The Transformative Potential of Muslim America

Crosspost from Balkinization

Ideas do not move our constitutional norms, people do. This much is a lesson of recent scholarship by Bruce Ackerman, Reva Siegel, and Robert Post. New constitutional entitlements like the right to bear arms baptized in 2008, on this account, crest on waves of popular mobilization. Architectonic change to fundamental constitutional structures, familiar from Reconstruction and the New Deal, necessitates multiple political sallies by majorities engorged with populist fire.  

In predicting the shape of constitutionalism to come, therefore, it may be useful to search for emergent social movements with transformative potential. Complementing Robin West’s focus on legislated constitutionalism, resisting Richard Ford’s skepticism about abstract constitutionalism, we might ask: What social movement, so far unrealized, has a potential to pressure entrenched constitutional norms by 2020? 

For some years now, my (non-academic) work has focused on national security issues. Security-related changes to immigration, criminal law, and charitable regulation have, http://books.google.com/books?id=dpPTZ33Rmj4C&pg=PA167&lpg=PA167&dq=aziz...)" target="_blank">in my view, disproportionately hit Muslim Americans. But in New York and LA, traditionally quiescent communities have resisted discriminatory or burdensome policies. In line with what Judith Resnik terms “transnational localism,” subnational (here, civil society) actors challenged governmental monopolies on the definition and operationalizing of “security” (a more elusive concept than generally recognized).

Muslim America is a potent, if latent, social force for change. Cruise the streets of Jackson Heights, Queens, or Divan Avenue, Chicago. You’ll see an ethnically diverse, striving, and (in the Pew survey’s words) “highly assimilated” community. Spend some time in the tea lounges and masjids, you’ll hear ample discontent. In one mosque near my former Brooklyn home, congregants learned that three (!) informants routinely attended prayer services. Equally importantly, you’ll hear vociferous concern about the shutdown of Muslim charities under IEEPA, which has encumbered religious obligations of alms (zakat). One recent decision illustrates how IEEPA both curtails core expressions of religious identity and hinders legal representation to challenge that curtailment. 

Muslim Americans, in consequence, have much to gain from challenging the assumption that it is the federal government alone that speaks for us and monopolizes policy decisions when it comes to national security and related foreign policy. Just as the “sole organ” doctrine in foreign affairs and its cognates limits states and localities, as Professor Resnik explains, so too it (selectively) constrains certain migrant communities who still struggle for voice on the national stage.

Fashioned in then-Senator George Sutherland’s idiosyncratic tract The Internal and External Powers of the National Government, dragooned into law by Justice Sutherland in Curtiss-Wright, the “sole organ” doctrine licenses an executive branch monopoly on foreign affairs. Despite early able critique by David Levitan in Yale Law Journal, the doctrine abides, sustained by political utility as much as originalist fidelity or descriptive acuity.  

Professor Koh argues that the “sole organ” doctrine has taken a drubbing, citing recent Supreme Court rulings. But I am not so sure. For one thing, even if the Supreme Court is eager for Congress to reassert its prerogatives, as Justice Breyer’s Hamdan v. Rumsfeld concurrence illustrates, it is a different question whether Congress will pick up the slack. Despite intermittent evidence that Congress feels voters pressure about military over-exposure in Afghanistan, little suggests legislators sense pressure to rein in the presidency along any other security or foreign-policy metric. 

More than another pressure groups, Muslim Americans in my view are well-positioned to challenge the executive branch’s presumed monopoly on foreign affairs wisdom. Not only do they have much to gain in civil liberties, they have much unique to contribute. As I elaborate below, Muslim American mobilization aimed to establish a new constitutional polyphony in foreign affairs and national security is a win-win proposition.

Three brief examples show this dynamic: Consider first how U.S. policy seeks to influence events in volatile Pakistan. In these efforts, the interaction effects of the large diaspora Pakistani-American community with Pakistan’s culture and politics is largely ignored. But government should be leveraging the considerable influence diasporic communities have on home nations. 

Second, active political engagement with migrant communities here diminishes motivations for more radical forms of political action. Voice, that is, reinforces loyalty. In the Midwest’s Somali American community, some young men recently traveled to fight with the Shabaab, provoking breathless consternation in Congress and elsewhere. Few asked, however, why Somali Americans would feel so excluded from US policy formation that they took such extreme measures. An opportunity to build productive dialogue between Somalia Americans, increasing mitigating influences on that lawless state and building security here, was lost.
 
Third, Muslim Americans could be a vital voice for the rule of law overseas. As judicial regulation and procedural scrutiny of detention operations in Guantánamo and other US sites grows, the US has displaced more and more of its detention operations to other countries. Recently minted regulations endorse this continued outsourcing to Pakistan and other allies. The price of this displacement, however, is further corrosion of the rule of law in these countries.  Displacement thus exacerbates conditions that originally fostered transnational terrorist groups such as al Jihad in Egypt. To date, few have made the connection between the Supreme Court’s insistence on a patina of legitimacy on domestic detention and the growing erosion of legality overseas. Muslim Americans, sensitive to conditions in those countries, can play a crucial warning and advocacy role.  

Not only Muslim Americans but all Americans, in short, have much to gain from challenging the “sole organ” doctrine and contending for a more contentious process of policy formation. I do not know if Muslim Americans will take up this challenge: But fledgling organizations such as Muslim Advocates are promising sparks of change. Their mobilization and increased voice, however strong it proves, can only improve the Constitution in 2020.
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Aziz Huq is Assistant Professor of Law at The University of Chicago Law School. He will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Jenny Martinez (Stanford Law School, "Constitutional Rights as Human Rights?"), and Jon Michaels (UCLA School of Law, "Executive Authority in a post-Westphalian World").
 

Executive Authority in a post-Westphalian World: How Global Trends Influence U.S. Separation of Powers

Crosspost from Balkinization

The rise of Executive power in the post-9/11 era can be attributed to many things.  Chief among them are strident assertions of unfettered Article II powers during times of crisis,[1] the legislative flurry to satisfy the President’s wish list in the aftermath of the terrorist attacks,[2] and the notion that combating al Qaeda requires working on the so-called “dark side” of the law.[3]

At the end of the day, though, what might change the constitutional landscape in terms of Executive authority and separation of powers more than anything else are the dynamic, organic trends toward greater globalization, liberalization of political economies, and technological revolution.  These trends deemphasize national boundaries, enable non-statist transnational connections, and promote markets over bureaucracies – and thus they are often thought to erode state authority and empower non-state actors, including al Qaeda.[4]

Of late, the Executive has itself adapted to these trends and seized upon opportunities created by these movements to aggrandize power vis-à-vis the courts and Congress, patterning many of its national-security initiatives on more fluid and unconventional arrangements.  Its selective harnessing of these fluid arrangements and identities has enabled our military, intelligence, and homeland security officials to operate in the less regulated interstices of the national and international legal grid.  This grid is currently calibrated to the statist, Westphalian system where national governments monopolize the use of force, and conflict is between nation-states and understood in terms of defending clearly defined national boundaries.[5]

So long as the law lags behind novel innovations in organizational and tactical design made possible by globalization, liberalization, and new technologies, the Executive may exercise greater authority than it otherwise would possess.  Indeed, consider the following institutional, personnel, and geographic arrangements:

•    Institutional
      o    Coalition Provisional Authority: a quasi-U.S. entity[6] that had been in charge of key decisions regarding the Iraqi occupation, including disbanding the Iraqi Army and privatizing its state industries;[7] largely insulated from oversight and largely exempt from administrative law protocols[8] (including the Senate’s role in Appointments);[9] and, free to spend Iraqi oil funds and undertake other activities with broad discretion.[10]

•    Personnel
      o    Corporate Facilitation of Military and Counterterrorism Operations: U.S. intelligence officials solicit voluntary cooperation from telecoms, banks, and courier companies, thus bypassing otherwise applicable statutory and constitutional warrant requirements;[11] Defense officials hire contractors and maintain plausible deniability vis-à-vis sensitive operations (e.g., Blackwater assassination plans);[12] and, Defense officials’ use of contractors enlarges American fighting capacity, thus concealing the true scope of military operations (and casualty counts) and avoiding the need to initiate a civilian draft, seek greater international troop commitments, or scale back the engagement.[13]
      o    Foreign Interrogators/Interrogations: detainees brought to third-party nations where coercive techniques are legally employed.[14]

•    Geographic[15]
      o    Domestic Eavesdropping: Intelligence officials depart from prior practice of not engaging in warrantless domestic wiretapping on the ground that, now, wars and loyalties are borderless – and agents on American soil may be facilitating terrorist attacks.[16]

      o    Black Sites: detainees brought to undisclosed locations around the world, without the Executive having to acknowledge their confinement, document their whereabouts, or permit Geneva Convention inspections.[17]     

      o    Guantanamo: detainees held at Guantanamo, ostensibly to keep them beyond the reach of U.S. courts.[18]

 

Despite their varying degrees of success, these seemingly post-Westphalian reconfigurations[19] suggest ways in which the Executive is attempting to conduct national-security policy in less regulated space.  Though some of these practices precede the War on Terror,[20] and some have domestic, regulatory analogues,[21] today’s instantiations run an unprecedentedly wide gamut of novel arrangements and implicate a considerably broad set of legal, normative, and strategic questions.

 
As we think about the Constitution (and public law more generally) in 2020, much attention has focused on whether we should reach beyond our borders to consult and sometimes rely on relevant foreign and international law.[22]  What’s being described here is slightly different.  Here, the issues are how international trends transform or may be used to distort domestic practices and how our laws and doctrines should respond to these transformations and distortions.  That is to say, changes in the way the world works at the international level are having effects on the operation of separation of powers in the United States, with an obvious consequential impact on constitutional values.

In thinking through these issues, we will have to balance domestic versus international legal commitments; strategic versus normative priorities;[23] and, short-term, ad-hoc regulation (that closes gaps that emerge as innovative practices outpace the law [24]) versus structural, comprehensive reform that takes a more holistic approach to the changing world.  Moreover, in thinking through these problems, we might have to reassess our efforts in hastening, resisting, or steering technology gains, globalization, and political-economic liberalization[25] – a project of reassessment that might already be underway in light of growing disillusionment with market-driven governance[26] and growing alarm over the realization of a “National Surveillance State.”[27]

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ENDNOTES

    [1] See, e.g., Legal Authorities Supporting the Activities of the NSA Described by the President, Office of Legal Counsel, U.S. Dep’t of Justice, Jan. 19, 2006, http://justice.gov/opa/whitepaperonnsalegalauthorities.pdf; Memorandum from Jay S. Bybee, Assistant Atty. Gen., Office of Legal Counsel, U.S. Dep’t of Justice, on The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations, to William J. Haynes, II, Gen. Counsel, Dep’t of Def. (Mar. 13, 2002), http://www.usdoj.gov/opa/documents/memorandum03132002.pdf; Memorandum from John C. Yoo, Dep’t Assistant Atty. Gen., Office of Legal Counsel, U.S. Dep’t of Justice, on Authorization for Use of Military Force Against Iraq Resolution of 2002, to Daniel J. Bryant, Assistant Atty. Gen., Office of Legislative Affairs, U.S. Dep’t of Justice (Oct. 21, 2002), http://www.washingtonpost.com/wp-srv/nation/documents/2002_1021_OLC_memo....

    [2] See, e.g., USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272; Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638; Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600; The Foreign Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122. Stat. 2436.

    [3] Interview by Tim Russert with Richard Cheney, “Meet the Press” (Sept. 16, 2001).  See generally JANE MAYER, THE DARK SIDE: THE INSIDE STORY OF HOW THE AMERICAN WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS (2008).

    [4] See, e.g., Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63 OHIO STATE L.J. 649, 667-73 (2002); see also Richard H. Steinberg, Who Is Sovereign? 40 STAN. J INT’L L. 329, 329-30 (2004) (collecting authorities supporting this claim). 

    [5] See, e.g., PHILIP BOBBIT, THE SHIELD OF ACHILLES: WAR, PEACE, AND THE COURSE OF HISTORY 509-15 (2003); Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 702-09 (2004); Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501, 2508-09 (2005); Spiro, supra note 4, at 660-73.

    [6] See L. Elaine Halchin, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities, Cong. Research Servs. Report for Congress, Apr. 29, 2004, at CRS-7-14, http://www.fas.org/man/crs/RL32370.pdf.  Cf. U.S. ex rel. DRC, Inc. v. Custer Battles LLC, 376 F. Supp. 2d 618, 620 (E.D. Va. 2005), rev’d on other grounds, 562 F.3d 295 (4th Cir. 2009), (noting “the essential nature of the CPA is shrouded with ambiguity”).

    [7] See RAJIV CHANDRASEKARAN, IMPERIAL LIFE IN THE EMERALD CITY: INSIDE IRAQ’S GREEN ZONE (2006).
    [8] See Hard Lessons: The Iraq Reconstruction Experience, Office of the Special Inspector General for Iraq Reconstruction, Feb. 2, 2009, http://www.sigir.mil/hardlessons/pdfs/Hard_Lessons_Report.pdf; Oversight of Funds Provided to Iraqi Ministries Through the National Budget Process, Office of the Special Inspector General for Iraq Reconstruction, Report No. 05-004, Jan. 30, 2005, http://www.sigir.mil/reports/pdf/audits/dfi_ministry_report.pdf (noting lack of transparency and insufficient managerial, financial and contractual control).

    [9] See Coalition Provisional Authority Memorandum Number 4, Contract and Grant Procedures Applicable to Vested and Seized Iraqi Property and the Development Fund for Iraq, Aug. 19, 2003, at 19, http://www.iraqcoalition.org/regulations/20030820_CPAMEMO_4_Contract_and... (declaring unavailability of an external appeals process for bid protests); Office of the Inspector General, Coalition Provisional Authority’s Contracting Processes Leading Up To and Including Contract Award, Office of the Inspector General, Coalition Provisional Authority Report No. 04-013, at 2 (2004), http://www.sigir.mil/reports/pdf/audits/cpaig_audit_cpa_contracting_proc... (reporting that the CPA “had not issued standard operating procedures”); Halchin, supra note 6, at Summary and CRS-2 (noting that none of the CPA principals were confirmed by the Senate); id. at CRS-24 (“The CPA Administrator exercises rule-making authority . . . .  Unlike the heads of federal agencies, however, the Administrator apparently has not followed the Administrative Procedure Act.”).

    [10] Halchlin, supra note 6, at CRS-32-33 (“Perhaps this ambiguity allows the [CPA] to perform multiple roles, each with its own chain of command, stakeholders or constituents, funding, and accountability policies and mechanisms. . . .   Possibly, the mix of arrangements allows CPA to operate with greater discretion and more authority, and have access to more resources than if it was solely a federal agency or an arm of the United Nations. . . .  By operating under more than one set of laws, regulations, and policies, CPA possibly could expand the scope and reach of the organization’s authority beyond what it would be otherwise.”); see also Hard Lessons, supra note 8.

    [11] See Jack M. Balkin, The Constitution in the National Surveillance State, THE CONSTITUTION IN 2020, at 179, 203 (Jack M. Balkin & Reva B. Siegel, eds. 2009); Jon D. Michaels, All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 CAL. L. REV. 901, 908-19 (2008); see also Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. CAL. L. REV. 241, 255 (2007); Daniel Solove & Chris Hoofnagle, A Model Regime of Privacy Protection, 2006 U. ILL. L. REV. 357, 359, 364-69.

    [12] See Mark Mazzetti, CIA Sought Blackwater’s Help To Kill Jihadists, N.Y. TIMES, Aug. 20, 2009, at A1.

    [13] See, e.g., Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 WASH. U.L.Q. 1001 (2004); Martha Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy, 46 B.C. L. REV. 989, 1023-24 (2005).

    [14] See Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 106; Dana Priest & Joe Stephens, Long History of Tactics in Overseas Prisons Is Coming to Light, WASH. POST, May 11, 2004, at A1.

    [15] See Raustalia, supra note 5.

    [16] See, e.g., The NSA Program to Detect and Prevent Terrorist Attacks: Myth v. Reality, Office of Public Affairs, U.S. Dep’t of Justice, Jan. 27, 2006, at 3, http://justice.gov/opa/documents/nsa_myth_v_reality.pdf; James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1; see also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2049 (2005) (“The traditional concept of ‘enemy alien’ is inapplicable in this conflict; instead of being affiliated with particular states that are at war with the United States, terrorist enemies are predominantly citizens and residents of friendly states or even the United States. The battlefield lacks a precise geographic location and arguably includes the United States.”).

    [17] See Jane Mayer, The Black Sites, NEW YORKER, Aug. 13, 2007, at 46.

    [18] See, e.g., Brief for the Respondents, Boumediene v. Bush, No. 06-1195 (U.S. Oct. 9, 2007), available at http:// www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-1195_Respondent.pdf; Brief for Respondents, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184), available at http://www.usdoj.gov/osg/briefs/2005/3mer/2mer/2005-0184.mer.aa.pdf; Brief for the Respondents, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696), available at http:// www.usdoj.gov/osg/briefs/2003/3mer/2mer/2003-6996.mer.aa.pdf.

    [19] See, e.g., Paul Schiff Berman, The Globalization of Jurisdiction 151 U. PA. L. REV. 311 (2002); Rosa Ehrenreich Brooks, Failed States, or the State as Failure?, 72 U. CHI. L. REV. 1159 (2005); Laura A. Dickinson, Public Values in a Privatized World, 31 YALE J. INT’L L. 383 (2006); Raustalia, supra note 5.

    [20] See PAUL VERKUIL, OUTSOURCING SOVEREIGNTY 10-13 (2007); Charles Tiefer, The Iraq Debacle, 29 U. Pa. J. Int’l L 1, 29 n. 139 (2007); Leslie Wayne, America’s For-Profit Secret Army, N.Y. TIMES, Oct. 12, 2002, at C1.

    [21] See Jon D. Michaels, Privatization’s Pretensions, 77 U. CHI. L. REV. __ (forthcoming 2010).

    [22] See, e.g., Vicki C. Jackson, Progressive Constitutionalism and Transnational Legal Discourse, in THE CONSTITUTION IN 2020, at 285, 288-93 (Jack M. Balkin & Reva B. Siegel, eds. 2009); Harold Hongju Koh, America and the World, in THE CONSTITUTION IN 2020, at 313, 318-20  (Jack M. Balkin & Reva B. Siegel, eds. 2009).

    [23] See, e.g., David Cole, “Strategies of the Weak”: Thinking Globally and Acting Locally Toward a Progression Vision of the Constitution, in THE CONSTITUTION IN 2020, at 297, 298 (Jack M. Balkin & Reva B. Siegel, eds. 2009).

    [24] For extensions of criminal liability to military contractors overseas, see John Warner National Defense Authorization Act for FY 2007, §552, P.L. 109-364, 120 Stat, 2083, 2217 (2006) (amending 10 U.S.C. §802(a)(1)); Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. §§ 3261-67.  For extensions in the reach of habeas, see Boumediene v. Bush, 128 S. Ct. 2229, 2259-62 (2008).

    [25] See Steinberg, supra note 4, at 334-39 (describing ways in which powerful states harness global trends to enhance their own authority).

    [26] See, e.g., VERKUIL,  supra note 20; see also Sundeep Tucker & Jamil Anderlini, Economic Leaders Call for Tighter Rules in Global Financial System, FIN. TIMES, Sept. 29, 2008, at 1.

     [27] Balkin, supra note 11; Jack M. Balkin, The Constitution in the National Surveillance State, 93 MINN. L. REV. 1 (2008); Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489 (2006).
 

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Jon D. Michaels is Acting Professor of Law at UCLA School Law. He will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Aziz Huq (University of Chicago Law School, "The Transformative Potential of Muslim America"), and Jenny Martinez (Stanford Law School, "Constitutional Rights as Human Rights?").

Constitutional Rights as Human Rights?

Crosspost from Balkinization

A decade ago, lawyers in the United States who worked on cases involving mistreatment of prisoners might have talked about those cases as involving “police brutality.” The lawyers would have described them as falling under the rubric of constitutional litigation involving “civil rights” and “civil liberties.” Today, those same lawyers might describe the same mistreatment of prisoners as “torture” and a violation of “human rights.”

Does the difference in terminology matter, or is this merely a reflection of a “trendy” but superficial globalization? The shift towards the use and consideration of international human rights law by domestic advocacy groups in the United States is a fairly recent phenomenon (though one with historical precursors). As the ACLU’s website explains:

“In 2004, the ACLU created a Human Rights Program (HRP) specifically dedicated to holding the U.S. government accountable to universal human rights principles in addition to rights guaranteed by the U.S. Constitution. HRP is part of a reemerging movement of U.S. based organizations that uses the international human rights framework in domestic rights advocacy.”

Are American constitutional lawyers talking about international human rights the legal equivalent of a pretentious francophilic suburbanite air kissing her friends and declaring the latest sweater at Target to be “très chic”? Is reference to international human rights law a useful strategy for progressive constitutional advocates, or does it simply invite criticism and attack on the grounds that dangerous and undemocratic “foreign” influences are being illegitimately injected into our legal system? Am I calling in the black helicopters here?

Accuse me of having drunk too much of the international human rights Kool-Aid if you wish, but I believe that thoughtful engagement with the broader international human rights movement by progressive constitutional advocates is good for America and good for the world. Why?

The language of international human rights has become a dominant global discourse. There are well-known criticisms of this discourse, to be sure, but the language of human rights has exerted a powerful influence on the way that people around the globe think and talk about issues of fundamental importance to the way people live their lives – from their ability to speak freely, participate in government, practice religion, shape their families and other social connections, engage with government and civil society on terms of equality, achieve the minimum conditions of material prosperity necessary for a life of dignity – water, food, shelter, medical care, education. We can’t participate in this global conversation if we don’t speak the same language as progressive advocates in other countries.

International human rights law addresses many of the same issues and concerns as U.S. constitutional law, though there are of course quite important differences between the two bodies of law. Most obviously, international law embraces a broader vision of rights including not only civil and political rights, but also economic and social rights.  In this respect, the global human rights regime echoes the framework put forth by Franklin Roosevelt in his “Four Freedoms Speech” in 1941 – freedom from want, freedom from fear, freedom of speech and expression, freedom of religion.  The drafting of important international human rights instruments in the aftermath of World War II was heavily influenced by these ideas.  Roosevelt’s concern for security – freedom from fear – as a basic human need also resonates today in attempts to balance individual liberty with the need for protection against violence, either by states or non-state actors. In the international legal order, however, freedom from fear finds its institutional home in the collective security framework of the U.N. Charter rather than in human rights law; and the tension between security and rights is no less evident in international law than national legal systems. Understanding security as a human rights issue, however, is vital to confronting many of the challenges America will face in the coming decades.

International human rights law differs from U.S. constitutional law in other important ways as well. It emphasizes personhood over citizenship as a foundation for rights (though of course, many parts of the Constitution speak of persons and people, not citizens). Its focus on human dignity finds echoes in many post World War II constitutions, but not so explicitly in the text of our own Constitution. It operates within a different institutional framework, in which litigation is often less important than documenting and publicizing abuses; raising awareness of issues; generating political pressure; lobbying and diplomacy.

Far from making international human rights law irrelevant to a progressive constitutional vision, these differences in perspective and strategy can be quite useful in rethinking a way forward in the coming decades. As Rachel Moran and David Cole, among others, discuss in their contributions to the Constitution in 2020, even progressive theories of constitutional law that place great weight on citizenship run the risk of undermining the basic dignity afforded to non-citizens.  Many of the essays in the volume address issues of economic and social inequality and inadequacy. And many address the idea of the Constitution – and constitutional rights – outside the courts.  International human rights law speaks to all of these concerns.

The United States has long been a leader in international human rights. Core international instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are modeled on rights established and developed in U.S. constitutional law. Our nation has been a powerful advocate for human rights in its diplomacy and in important international fora.

Today, as many have pointed out, the United States role as a global human rights leader is imperiled. Why? Recent policies of the United States government, especially detention and interrogation in connection with the “war on terror”, have involved significant and very high-profile human rights violations. Members of the Bush Administration openly defended practices that constitute torture. In other areas of individual rights, the U.S. also does not compare favorably with other developed democracies. Death penalty? Gays in the military? Universal health care? Decent primary education? To be sure, in some areas such as free speech, the U.S. has adopted standards that are more protective of individual rights than other nations. But the United States faces serious challenges in our claims of preeminent leadership in the human rights field.  

When our Supreme Court disses foreign and international courts, the judges on those courts become less likely to care what the U.S. Supreme Court thinks. As several recent articles have pointed out, constitutional courts around the world are increasingly likely to cite the European Court of Human Rights or the Inter-American Court of Human Rights rather than the U.S. Supreme Court. As Vicki Jackson points out in her essay, when we act as if we have nothing to learn from the rest of the world, we run the risk of being left out of, and thereby unable to contribute to, the development of, a global body of law that is likely to have an important impact on U.S. interests in decades to come.

More importantly, when U.S. behavior evinces a double-standard – acting as if the rules of international human rights law apply to other countries but not to us – we increase the likelihood that other countries will claim that they, too, are not bound by these allegedly universal principles.

Like various contributors to the Constitution in 2020 volume -- including Harold Koh, David Cole, Vicki Jackson, Judith Resnik and others -- I believe the United States has a key role to play in shaping the world outside our borders. 

We will be a stronger, wealthier, and safer country in 2020 if other countries respect human rights. 

Moreover, U.S. constitutional law may well benefit from consideration of the way that similar issues are conceptualized and resolved in international human rights law. Even if we do not always cite foreign or international sources in our briefs, it is useful for progressive advocates to know something about how our counterparts in other countries conceptualize an issue.  Maybe even talk with those counterparts. Just as advocates for the abolition of slavery in the nineteenth century drew strength from transnational networks of religious and civil society groups, progressive advocates in the U.S. today may strengthen their efforts by building bridges to those advocating on similar issues in other nations.  (And a note to anyone who came upon this blog posting after googling “black helicopters”:  I’m not talking about giving up sovereignty, or being bound by the views of foreigners – I’m talking about respectfully considering the wise and considered views of others before making our own minds up.)

The United States does not and cannot exist in isolation from the rest of the world, and any vision for American constitutional law in the coming decades must recognize this fact – not incidentally, not as an afterthought, but as a fundamental part of understanding the nature of our society, our economy, and our government. 
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Jenny S. Martinez is Professor of Law and Justin M. Roach, Jr. Faculty Scholar at Stanford Law School. She will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Aziz Huq (University of Chicago Law School, "The Transformative Potential of Muslim America"), and Jon Michaels (University of California Law School-Los Angeles, "Executive Authority in a post-Westphalian World").

Locating Union Rights

Crosspost from Balkinization

The labor movement has long pined for the constitution, but the story of constitutional protection for workers’ collective rights is one of disappointment. The peak moments of constitutional intervention into union activity have been moments of hostility: most famously, early 20th Century courts invalidated scores of statutes that aimed to insulate workers’ collective action from employer retributions. When workers sought affirmative constitutional protection for their collective activities, the reception has been lukewarm at best.

With this history in mind, I join Richard Ford in the view that, when it comes to workers’ ability to engage in collective action to improve their lives, the Constitution is not the most likely source of progress for the 21st century. I also join Ford in thinking that progress for workers in the 21st Century, just as in the 20th, will depend on political and legislative action, and that what we need the constitution to do, in the main, is not to interfere. 

Today, substantive due process is no longer an impediment to workers’ collective activity, and the Court long ago found room in the Commerce Clause for federal regulation protecting unions. One major contemporary impediment to advancing workers’ collective rights, however, has constitutional roots: the preemption of state and local law. (There may well be other constitutional hurdles in the months and years ahead. The possibility that employer speech rights will be implicated by amendments to the Employee Free Choice Act, and that non-delegation arguments will be made against the proposed interest arbitration provisions of that bill, are two of the more obvious possibilities.) 

Preemption in the labor context is robust: any state or local law that “arguably” touches on a matter governed by the National Labor Relations Act is invalid. Attempting to find room within the very narrow exceptions to this doctrine, states, counties and cities have made modest attempts to modernize the rules of union organizing. Nearly all of these efforts have been invalidated on preemption grounds.

More important than the state and local laws that have been struck down, however, are those never attempted.  Given the mismatch between the contemporary organization of the economy and the contours of our federal labor law, the possibility for – and the call for – experimentation is obvious. How about allowing “minority” unions which bargain solely for their members?  How about mandating labor-management committees in all workplaces of a certain size? How about, in the name of giving workers not only a “free” but an informed choice on the union question, allowing unions and management to negotiate collective bargaining agreements prior to the organizing campaign? What about banning the permanent replacement of striking workers? Real experimentation of this sort is flatly prohibited by preemption rules, so local governments don’t even try. But this kind of experimentation could yield significant results and teach us a great deal about the implications of different courses for reform. 

Opening up the possibility for state and local experimentation in labor law makes sense for a set of reasons independent of the particular impact that reforms would have on workers’ collective rights – including the possibility that experimentation would point us toward a more tailored and context-sensitive legal regime that better advances the interests of both employers and employees. I do not have room to discuss these reasons here. With respect to the collective rights of workers – the relevant topic for this forum – several observations are important.  Most obviously, with less federal preemption, states and localities would be free to move in any number of directions. Some would legislate to expand protections for workers’ collective activity, others would attempt to restrict that activity. Common law claims would also be back in play. Here, unionism could be attacked (on the grounds, for example, that it constituted tortious interference with contract) or defended (employees discharged for attempting to organize could sue for wrongful discharge on the ground that the terminations were in contravention of public policy).

As a practical matter, the severe limitations of the federal regime (probably even a post-Employee Free Choice Act regime) mean that it would be much easier for states to make things better than worse. In many states, rates of unionization are so low that even an outright ban would not have a terribly large effect. 

Nonetheless, defining and then designing an optimal preemption regime will require careful attention. If we intend the regime to facilitate experimentation while also ensuring that some basic protections remain in place for all employees, federal law will need both to allow for state innovation and to establish a floor – or baseline – of collective rights. The Constitution could fulfill this role: for example, the associational rights contained in the First Amendment might be read as precluding states and localities from simply banning unionization and related forms of collective action. But a new express preemption provision in the federal statute itself is the more likely, and better, bet.
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Benjamin Sachs is Assistant Professor of Law at Harvard Law School. He will be appearing on Saturday's "Social Rights" panel with Risa Goluboff (University of Virginia School of Law, "Social Rights") and Jacob Hacker (Yale Law School, "The Democratic Case for Tackling Economic Inequality").

Social Rights

Crosspost from Balkinization

For the past several weeks, I have been puzzling over the nature of the rights that my panel will address at The Constitution in 2020 conference. The panel is entitled “Social Rights”—which echoes the section of the book that I assume we are to discuss. My first instinct was that the panel would be populated with those who have thought a good deal about race, race relations, and racial equality. To my surprise, however, my fellow panelists are people who have thought a good deal about economic issues, labor organizing, and social insurance.  To me, these topics—which are indeed largely the concerns of the “Social Rights and Legislative Constitutionalism” chapters of the book—would more likely come under the rubric of “economic rights.”

My puzzling, then, has largely been about terminology. Two distinct origins of “social rights” come to mind. The first comes from 19th-century American history. The common delineation of rights into the categories “civil, political, and social” in the Reconstruction era is a frequently defining principle not only of that era but of the Jim Crow era that followed. Within that tripartite conception of rights, civil rights meant those commonly protected by the common law: rights to contract, hold property, and protect one’s property in a court of law. Political rights concerned the relationship of a person to his or her government, largely involving voting but also at times jury service. Social rights, finally, referred to rights to interact in the ordinary settings of social life, to choose one’s place in a restaurant, a neighborhood, a school.

Protection of African American rights in the wake of the Civil War and Reconstruction generally waned as one descended the ladder from civil to political to social rights. Civil rights received the earliest and most vigorous (albeit still inadequate) protection. Political rights faced greater contestation, and greater evisceration, but still found some basis in the Constitution. Social rights were the runt of the litter. As the Supreme Court made clear in its infamous decision in Plessy v. Ferguson, social rights were beyond constitutional redress. Indeed, some would have said that the essence of a social right was precisely its inability to be remedied at law. The understanding of the time was that labeling the right to sit in a particular railroad car a social right removed it from the realm of enforceability.

These labels were, of course, always fuzzy, slippery, and contestable. And they changed over time. In the 1930s, civil rights became associated closely with labor rights and rights to economic security. In the 1940s, such rights seemed constitutionally salient and possibly attainable. Social rights, however—like the right to integration—remained largely beyond the pale. Once rights that had been thought of as social rights began to gain traction in courts and legislatures, the nomenclature changed. No longer did we speak of “social rights.” They somehow became transformed, along with newly enforced political rights, into a unified category of “civil rights.” It would be too simple to say that “civil rights” encompasses those rights that are generally viewed as enforceable. But it does seem fair to observe that once social rights became protectable, they also ceased in important ways to be understood as social rights.

My second association with the term “social rights” comes from the international human rights context. There is a robust and growing literature on the relationship between American ideas about rights and international ideas about rights, between “civil rights” at home and “human rights” abroad. Much of this literature emphasizes how stingy the American conception of rights is. In response, scholars and activists have sought to expand American conceptions of rights by integrating broader understandings of international human rights into the domestic context.

This origins story refers to the kinds of “social rights” included in the International Covenant on Economic, Social and Cultural Rights—rights to work, housing, health care, social insurance, education, and the like. In the international human rights context, “economic, social and cultural rights” or “ESC rights” stand in sharp contrast to “civil and political rights.” These two categories of rights each has its own international covenant, its own monitoring committees, and its own orbit. Moreover, each has its own distinctive political salience. Although the United States has ratified the International Covenant on Civil and Political Rights (with exceptions, of course), it has never ratified the International Covenant on Economic, Social, and Cultural Rights. Indeed, the existence of the two conventions was a product of differing international opinions about the desirability and enforceability of economic, social, and cultural rights.

What has all this to do with The Constitution in 2020? A lot, it seems to me. A major theme of the chapters in the “Social Rights and Legislative Adjudication” section of the volume is the judicial unenforceability of “social rights.” With some minor exceptions, the authors of these chapters have largely given up the possibility of constitutionally based, judicially enforced rights to work, housing, health care, social insurance, and education. Some still retain a shred of hope for judicial involvement in the provision of such goods, others despair that such time has come and gone, and others affirmatively seek legislative alternatives. But overall, the view that these rights are consigned to the political branches is rather overwhelming.

On one level, I was surprised by this surrender. The Constitution in 2020 is an ambitious volume, reimagining a progressive Constitution for the future. Whatever the relative merits of legislative versus adjudicative constitutionalism, one might expect an aspirational, progressive project to include a more robust commitment to some form of constitutionally enforceable economic rights.

On another level, however, I was not surprised.  The section of the book and the title of my panel—with its nomenclature of “social rights”—already tells us that these rights will be different.  Whatever the origins of “social rights” they share one fundamental characteristic: they are unenforceable. Perhaps “social rights” sounds more palatable than the still-Communist-inflected “economic rights.” Perhaps it sounds more malleable and open to debate than “positive rights.” I imagine there are good reasons to use the term. Even so, I cannot but conclude that any attempt to provide judicially enforceable rights to the kinds of goods encompassed by the term will face as their first and most enduring obstacle the term itself.
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Risa L. Goluboff is Caddell & Chapman Professor of Law and Professor of History at The University of Virginia School of Law. She will be appearing on Saturday's "Social Rights" panel with Jacob Hacker (Yale University, "The Democratic Case for Tackling Economic Inequality") and Benjamin Sachs (Harvard Law School, "Locating Union Rights").

The Democratic Case for Tackling Economic Inequality

Crosspost from Balkinization

I share the assessment of the eminent legal scholars writing in The Constitution in 2020 that constitutional law and the judiciary offer limited promise as means of remedying the economic inequality and insecurity that are so much a part of contemporary America. But it will not do, I think, to end the assessment there. In the fraught history of social rights that William Forbath tells, there is also a larger moral about the kinds of appeals that such a movement must make if it is to succeed. The moral is that these appeals have to be grounded in an articulated vision of citizenship that makes clear why widespread economic inequality and insecurity is so starkly at odds with political equality.

This a deeply American way of approaching the problem—far more so than the idea of positive rights—and it has a long and distinguished lineage in democratic thought. Indeed, for centuries, the dominant assessment of the problem of economic distribution in a democracy saw the concentration of property and power at the top of the economic pyramid as dangerous to democracy precisely because it raised the prospect of a wealthy oligarchy corrupting political institutions.

During the Founding period, the concern that the wealthy would gain undue influence coexisted with the well-documented worries about the tyranny of the propertyless majority. The Founders saw the new American republic as marked by a highly favorable starting point: a distribution of property much broader than that found in the class-bound Old World. And they were convinced that preservation of this broad distribution was not just good in itself but essential to the institutional functioning of democracy. To be sure, they feared challenges to private property from below, but they also feared the rise of an aristocracy, which they believed just as fatal to an independent democratic republic.

New life was breathed into this perspective during the Jacksonian era (“the rich and powerful too often bend the acts of government to their selfish purposes” remain the most remembered words of Jackson veto of the national bank). Yet it rose to its greatest prominence during the Progressive Era. Progressives were alarmed about the growing concentration of wealth and income and the increasingly evident social costs of industrialization. What worried them most, however, was the distortion of politics by private economic power, the translation of economic inequality into political inequality, which in turn reinforced economic inequality. Vast excesses of wealth meant vast excesses of power, a reality directly at odds with the promise of political equality.

Running as a third-party candidate in 1912, Theodore Roosevelt summed up the critique in a famous broadside against “special interests”:

The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man’s making shall be the servant and the not the master of the man who made it. The citizens of the United States must effectively control the mighty commercial forces which they themselves have brought into being….The absence of effective state, and, especially, national restraint upon unfair money getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power.

The next Roosevelt in the Oval Office, facing down the greatest economic crisis the nation had ever seen, put the point even more sharply:

For too many of us the political equality we once had was meaningless in the face of economic inequality. A small group had concentrated in their own hands an almost complete control over other people’s property; other people’s money; other people’s labor—other people’s lives. For too many of us life was no longer free; liberty no longer real; men could no longer follow the pursuit of happiness.

Against economic tyranny such as this, the American citizen could appeal only to the organized power of government. The collapse of 1929 showed up the despotism for what it was. The election of 1932 was the people’s mandate to end it. Under that mandate it is being ended.

The Progressive critique was rooted in the classical republican view, but also gained power from the rise of legal realism, as Cass Sunstein and others have noted. Legal realism insisted, rightly, that markets are inevitably shaped and channeled by political forces, dependent on the rules that are set up and enforced by those who control the coercive power of the state. And the legal realists also rightly argued that walling markets off completely from redistributive and regulatory demands required at least as strenuous an exercise of government power as intervening in them. Laissez-faire is a political choice, one with distinct and sometimes unpleasant consequences, and one that requires a great deal of government intervention to arise and survive.

Lest this critique be seen as deeply radical in spirit, it is worth quoting a little-noticed passage in Adam Smith’s 1776 The Wealth of Nations, now viewed as the bible of limited-government free-market economics. “Wherever there is great property,” Smith wrote, “there is great inequality. Civil government, so far as it is instituted for the security of property, is in reality, instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.”  A clearer statement of the legal-realist view of a century and a half later would be hard to find.

The fact that markets are constructed through public policies and shaped by democratic politics—and therefore that they could be reshaped to produce better outcomes—was a central observation of progressive reformers in the early twentieth century. It should also be a central argument of today’s progressives. So it is important to understand what it means and does not mean. It does not mean that democratic politics always produces well-functioning markets, or that government intervention is always justified or desirable. Rather, it is a more fundamental point. For good or ill, democratic politics makes markets. The debate over good or bad economic policies should not be over whether government is involved, for it always is. The debate should be over whether it is involved in a way conductive to a good society.

For the Progressives, the answer to that question in the early twentieth century was no, as it should be for progressives today. Policies passed in the name of free markets and justified with reference to the sanctity of private property had the effect of creating markets that were mainly in the interests of a narrow economic elite. Efforts to address these inequities were blocked in legislatures highly attentive to business concerns. Where laws promoting social reform were passed, they were thrown out by the courts. Greater economic inequality led to greater political inequality, which in turn led to government policies that reflected the interests of those at the top, worsening or at least hardening class divisions. Swamped by the tides of inequality and insecurity, democracy was giving way to oligarchy—the very concern that the recent dramatic growth in inequality and our present economic crisis have cast in stark relief.

The implication, hopefully obvious by now, is that efforts to reduce inequality can be justified not just on egalitarian grounds, but also on democratic grounds. As the political scientist Sidney Verba has written, democracy is based on the ideal of equal potential consideration of every citizen’s interests. In theory, this ideal is compatible with vast inequalities in other spheres of social life. Even the poorest citizen has the formal right to vote, after all. The problems arise when large and growing resource inequalities translate into substantial, cumulative, and self-reinforcing inequalities of political power. Sadly,  these sorts of political inequalities have become increasingly apparent in American democratic practice.

This is not the place to lay out all the reasons for my concerns. Instead, I will merely refer readers to the work of the American Political Science Association’s Task Force on Inequality and American Democracy, of which I was part. The Task Force considered the effects of growing economic inequality on democratic practice from a variety of perspectives and drawing on a huge range of cutting-edge research. Its conclusion was that growing inequality did indeed threaten political equality in the United States:

Generations of Americans have worked to equalize citizen voice across lines of income, race, and gender. Today, however, the voices of American citizens are raised and heard unequally. The privileged participate more than others and are increasingly well organized to press their demands on government. Public officials, in turn, are much more responsive to the privileged than to average citizens and the least affluent. Citizens with lower or moderate incomes speak with a whisper that is lost on the ears of inattentive government officials, while the advantaged roar with a clarity and consistency that policy-makers readily hear and routinely follow.

What we have, in short, is a classic story of cumulative advantages—people who have more are being heard more by political leaders, and what government does reflects that. The political scientists Larry Bartels and Martin Gilens have found, for instance, that the votes of elected representatives and the direction of public policy are both vastly more responsive to the opinions of high-income citizens (as measured by surveys) than they are to the opinions of Americans of more modest means.

In sum, we should challenge the stark economic disparities of our day not just because they challenge our moral sensibilities, but because they pose a direct threat to political equality. And we should also challenge them because, contrary to the anti-government rhetoric of the last generation, public measures to expand economic equality and security can materially improve the quality of democratic citizenship. Indeed, as the Task Force on Inequality and American Democracy reports, some of the most vibrant examples of twentieth-century American public policy—the GI Bill, support for collective bargaining between management and unions,  Social Security—were successful not just in reducing economic inequality, but also in empowering citizens. By providing Americans across the income spectrum with resources, skills, and motives for democratic citizenship, each of these policies substantially evened out disparities of participation and influence in American politics, helping to reinforce the broad-based character of postwar prosperity.

We would do well to embrace this goal again today.
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Jacob Hacker
is the Stanley B. Resor Professor of Political Science at Yale University and a Resident Fellow at the Institution for Social and Policy Studies. He will be appearing on Saturday's "Social Rights" panel with Risa Goluboff (University of Virginia School of Law, "Social Rights") and Benjamin Sachs (Harvard Law School, "Locating Union Rights").

Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom

Crosspost from Balkinization

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea.  Here it is:  Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities.  The Jacobins were wrong.  In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

The contributions to the volume dealing with politics, democracy, and expression – in particular, the essays written by Robert Post and Yochai Benkler – are sensitive to the structures through which we participate in politics and engage in protected, democracy-enhancing speech.  They are attentive, in other words, to the infrastructure that is required for the exercise and maintenance of cherished freedoms. 

Well, like the freedom of speech, religious freedom has and requires an infrastructure.  Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience.  The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them.  The values and goods that the First Amendment’s Religion Clauses are today understood to embody and protect—and, we can usefully refer to this cluster of goods and values as “religious freedom”—are well served by a civil-society landscape that is thick with religious institutions and associations, and by legal rules that acknowledge and capture their importance.  These institutions contribute to—they do not only benefit from, and they are not only protected by—the reality of religious freedom under law.

The theories and doctrines we use to understand, apply and enforce the First Amendment’s religious-freedom provisions should reflect and respect this fact.  They should not be constructed solely to deal with the problems that were the focus of the thoughtful essays on religious liberty contributed by Noah Feldman and Bill Marshall, namely, the task of identifying the bounds of permissible religion-regarding spending or expression by government.  Religious liberty, fully understood, involves not only the immunities of believers but also what was once called “the freedom of the church.”  And, as Feldman and Marshall explain, the separation of church and state involves legal arrangements and constitutional constraints whose point is not so much to artificially exclude religious faith from our civil and political lives as to respect religious institutions’ independence and autonomy.

In my view, if we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Chip Lupu and Bob Tuttle once put it, whether “religious entities occupy a distinctive place in our constitutional order.”  I believe they do, and should.  Today, though, American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences, and practices.  The distinctive place, role, and freedoms of groups, associations, and institutions are often overlooked.  This pattern is consistent with the widespread assumption that, because the individual religious conscience is and must be free, religion itself is entirely private.  However, an understanding of religious faith, and religious freedom, that stops with the liberty of conscience, and neglects institutions and communities, will be incomplete.  And, so will the legal arrangements that such an understanding produces.

Indeed, it could be that the Supreme Court’s Religion Clauses doctrine is famously confused and confusing, not because religion is inherently “divisive,” not because scholars disagree about the content and relevance of the First Amendment’s original meaning, and not because that doctrine is the product of changing groups of judges, appointed by Presidents of different parties, with a range of values and commitments.  Instead, it could be that our constitutional doctrine and our thinking about religious freedom under law do not reflect, capture and translate very well the importance of particular institutions in the constitutional order and to the values that the First Amendment should serve.

Now, how does the infrastructure of religious freedom work?  How, exactly, do churches (and the like) shore up (and not just find shelter within) the freedom of religion?  It is clearly not by supplanting the freedom of the individual religious conscience as the ultimate beneficiary of religious freedom under law.  Quite the contrary.  As I have spelled out in more detail elsewhere, the existence and independence of religious institutions long served, and is still needed today, as – in John Courtney Murray’s words – the “social armature to the sacred order,” within which the individual human person could be “secure in all the freedoms that his sacredness demands.”

Of course, the days are long gone – and 2020 will not bring them back – when we could speak of the Church as the chief rival to, check upon and sometimes close partner with the State.  Today, in our religious-freedom doctrines and conversations, it is likely that the independence and autonomy of churches, and of religious institutions and associations generally are seen as deriving from the free-exercise or conscience rights of individual persons rather than as providing the basis for the exercise of those rights.  (Indeed, many would say, and perhaps celebrate the fact, that institutions are becoming less important to our religious, or “spiritual,” lives.)  It remains the case, though, that the existence and independence of religious institutions are needed to – quoting Murray again -- “check the encroachments of secular power and preserve [the] immunities” of our “basic human things.”  Murray was right to worry that the individual conscience, standing alone, is not up to the task of creating and sustaining the conditions necessary to ensure religious freedom; it is not, as he put it, “equal to the burden” of serving as the “sole authentic mediator of moral imperatives to the political order” and the “keystone of the modern experiment in freedom.”  An institutional approach to the Religion Clauses – an approach that is consistent with the reality of increasing pluralism and should therefore be attractive to progressives --  would recognize this worry, and have responding to it as its chief aim.

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Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").
 

Religion and Division

Crosspost from Balkinization

A particular narrative has, for many years, informed and shaped both our thinking about the meaning and purpose of the First Amendment’s no-establishment-of-religion rule and the construction-by-courts of the doctrines, standards, and tests used to enforce that rule. The narrative goes something like this: Europe suffered through many years of war, persecution, and political turmoil, in large part because of the failure to appropriately separate church and state, religion and politics. As Madison put it, in the Memorial and Remonstrance, “[d]uring almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” Our Founders learned from this experience, the narrative goes, and so sought to guard against “divisiveness” in politics by privatizing religion.

Obviously, there is something to this narrative. As I have tried to explain in more detail elsewhere, though, I believe it is a mistake – one that for several decades misshaped our constitutional doctrines and debates and one that “progressives” and “conservatives” alike should want to see abandoned well before 2020 – to think that observations or predictions of “divisiveness” should have any significant place either in the judicial enforcement of the no-establishment rule or in citizens’ participation in what Jack Balkin calls the broader “tradition of redemptive constitutionalism.” After all, and to quote Madison again, “[l]iberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

Noah Feldman and Bill Marshall contributed thoughtful essays to The Constitution in 2020 on the challenge of “protecting religious diversity” through our Constitution. I agree with much – most, in fact – of what they wrote, notwithstanding the fact that the “constitutional vision” developed and defended in the volume is, for the most part, not my own. This short comment is not intended as a criticism, or even a direct response, to their essays. It was, instead, merely prompted by what seemed to me to be each scholar’s embrace of the idea that the First Amendment was designed to be, and should be, understood and enforced with an eye toward avoiding or soothing “divisiveness.” (Professor Feldman, for example, follows Chief Justice Burger – and, more recently, Justice Breyer – in stating that a no-money-to-religion rule can be justified “on the ground that debates over government funding are likely to lead to political polarization – an especially great risk in our vibrantly diverse society.”)

In my view, though – and in John Courtney Murray’s words – we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.” Pluralism, Murray thought, “is the native condition of American society” and the unity toward which Americans have aspired – e pluribus unum – is a “unity of a limited order.” As I see it, those who crafted our Constitution believed that both authentic freedom and effective government could be secured by harnessing, rather than homogenizing, the messiness of democracy.  It seems both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well, and engaging in precisely the “larger dialogue” and “conversation” for which The Constitution in 2020 calls.

Roberto Unger suggested, more than a decade ago, that one of the “dirty little secrets of contemporary jurisprudence” is its “discomfort with democracy.” And, in a similar vein (though not with regard to the Establishment Clause), Rick Pildes has voiced the worry that “in the political realm, judges and others cling . . . tenaciously to the fear that too much politics, or too competitive a political system, will bring instability, fragmentation, and disorder.”  In my view, our thinking about religious liberty and church-state relations, and about the role of courts in protecting that liberty and policing those relations, should not – today or in 2020 -- be affected or colored by this “fear.”
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Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

The First Amendment in 2020: An Institutional Perspective

Crosspost from Balkinization

Justice Oliver Wendell Holmes once famously wrote, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” The difficulty of this advice should not be underestimated – especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have “a deeply felt desire . . . to achieve noninstrumental certainty in the law.” And Fred Schauer has written of the lawyer’s tendency to think in terms of “juridical categories” rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers’ greatest gift and their greatest handicap.

The law of the First Amendment abounds with evidence of the lure of acontextuality. Across a range of First Amendment doctrines dealing with very different forms of speech, worship, association, and institutional and discursive frameworks, we see judges and scholars hoping to find some frame, some word or concept, that will bring a theoretically pure and coherent shape to the whole of First Amendment law, with little apparent regard for who is speaking or what is being said. “Equality,” “neutrality,” “content-neutrality,” and many more buzzwords are touted as the path to an analytically pure First Amendment. 

Invariably, these proposals fail to win complete agreement. But that does not appear to extinguish hope for some Grand Unified Theory of the First Amendment. If one of these concepts is revealed as a failure, if it does not capture all of the First Amendment within its grasp, then some new candidate will take its place soon enough. Like Gatsby, First Amendment theorists think: “It eluded us then, but that’s no matter – tomorrow we will run faster, stretch out our arms farther.  And one fine morning . . . .” Yet the next morning dawns, and everyone seems to agree: despite the effort to impose some order on the First Amendment, it remains “notoriously scattered and confused, a jumble of incompatible and indeterminate tests,” as Robert Post writes in one of his contributions to The Constitution in 2020.

Is there a better way to proceed? I believe there is. In fact, a number of First Amendment scholars, of whom I am only one, have argued that the way out of the First Amendment impasse lies in resisting the lure of acontextuality itself. We should refashion the First Amendment from the bottom up – from the distinct and varied structures, institutions, and social practices in which public discourse actually takes place, rather than hoping to find some concept or rule that will apply to all of them. We should take Holmes’s advice and think things, and let the words that describe and order them emerge organically rather than being imposed upon them.

Both Robert Post and Yochai Benkler, in their contributions to The Constitution in 2020, take something of this approach, although I would not expect them to agree with all (or anything) I say here. Post writes that we should begin our efforts to understand the First Amendment by focusing on the nature and role of public discourse, and asking how the First Amendment can strengthen and “sustain a healthy public sphere.” Benkler writes that liberty is not simply a matter of “the Constitution as law,” but consists also of “patterns of human communication and expression.” Human flourishing, he says, is “less affected by ‘the Constitution’ as a formal legal category than by the confluence of formal rules within the economic, social, and technical structures that make up the actual context within which human action, alone and with others, occurs.”

This, I believe, is a much better place to start reshaping the First Amendment, whether in 2020 or tomorrow. In my work, one place this starting-point leads us to is a deeper consideration of the role of what I call “First Amendment institutions.” (I follow Schauer in using this term, although not always to the same effect.) Public discourse often takes place in and through institutions. That includes most especially a range of traditional and fairly readily identifiable institutions that have grown up alongside our constitutional and social structure: libraries, universities, schools, religious associations, voluntary associations, the press, and others. It includes, too, emerging institutions, often more inchoate; the Internet, with its varied speech structures, is surely one of the most important of these. These institutions have their own, varied forms of discourse formation, their own norms and practices, their own forms of self-monitoring and self-regulation. 

Rather than impose some rule or principle that might attempt in vain to capture each of these institutions and their practices, we might instead proceed by thinking about these institutions more closely, asking how they act and self-regulate, and deferring substantially to them as they develop their own evolving sets of best practices. We might grant them substantial autonomy within their given spheres – not absolutely, and not because we suppose these institutions are perfect, but because we believe that they can do a better job as seedbeds of First Amendment doctrine and sites for public discourse than the courts could do by subjecting them to a set of ultimately unresponsive and incoherent acontextual rules. Just as Mark Tushnet has talked about the Constitution outside the courts, so we might think of a First Amendment outside the courts – one that is more institutionally diverse and responsive to institutional practices, one that emerges largely from the institutions in which public discourse actually takes place.

Much more, of course, needs to be worked out about this. It is not an approach that gives the main spotlight to either the individual or the state, as current First Amendment doctrine is wont to do, and both of these key players need their own place within First Amendment institutionalism – or a place entirely of their own. And it is certain that some of the potential implications of a thorough-going institutionalist approach might be off-putting to some, particularly those who think private institutions ought to be governed by generally applicable and acontextual laws, such as anti-discrimination laws. Given the number of institutions that are substantially self-regulating and have a long history of institutional practices, but that are nominally public, a First Amendment institutions approach might also raise questions about current state action doctrine – an issue about which Mark Tushnet raises his own questions in The Constitution in 2020. 

I do not, therefore, pretend to provide a complete road-map to the institutional First Amendment as it might look in 2020. But I want to urge us to think about it. I want to suggest that the very real questions and transition costs raised by this approach are not insurmountable. Moreover, those costs only look prohibitive if we believe that a coherent acontextual First Amendment is possible, and that it best serves our needs and contributes to the healthy development and maintenance of public discourse. After decades of laments for both the incoherence of First Amendment doctrine and the poverty and paucity of public discourse, however, I think there are fewer grounds than ever for believing that this is so. Public discourse emerges from institutions that in some cases pre-existed and in other cases grew up alongside the First Amendment, and those institutions and their practices are sticky and largely self-sustaining. They are not simply creatures of the First Amendment. But the First Amendment might develop in a stronger and more socially responsive way if it were their creature. The First Amendment itself is a mere formula of words that might make more sense if we began by thinking about the existence of things, including institutions, in the world.

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Paul Horwitz is Associate Professor of Law at the University of Alabama School of Law. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Rich Garnett (Notre Dame Law School, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

Discrimination, Violence, and the Constitution

Crosspost from Balkinization

The essays in The Constitution in 2020 ask not only what the Constitution can do for us, but what we can do for the Constitution. In other words, the book offers both visions of what constitutional law should be and concrete suggestions for how to make it so. Optimism—pragmatic, cautious, yet still resolute—characterizes discussions of equal protection, social and economic rights, free speech, and religious liberty. The book says very little, however, about the most litigated provisions of the Bill of Rights, the provisions to which individuals facing an exercise of state power most often appeal. I refer to constitutional criminal procedure, and I wonder: Is the criminal justice system no place for constitutional optimism? Is criminal justice a realm where we can do little with the Constitution, and where it can do little for us?

American policing and punishment practices are characterized by considerable racial and economic disparities. And at least at a certain level of abstraction, equality is a powerful constitutional norm. So we might look for constitutional levers to address inequality in the criminal justice system. Tracey Meares takes this approach in “The Progressive Past,” the sole essay in The Constitution in 2020 directly focused on criminal justice. As Meares notes, in the 1960s and 1970s, courts applied constitutional protections for criminal defendants in attempts to address widespread racial discrimination. But this project was never fully successful, and at any rate, in more recent decades courts have read the Bill of Rights to provide much narrower protections to defendants and thus to permit a much wider range of state practices. Toward a new (or revived) effort to address inequality, Meares suggests that we think of constitutional criminal procedure not merely in terms of protections for individual defendants, but as a source of public legitimacy for the criminal law. Her “public-regarding approach” would identify disparities that undermine public perceptions of fairness and legitimacy, such as race-based juror selection or race-based defendant selection (selective prosecutions), and it would use constitutional levers to address those disparities. 

There is much to be gained by invoking antidiscrimination norms to reform American penal practices. Of course, we will still argue about what constitutes equality. As noted in Robin West’s essay in the 2020 volume, the legal conception of equality emphasizes treating like cases alike. In criminal justice (and elsewhere), there is considerable disagreement about how to classify “like cases.” For example, many would argue that racial disparities in American prison populations simply reflect patterns of offending. We impose like punishments on like offenders, the argument goes, and it’s unfortunate but true that racial minorities more often commit serious crimes. There are ways to undermine this claim, including Meares’s proposed attention to selective prosecutions. But even if we could agree on what equality means, and even as we pursue more egalitarian practices, it is not clear that equality is enough. I think observers of America’s sprawling penal system must ask whether inequality is the only constitutionally suspect feature of that system.

Assume, far-fetched as the notion may be, that our criminal laws and enforcement practices were purged of racial discrimination. Assume, also, that the expansive conception of the state’s penal power persisted. Legislatures still possessed the same broad discretion to criminalize conduct and to prescribe lengthy prison sentences that they have today; police officers still possessed the same broad discretion to search and seize persons in the investigative process; and prison officials still possessed the same broad discretion to use force within the prison to maintain order and discipline. In this imagined world, none of this discretion would be exercised in a racially discriminatory manner, but it would still be used to police and punish aggressively.  In this imagined world, the criminal justice practices currently directed disproportionately at non-whites would be experienced by everyone. Would the Constitution be satisfied?

The question is whether and how the Constitution imposes any limitations on the state’s use of force independent of requirements to use force in a nondiscriminatory manner. Do constitutional provisions such as the Fourth and Eighth Amendments restrict state power in ways not addressed by the Equal Protection Clause? Earlier this year I wrote about the use of the term “violence specialists” to describe agents of the state authorized to use physical force for public ends. The authors who use this term assume that every society has its violence specialists, but constitutional democracies are distinctive in that the violence specialists are subordinated to the rule of law. But which law? What I’d like to figure out—before 2020, I hope—is whether the Fourth and Eighth Amendments could provide more meaningful restrictions on state officials’ decisions to use force to police or punish.

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Alice Ristroph is Professor of Law at Seton Hall University School of Law. She will be appearing on Saturday's "Individual Rights" Panel with Rich Garnett (Notre Dame Law School, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), Paul Horwitz (University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Elizabeth Emens (Columbia Law School, "Disability's Force").
 

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