democratic constitutionalism

Panel Recap – Roundtable: About the Constitution in 2020

Bringing together four of Yale Law School’s constitutional heavyweights, last Friday’s roundtable discussion was both backward- and forward-looking. Moderated by Duke’s Neil Siegel, the panelists spoke about the Constitution in 2020 as a movement, where it came from and what it aspires to achieve. After Reva Siegel introduced the Constitution in 2020 project, Robert Post spoke on democratic constitutionalism, Jack Balkin examined the purposes of a constitutional theory, Bruce Ackerman highlighted a constitutional concern for economic justice, and all the professors debated the future of the Supreme Court and its appointment process.

 Video courtesy of Yale Law School.

 

Reva Siegel recounted how this "Constitution in 2020" endeavor was instigated in response to a conservative project called the Constitution in 2000. The Constitution in 2000 was a document produced within the Reagan Justice Department in 1988 setting forth favored and disfavored lines of constitutional decisions. The document was a blueprint for change, imagining how a more conservative constitutional terrain could be achieved through judicial appointments and constitutional litigation. It was utopian, but restorative. It was also highly successful. Now it has spawned a responsive vision, the Constitution in 2020 project, which includes conferences, a book, and this blog.

Robert Post followed Professor Siegel, explaining the seeming paradox of “democratic constitutionalism,” one of the constitutional theories at the heart of the 2020 project. “Democratic” evokes politics, the will of the people. “Constitutional” evokes the limits on that political will. But the two are conjoined because a constitution must be democratically legitimate; it must be a constitution of the people. A constitution, given to us by the past, becomes ours through a process of “norm contestations.” Such contestations cause us to read the document differently, and in this way, the cultural values of a generation and that generation’s understanding of the document are linked. For example, the same-sex marriage controversy is being fought in many states, about state laws, but we know that our federal constitution is at stake in these contestations. Such challenges make us reconsider what we think of as part of America’s constitution.

Jack Balkin discussed three basic purposes of a constitutional theory like democratic constitutionalism: (1) legitimation, (2) dissent, and (3) persuasion. When constitutional theories legitimate, they articulate, in a way that people can understand, why what courts, legislatures, or presidents have done is legitimate. Second, when the people in power are not “your people,” you need a theory of interpretation to dissent from what is otherwise decided. Originalism was a classic method of dissent from the early 1970s to early 1990s. Finally, the basic way that the constitution changes over time is that people persuade one another that they are not thinking about the constitution correctly. In this way, an interpretive theory can change constitutional common sense. Appointments are just one piece of the puzzle: changing the constitutional culture through persuasion is more potent.

Finishing up the presentations, Bruce Ackerman distilled the constitutional development of the last two centuries down to two themes: identity (who are we?) and economic justice. These themes have alternated in prominence throughout our history, and Ackerman argued that we should return to a focus on economic justice. Over the last sixty years, we have made a lot of progress on the identity front, but have regressed on the quality of economic life in America. We are a much more unequal society today, economically, than we have been since the Great Depression. Ackerman claims that landmark statutes like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 are part of our constitutional order. Accordingly, he would like to see new landmark statutes on economic justice, environmental issues, and what will happen after the next attack.

Neil Siegel concluded the roundtable by posing questions on the Supreme Court confirmation process and the difference between aspirations and reasonable exectations for 2020 (after all, Justices Scalia and Kennedy will probably still be on the Court in 2020). In response to the first question, Reva Siegel lamented the fact that Americans lack the political vocabulary to talk about how judging is not just politics, but neither is it just impersonal mechanics outside the sphere of discretion.

Professor Balkin responded that the stakes have been increasing with each nomination since the 1980s because the Justices are not leaving the Court with the same frequency. Balkin recommended that the President make an appointment every two years, and if there are more than nine Justices as a result, then the most junior nine should decide most cases.

On the second question—aspirations versus reasonable expectations for the Supreme Court—Ackerman was dismissive, reminding listeners that the Court is historically a laggard in the construction of a new constitutional regime. Brown is a too-memorable exception when the Court took the lead. Reva Siegel reflected on the birth of the Constitution in 2020 project in 2004-2005 and concluded that the country has since changed in ways that were unimaginable then. Change is possible, she reiterated, a fitting and hopeful conclusion to the roundtable.

I will leave you with some questions raised by the panelists’ discussion. Most fundamental to the Constitution in 2020 project: what is the best strategy for changing the constitutional culture? In Professor Balkin's words, how do we take what is off the wall and put it on the wall? Is it through a new constitutional theory, like democratic constitutionalism? Is it through constitutional litigation? Through judicial appointments? Through landmark legislation? Are Article V amendments out of the question? And how central is the Supreme Court to the endeavor? These questions anchored the conference, and the answers we come up with will dictate whether the Constitution in 2020 enjoys the same success as the document that provoked it.

Constitutional Conventions: Getting 20/20 Vision About Them by 2020

Crosspost from Balkinization

The Constitution in 2020 is at once an effort to articulate a theory of progressive constitutionalism that can counter the ascendency of conservative constitutionalism’s theory of originalism – and is an effort to imagine what such a progressive constitutionalism can realistically hope to accomplish in the medium term. Notably, a majority of the essays in the book appear to give up on judge-centered approaches to constitutional change and seek to bring about progressive ends through legislation and social movements. Whether this is because the authors of the essays just don’t have their five votes on the Supreme Court as of yet (the cynical perspective of one recent review) – or whether it is because they have really grown convinced of some of the disadvantages of judge-led constitutional change – the volume makes clear that today’s mainstream liberals in the legal academy are no simplistic defenders of judicial review, judicial supremacy, and judicial liberal activism. The romance of FDR might remain, but the romance of the Warren Court has faded for most. This shift has been underway for some time, to be sure, but today’s law students are more likely to see their liberal law professors questioning Roe in earnest than previous generations. Brown may still be untouchable; but this book helps the next generation see clearly that if they want to own their Constitution and have it represent the best of their own constitutions, there are democratic methods outside the judiciary to make that happen.

Yet with all the enthusiasm progressives now display for methods of constitutional change outside the courts – and some scholars in the volume can’t help themselves from bubbling over with hope in light of Obama’s election – no one in the book spends any time getting serious about the structural deficits of our virtually-impossible-to-amend document that render democratic constitutionalism particularly hard to achieve. No one takes seriously the idea that maybe progressives ought to be devoting efforts to unlocking some of the structural barriers to facilitating democracy, both locally and nationally, through formal constitutional change. Larry Kramer’s contribution to the book hints in this direction, perhaps, if only obliquely. And surely if Sandy Levinson had been invited to write a chapter, more of this perspective would have been included.

One might have expected more attention to recent battles in state constitutionalism in the volume especially, if only because progressives have ultimately prevailed in state courts with arguments the federal courts have thus far rejected.  But the ongoing liberal appropriation of “federalism” – a theme seemingly central to democratic constitutionalism – has virtually ignored the possibility of taking seriously some recent calls for constitutional conventions at the state level. One might learn a great deal about how to campaign for and run a successful constitutional convention to fix some of our structural barriers to a more robust democracy through super-democratic means that are neither judicial nor “merely” legislative.

A federal constitutional convention by 2020 is unlikely, of course.  But several states are considering tinkering with their basic charters: New York and California are very populous states with very active conversations on the subject. Progressives should be interested in these efforts for their own sakes because local politics must be part of any serious progressive agenda. They should be interested instrumentally and pragmatically too because statewide constitutional conventions can teach us a lot about how to run an effective federal convention down the road. A fabulous resource to get a historical and legal perspective on state constitutional conventions more generally is available here.

In light of my service on policy and legal teams helping “Repair California” think through the details of its own call for a constitutional convention and my own recent proposal with Chris Elmendorf of UC-Davis for a way to fix California’s pathological budget process entrenched in its state constitution, my aim at the upcoming conference celebrating The Constitution in 2020 in October will be to shine a light on the details of modern constitutional convention design and the challenges in store for progressives willing to entertain the idea that structural change and new basic charters may be necessary to give democratic constitutionalism a fighting chance.  We won’t have a federal convention by 2020.  But we can by then hope to watch and influence some conventions as they unfold at the state-level, learn to overcome “conventionphobia,” and, ultimately, refine what a convention should look like when we realize a new federal constitution is finally necessary to reclaim ownership over our political community from the dead hands of the past.

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Ethan J. Leib is Associate Professor of Law at University of California Hastings College of the Law. He will be appearing on Saturday's "Localism and Democracy" panel with Rich Schragger (University of Virginia School of Law, "Federalism All-the-Way-Down"), Ilya Somin (George Mason University School of Law, "The Promise and Peril of Federalism in the 21st Century"), and Ernie Young (Duke Law School, "Preserving Democracy's Laboratories").
 

2020 News

The newest addition to the site is our "2020 News" page, where you can catch news items related to The Constitution in 2020. Up now are streaming videos from this summer's National Press Club event (featuring Walter Dellinger and Mark Tushnet) and ACS Convention (featuring William Forbath, Rachel Moran, Larry Kramer, and Vicki Jackson), as well as a podcast of Jack Balkin's interview on KERA (Dallas).

THE CONSTITUTION IN 2020 in the News

The Constitution in 2020 has been the subject of several thoughtful write-ups in the past few weeks. In addition to reviews in the Wall Street Journal and the L.A. Daily Journal, Jeffrey Rosen's "What's a Liberal Justice Now?" (from the May 31st edition of The New York Times Magazine) offers readers a concise overview of the intellectual trends that The Constitution in 2020 is engaging and/or exploring. In the process of laying out the pre-history of The Constitution in 2020, Rosen glosses several major schools of constitutional interpretation, namely, democratic constitutionalism, strict constructionism, and minimalism (I'm throwing quite a few "-isms" around, but no worries -- Rosen does a fantastic job explaining each and their interrelations). One note: While Rosen's article seems to suggest that minimalism is a fading, "Clinton-era" remnant, it's still alive and well, in the pages of The Constitution in 2020 no less (see chapter 4: Cass Sunstein's "The Minimalist Constitution"). Much of the frission in the book arises from the interplay between democratic constitutionalism and minimalism... but that's the subject for another post (or four).
 
Once you've got your constitutional sea-legs under you, you should head over to Ari Shapiro's "Conservatives Have 'Originalism,' Liberals Have...?" on NPR.com. Shapiro uses the publication of The Constitution in 2020 as an occasion to revisit the conversation about what the left/liberal/progressive method of constitutional interpretation is or should be. Several scholars weigh in, opening up what has rapidly developed into a lively discussion in the article's comments section.
 

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