice Ristroph, Discrimination, Violence, and the Constitution

 

LOCALISM AND DEMOCRACY

Ethan Leib, Constitutional Conventions:  Getting 20/20 Vision About Them by 2020
Richard Schragger, Federalism All-the-Way-Down
Ilya Somin, The Promise and Peril of Federalism in the 21st Century
Ernie Young, Preserving Democracy’s Laboratories   
 

Panel Recap -- America and the World

The Constitution 2020 Conference opened powerfully with a panel that engaged questions essential to defining a vision of progressive constitutionalism: Who ‘counts’ as American?  And what kind of law ‘counts’ as American?

The panelists, along with their moderator, Bruce Ackerman, tested the boundaries between citizen and non-citizen, and between U.S. and international law, in the context of national security, foreign policy, immigration enforcement, and discrimination against minorities since September 11, 2001.

The panel opened with Aziz Huq (University of Chicago Law School) and Muneer Ahmad (Yale Law School), who tackled issues on citizenship, personhood, and advocacy. Their comments framed an approach to the question of who ‘counts’ as American. Then Jon Michaels (University of California Law School – Los Angeles) and Oona Hathaway (Yale Law School) reflected on the need to reintroduce democracy to determine what kind of law ‘counts’ as American law. Their proposals paid special attention to checking executive power in national security and foreign policy matters.

Video Courtesy of Yale Law School

Who ‘counts’ as American?

Since September 11, 2001, Muslim Americans have had a common encounter with discrimination that has often placed them outside the circle of who ‘counts’ as American. While discrimination can and has alienated Muslims, Aziz Huq proposed that this shared experience also has the power to form the otherwise diverse and fragmented community into a single interest group that can reclaim core constitutional rights, such as free speech, freedom of religion, and privacy.

As credible advocates for constitutional change, Muslim Americans can powerfully advocate to base counter-terrorism operations on trust and cooperation with the Muslim community, rather than on surveillance and suspicion. Huq urged that we open foreign policy decision-making to a diversity of voices, including Muslim Americans, because “without voice, loyalty often erodes.”

Muneer Ahmad then identified the citizen/non-citizen divide as a major barrier to expanding who ‘counts’ as American to communities with immigrant populations. Traditionally, the rights granted to citizens and persons in the Constitution are considered independent sources of rights, but Ahmad argued that the two are in fact tethered together so that “citizenship circumscribes personhood.”

Citizenship exceeds personhood across our legal system. In order to secure protections of personhood for their clients in court, for example, immigrant rights advocates must argue that their clients are citizen-like – hard-working individuals who go to church, don’t have a record, and have the support of family and friends. In other words, lawyers must argue that their clients are super-citizens who represent a form of social rather than constitutional citizenship. However, the rights of personhood will never meet the full level of rights that citizenship provides. Immigrant rights advocates therefore necessarily reinforce the citizen/non-citizen divide and the paradox continues.

How can progressives expand who ‘counts’ as American under our Constitution given the dominance of the citizen/non-citizen divide? We can either expand the ambit of citizenship, Ahmad suggested, or re-imagine citizenship entirely to better match a globalized world where people have multiple loyalties and identities.

What law ‘counts’ as American?

Turning to the sweeping powers of the executive since September 11, 2001, Jon Michaels and Oona Hathaway reflected on what law ought to ‘count’ as American. Jon Michaels noted that the Bush administration bypassed constitutional requirements; it gathered information from corporations about their customers, used foreign interrogators, and engaged in domestic wiretapping, for example.

The problem of unchecked executive power is not specific to the fight against Al Qaeda, however, but rather a result of broader globalization processes where "the law lags behind," Michaels argued. Social, technological, and economic trends in globalization blurred traditional legal boundaries, allowing the Bush administration to aggrandize power and operate military and national security apparatus free of traditional regulation. Michaels concluded that Congress and the courts ought to check executive power in the future through structural change rather than ad hoc regulation.

Oona Hathaway brought the discussion into an international framework, examining America's relationship to other nations through its dual powers of making law and making war.  Hathaway noted that most of U.S. foreign policy is made by the President acting alone, authorized by Congressional authority delegated some forty years earlier. Similarly, under our Constitution, Congress gives the President limited authority to make war, but those limitations have been ignored when expired, reducing Congress' role to paying war bills.

Hathaway argued that progressives should bring congressional oversight and democratic legitimacy back into international law and foreign engagement. Specifically, Hathaway and Bruce Ackerman are working on a proposal that would create a new default rule that makes Congressional authorization for war expire in two years time.

Take a look at the video to learn more about their proposal -- and dig deeper into all of these rich reflections on a progressive vision for constitutional change.

Mobilization Recap: Creating Sustainable Change

To ease you into the weekend, here are some thoughts on the Mobilization Panel from the Constitution in 2020 Conference.  The panel was comprised of a diverse group of practitioners and scholars—it was moderated by Professor Bill Eskridge, Yale Law School, and the panel participants were Marshall Ganz, Harvard Kennedy School of Government; Addisu Demissie, Organizing for America (previously Obama for America); Judy Scott, Service Employees International Union; and Professor Michael Wishnie, Yale Law School.  Since we have the video of the panel (below), I thought I would avoid summarizing each participant’s remarks.  Instead, I would like to point out a few strands to the conversation that are worth reflecting on.

Video courtesy of Yale Law School.

While the participants in the conference’s earlier panels were deeply concerned with issues of constitutional doctrine and legal policy, the Mobilization panelists were more focused on the structure of organizing, the sustainability of change, and the utilization of community resources.  The motivating factor for the organizing seemed to be the representation of the perspectives of minority groups that have been historically neglected, rather than the active creation of support for constitutional principles at the community level.

Judy Scott's comments about the importance of the Labor movement in its ability to represent and to coalesce the bottom third of society were emblematic of this theme.  In discussing the types of structures needed to make a movement successful, Scott emphasized the importance of bridging organizations, such as unions, that can bring people together and bridge diversity on a variety of issues.  Similarly, Marshall Ganz focused on the creation and sustainability of a movement, discussing how a dispossessed community can leverage its resources to gain power (all in the context of his time spent helping organize the Civil Rights movement in Mississippi).  His class at Harvard focuses on organizing centers on five strategies to successful organizing: translating action into narrative; relationship building; creating a space in which to develop ideas; strategizing; and finding measurable results.

In providing these structures for organizing, however, the participants gave insight into a mechanism by which progressive constitutional interpretation can be brought to bear at the community level.  Professor Eskridge's comments most directly addressed how to build popular support for a constitutional movement in the context of same-sex marriage.  He stressed that a successful movement takes a lot of time and effort on the part of many different groups acting at different levels, including the local.  When asked about the tension between impact litigation and long-term mobilization, Professor Eskridge said that progressives "should not fetishize the Supreme court”—meaning that a lot of change happens outside of our highest court.  Marshall Ganz and Mike Wishnie also spoke about specific ways that individual attorneys can help these kinds of movements strengthen and grow, as opposed to engaging in rights-based litigation.

Taking things further, it seems that in some contexts the Constitution can present a real obstacle to progressive change.  The implication was that it can be advantageous for a movement to remain "a-constitutional."  Professor Wishnie was the most blunt, noting that the Constitution is relatively hostile to the Immigrants’ Rights movement, conceding (and giving a nod to Ben Sachs) that the hope in the progressive Immigrants' Rights community is that the Constitution will largely stay out of the way.

My last two observations fall well outside any constitutional discussion.  First, there seemed to be some interesting power dynamics at play between the organizer and the organized.  Marshall Ganz stressed the fact that an organizer “need[s] to engage the resources of those who have an interest” in order to effect real change, and Addisu Demissie noted that Organizing for America focused on indirect influence via citizen interaction and media participation.  It can be unclear, however, where the goals for “grassroots movements” come from—that is, there seems to be a fine line between engaging and organizing the citizenry in support of goals of which they themselves are convinced, and enrolling that citizenry to accomplish the organizer’s own goals.  Where does this line lay?  Can there ever be a truly “democratic” organizing movement?  Of course, we might also ask whether these questions should concern us, or if there's anything to be done about it if they do.

Second, and only mentioned in passing by the panel, is the emerging role of technology and the Internet in organizing.  This seems to be a big part of Organizing for America’s structure, and Judy Scott mentioned that she just hired a new lawyer who would be devoted to exploring ways to harness new media technology to enhance SEIU’s message.  Advances in social and community-based technology are sure to be relevant to organizing's future, but are there other existing technologies that can be adapted to a movement’s needs?  How should organizers structure their web-presence to best recreate and reinforce their physical community online?

I’m sure additional themes stood out to others, so please feel free to post your comments with what you thought was most interesting!
 

Panel Recap - Getting There from Here

The capstone of the conference, Sunday’s “Getting There From Here” panel, sought to take theoretical insights gleaned over the weekend and suggest how they might be put into practice. If most panels called for keener eyes and longer, or deeper, vision, the final panel called for tougher hands. It featured: Tom Saenz, President and General Counsel, Mexican-American Legal Defense and Education Fund; Debo Adegbile, Associate Director of Litigation, NAACP; Bob Gordon, Chancellor Kent Professor of Law and Legal History, Yale Law School; Marvin Ammori, Free Press/ University of Nebraska-Lincoln College of Law; and Nan Aron, President, Alliance for Justice. Pam Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School, deftly shepherded the diverse group. Given that these practice-minded panelists had the last word, however, they were able not just to look forward to the future but back at the weekend’s proceedings.

It was particularly fruitful to have a group of practitioners and practically-minded theorists act as commentators on a weekend’s worth of constitutional action. Prof. Karlan began the panel by announcing, that unlike all the foregoing panels, the presenters would not actually make any presentations, but would instead immediately enter discussion, goaded on by Karlan’s incisive questions. Furthermore, following an intra-panel discussion, the floor would open for questions, but only from students in attendance. In 2020, those questioners will likely by leaders and panelists in their own right. Better start now, Karlan seemed suggest.

These two late alterations in the format exemplified the possibilities of progressive or liberal practice. One of the great challenges for liberal leaders, whether within or without the academy, is to lead in a manner that does not perpetuate the kinds of asymmetries and hierarchies so familiar to leader-led dynamics. Karlan’s announcements acknowledged this challenge. A panel dedicated to embodying a progressive vision in the living constitutional order needed to look and act progressive.

Video courtesy of Yale Law School

Having set the stage for a sharp conversation, Karlan continued in a critical vein. She first asked the panelists to talk about what they thought had been missing from the conference. Most of the answers had a sort of “meat-and-potatoes” vibe, one that would continue through the rest of the panel. Debo Adegbile and Tom Saenz drew attention to two areas of great inequality that they felt had been ignored at the peril of more general progressive goals: educational inequality and immigration policy respectively.  Adegbile argued that a lack of decent educational opportunities could create a voiceless generation. Making a distinction between immigrant rights (protecting those who are already here) and immigration policy, Tom Saenz insisted that we need to incorporate constitutional values into our immigration policy, which still effectively discriminates against non-Europeans and often, in the form of certain guest worker programs, separates families.

Bob Gordon suggested that while important, many of the individual issues broached at the conference would be better understood, and dealt with, if re-incorporated in a more general leftist critique of our political economic system. And Nan Aron called for a renewed commitment to ensuring that the Obama Administration appoint truly liberal judges – the most direct way, she suggested, to propagate liberal constitutional values.

Later in the panel, Pam Karlan suggested that there might be a “rust-belt/sun-belt” distinction between strategic thinking around issues like poverty, on the one hand, and sexier issues like net neutrality on the other. The former issues might require more of the older-style impact litigation and court-fueled politics. Marvin Ammori rejected this view, arguing that new modes of organizing and media outreach were effective and called-for across the board. While Adegbile and Saenz repeatedly recognized the need for new kinds of outreach and media management as accompaniments to older strategies like impact litigation, there were numerous suggestions throughout the two hours that some newer approaches to progressive legal thinking were a bit pie-in-the-sky. In many ways the last panel was a call not to a flashy new future but a re-commitment to older values and methods.

The “Getting There From Here” panel recapitulated the interminably uneasy relationship between theory and practice. Much of the conference, and the slant of many of the excellent essays in The Constitution in 2020, seemed to call for more practice-oriented theorizing. The stress on institutions (including administrative agencies), elections, and the extra-governmental production of social meaning that marks so much progressive constitutional theorizing is indicative of this turn to “practical” theory. In such theory, constitutional litigation and doctrinal disputes can take on secondary status.  The final, manifestly practical panel was not impressed by this turn. Although Ammori and Gordon struck now-familiar notes about the need to work outside the courts, the thrust of the panel was court-centered. Particularly emphatic were Tom Saenz admonitions that progressive lawyers had to play better defense against a right-wing judiciary. That defense, he seemed to suggest, would be mainly the job of practicing lawyers, doing traditional legal work. The end of the weekend left us in a strange position, where practice, from the point of view of theory, looked more and more extra-legal, while practitioners called for a commitment to pushing liberal legal theory in the courts.

What explains this peculiar situation? Earlier in the weekend, at the Constitutional Theory panel, there was much talk about the lingering anxiety among theorists that court-centered change is inherently countermajoritarian, and therefore un-“progressive.” It may be this anxiety that has led so much constitutional theory to turn to “practice” as defined as whatever happens outside the courts. But is “progressive” synonymous with “populist”? And is there anything inherently “practical” about “populist,” as opposed to “elitist” or “countermajoritarian,” strategies for constitutional reform?

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