Amendment 14

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?

Panel Recap: Individual Rights

The panelists on the Individual Rights panel pushed the boundaries of the panel’s theme in two ways.  First, they did not engage in a definitional debate as to what individual rights are protected by the Constitution.  They instead focused either on creating a framework that would allow other actors to engage in the interpretation debate or on theorizing new tools for realizing constitutional rights.  Second, the panelists suggested that a progressive vision of individual rights in 2020 may not be focused on the individual at all – the best way to protect individual rights may be through a reimagination of the social infrastructure. 
As Professor Rick Garnett noted, the quintessential image associated with individual rights, that of the lone dissenter, is still important; it remains the recipient of these rights and one of its protectors.  However, the de-contextualized individual was largely absent from a conversation about individual rights that was dominated by institutions, social organizations and movements, identity groups, and our social environment.
This is not to suggest that the panelists’ presentations were similar; as you'll see, although the panelists shared some common ground, each tackled divergent aspects of this broad category of constitutional rights:

Video courtesy of Yale Law School.

Professor Elizabeth Emens started the discussion off by positing that anti-discrimination law is trapped in an “individual bad actor” model which fails to address institutional structures that lead to disparate impact, and that a progressive vision of individual rights must correct this failure.  She suggested that disability law may be a helpful analytical tool for reimagining “the anti-discrimination project.”  By locating the idea of disability between the individual’s impairment and the social environment, disability law is able to “focus on structural change without losing sight of the individuals,” a focus that Professor Emens is optimistic might benefit anti-discrimination law.
Professor Garnett and Professor Paul Horwitz both argued institutions are not only mediums through which people may express their rights, but also are [mechanisms?] capable of protecting these rights.  Professor Garnett argued that the right to religious freedom is best protected and served by ensuring that non-state institutions, including churches and other religious organizations, flourish.  Professor Horwitz posited that the First Amendment doctrine would be best served by learning from the best practices these institutions have developed over time, and by reconsidering the relationship between courts, institutions, and the rights themselves.  In the long run, they argue, protecting these institutions may be the best way to protect the rights of the individual—even acknowledging that these institutions may not always support those individual rights. 
Professor Alice Ristoph concluded the panelist presentation portion of the session.  She discussed the possibility of identifying an anti-violence norm in the Constitution.  While anti-discrimination would only prevent the use of [more?] force against one group, Professor Ristoph expressed some optimism that the Constitution might contain instead a norm that curtails the government’s use of violence in pursuit of goals such as criminal justice or national security.  She also expressed concern that the constitution and citizens themselves may be used to rationalize government violence.
The panelists considered several intriguing questions posed by audience members during the later half of the panel. Professor Emens and Professor Ristoph debated about how much work anti-discrimination might do in bringing about an anti-violence norm.  In response, Paul Kahn, who moderated the panel, suggested that their debate illuminated two distinct views of state action as an actor in the protection of state rights: either rights constrain the state, or they guide the state toward positive obligations of accommodation. 
Judith Resnik challenged the premise that federal courts might assist in identifying and protecting an anti-violence norm, noting that they often have tolerated vast amounts of violence.  She also asked how a social movement might engender actors who are less frightened and more willing to support this norm.  Although her points were directed toward Professor Ristoph, others queried whether different fears—of stigmatization and vulnerability—might prevent people from linking disability law with anti-discrimination law. 
Reva Siegel expressed concern that the accommodation model of disability law may be too general a mode of equality that lacks the “granular, group-specific answers” that are needed because discrimination affects distinct communities and groups differently.
Professor Horwitz acknowledged that he and the other panelists have theories that, if implemented, would substantially change the toolkit currently in use for protecting individual rights.  He considered whether it is worth changing the toolkit, given the transition costs of doing so; and whether these additions and changes illuminate the appropriate tools to use.    
The panelists and audience members raised a number of important issues; here, I offer a few additional questions that hopefully build upon these contributions.  First, I noted above that the panelists tread common ground in their treatment of the individual in relation to other actors.  Taking first the theories of Professor Garnett and Professor Horwitz – the strength and historical significance of institutions both support their theories, but also beg the question as to how much stronger non-state actors should be made; is there a tipping point beyond which they will no longer be protectors of individual rights and instead become limits to these rights? Even if social organizations shore up individual rights in the long run, is this enough to warrant the strengthening of institutions that may not be supportive of some rights of the individual? 
This question might be asked more broadly of all the panelists: in a discussion of contextualized individual rights, what is the right balance between the lone dissenter, the individual as a social being, non-state institutions, and the government?  Finally, what happens to any of the theses presented when we consider a fact that emerged from the discussion: that individuals, social organizations, and even the state may be either a useful tool for protecting or a roadblock to the realization of constitutional protected rights, in addition to being the intended recipient of these rights?

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 2)

Continuing last week's Point-Counterpoint, begun by Daniel Winik...
Counterpoint: Jeremy Kessler
I thank Daniel for getting the conversation rolling with several pragmatic reasons for why we should fight for same-sex marriage in the legislatures rather than the courts. Although I'm sympathetic to many of Daniel's points, I'm not convinced by his argument as a whole. Even if one were to argue for a "mixed" legislative-judicial strategy, it's hard to underestimate the importance of the courts to the overall marriage equality project or to the progressive project more generally.

Daniel raises the specter of Roe in arguing that "constitutional progress is most effective and most lasting when it derives from popular consensus." It's true that bold judicial decisions risk solidifying resistance to constitutional causes. But for every Roe there may be a Brown v. Board of Education. Brown (347 U.S. 483, full text) caused a major backlash in the South and even liberal intellectuals assailed it for its supposedly shoddy reasoning. But today it's one of the pillars of our constitutional order. Judge-made law often meets popular resistance, but this resistance may itself prove an important catalyst for positive democratic change. Why? Adjudicative action can raise awareness of the issue, help citizens think through what their position really is, and so, ultimately, bring pressure to bear on local political actors. The language of rights is all-American and the courts are high-profile communities where that language can be spoken and broadcast to the general public.

The conversation-changing potential of adjudication isn't restricted to the federal courts. Just as "the process of legislative change, state by state" can affect the evolution of public attitudes toward marriage equality, the process of judicial change on the issue at the state level may also positively inform public attitudes. We are a law-abiding people. If state courts believe that marriage equality is the immanent law of their land, other states' courts and citizenries should know about this belief. The more marriage equality is the law the better, especially if you are by disposition an incrementalist. Gradually, the weather will change, and the right to marriage will become the daily forecast. Both court and legislative action can contribute to this atmospheric shift.

Beyond strategy, there's at least one other compelling reason for pursuing marriage equality in the courts. It relates to Robin West's argument for the legislative articulation of constitutional law. West argues that the Supreme Court's ongoing failure to treat the Equal Protection clause as a guarantee of positive action to eradicate inequality (as opposed to a negative check on legislative discrimination) is inherent in the nature of jurisprudence itself. From West's standpoint, judges are inclined to think equal protection demands, and can provide no more than, formally equal treatment of the subjects of legislation because such formally equal treatment is what judges themselves are expected to provide. Unlike judges, however, legislators are neither expected to mete out blind justice, nor to respect the value of continuity with precedent that drives judicial reluctance to license new rights. When judges demand that legislators act like judges, making no distinctions between aggrieved groups and rarely breaking with the status quo, they do violence to democratic governance.

West takes this sorry state of affairs to mean that we should concentrate our energies on developing a "legisprudence" of how legislatures can best articulate constitutional doctrine. But this cure doesn't necessarily treat the sickness West diagnoses. However progressive legislative action might be, regressively formalistic courts can still act as a stumbling block. It is therefore dangerous for progressives to accept such obstructionist courts as the natural order. We know that courts have, at times, engaged in declarations of positive rights and prescribed the proper remedies for their violation. Post-Brown desegregation cases like Green v. County School Board of New Kent County (391 U.S. 430, full text) and Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1, full text) demanded that local governments take substantial, positive steps in order to achieve the true promise of equal protection. Brown's own notion of inherent inequality suggests that courts can create doctrine that demands legislatures go beyond their contemporary understanding of formal equality. This legacy of the details-oriented affirmation of positive rights is a noble one.

The development of a jurisprudence of positive rights should not be abandoned because of contemporary resistance to this jurisprudence. Judges should say what the law is. If progressives think the law demands a positive interpretation of equal protection -- in the case of gay marriage, the entitlement of legal marriage for all -- then they should try to persuade judges, and the larger community, of this legal fact. Exiting the courts because they tend to enforce readings of equal protection that allow actual discrimination can only perpetuate an undesirable, and incorrect, jurisprudence. Taking the fight to the courts serves not just the cause of same-sex marriage but the broader progressive agenda.

A New Use for Federalism? The Benefits and Constitutionality of Randomness in Federal Policymaking

Determining whether progressives should pursue change through the legislatures or the courts depends on our understanding both of what each of these institutions should do and of what these institutions are capable of doing... and they might be more versatile than we've come to assume. As Adam Chandler explains, social science methods point to some interesting uses Congress could make of federalism.


Where laws and regulations differ across state borders, researchers are provided with natural tests of the impacts of those policies. For instance, folks with statistical training can use geographical panel data techniques to discover the effect of a law that is enacted in multiples states at staggered times. Such studies have been done on the deterrent impact of capital punishment and the impact of right-to-carry laws on crime rates to give just two examples. These analyses, however, are necessarily retrospective and constrained by inference techniques. Extensive and careful effort must be used to control for, among other variables, the underlying reasons some states enacted the laws and others did not. More often than not, the resulting answer is that there is not enough evidence to draw a conclusion.

Consider, in contrast, a federal law designed to apply only to randomly selected states (or congressional districts, etc.). Controlled randomized experiments are often described as a “gold standard” in social science research. Adapted from clinical trials, they attempt to isolate the effects of some intervention — say, a new sex ed program — from the environment’s chaotic soup of natural influences and trends. That’s done by comparing a randomly constituted “experimental” group’s experience under the intervention to the natural, everyday changes that a second randomly constituted group experiences when left alone (this second group is the “control” group). These comparisons can help us measure the causal link between a policy and an outcome. And where do the groups come from? I suggest we randomly assign geographical regions, like states, into one or the other.

Perhaps the law could grant twenty random states the funding for a new sexual education curriculum. Then some years later, we could determine the new curriculum’s impact on teen pregnancy rates by comparing the twenty “experimental” states’ teen pregnancy rates to the rates in the thirty “control” states. In this way, such a law could provide one of the first nationwide experimental tests of a policy’s effectiveness. That is, perhaps our country’s federalist structure could allow us to use the states as policy laboratories. Could this be a new use for federalism?

It’s rarely the case that government policies are purposefully applied to some people and not others for the sake of comparison. Even more rarely are policies randomly applied to some and not others, but there are a few impressive examples. In the fall of 1994, the Department of Housing and Urban Development began an experimental housing mobility program in five urban centers based explicitly on random assignment. Families were randomly selected to receive assistance in moving to wealthier neighborhoods. As a result of the randomization, and to the surprise of many, this “Move to Opportunity” program was convincingly deemed to be much less successful than had been previously argued. The National Job Corps Study in 1993 convinced a skeptical Department of Labor that the Job Corps, a training program for disadvantaged 16- to 24-year-olds, is effective for increasing earnings, increasing educational attainment, and decreasing criminality. The random assignment at the core of the study essentially saved the Job Corps from elimination. More recently, the “No Child Left Behind” Act called for the use of “scientifically based research” as the basis for many education programs, indicating at least some appetite for randomization in a recent Congress, if only implicitly.

Inevitably in a geographically-randomized scheme like this, there are concerns about state sovereignty to consider. Of course, the federal government regularly discriminates among the states in funding and regulation, but it rarely does so randomly. In the criminal sentencing arena, there could be Eighth Amendment arguments about “unusual punishments” if people committing identical crimes are subjected to different sentencing guidelines because of their state of residence. And indeed, the U.S. Supreme Court’s primary basis for selecting its cases is to smooth out differential interpretations of federal law among Circuits.

There are also potential Equal Protection complaints about such a randomization scheme. Because geography does not constitute a subject class and as long as no fundamental rights are implicated, such “randomization of application” laws would probably only have to pass the “rational basis” bar. But does the randomization built into the laws make them by definition "arbitrary" or "capricious," undermining their rationality? Or alternatively, when would the laws be rationally related to a legitimate government purpose? Is determining the effectiveness of a certain policy or program, like a new sex ed curriculum, “legitimate”? Such an inquiry has the potential to put courts in a role analogous to research funding bodies, answering the question: Does the potential result of this trial intervention justify its cost in arbitrariness and unfairness (for courts) or in dollars (for funders)?

Setting aside constitutional and ethical objections for the moment, the value of such a nationwide randomized study is easy to see. Political candidates often campaign on the promise of eliminating programs that do not work and expanding those that do. If they truly seek to know which is which, more randomization in federal policymaking is a powerful solution.

What objections to this randomization scheme, constitutional or otherwise, can you see?  Drop a comment below. Or, if you email me at, I might highlight them in a future post.

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