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Tuesday, October 06, 2009

The Constitution in 2020: A Pre-Partum Post-Mortem

I was very grateful to the organizers of the Constitution in 2020 conference for inviting me to participate this past weekend on the individual rights panel.  Most of the panels I saw were superb, particularly the constitutional theory and federalism panels.  Josh Blackman, one of the attendees, kindly took notes and blogged about the conference here.  I want to offer one response to Josh's post about the individual rights panel, and one broader observation about the conference.  

Josh writes of our panel, which included me and co-blogger Rick, that it struck him that "[i]t almost seems like the panelists want[ed] to achieve some end, and they flip[ped] through the Constitution trying to find something, anything, to justify [their] beliefs.  This seems backwards.  Shouldn't the text of the constitution inform what the law is? . . . These scholars are creating brilliant theories of society, government, policy and then as a footnote, try[ing] to make portions of the Constitution support it."  This is a well-worn criticism, one that of course is used against both left- and right-leaning constitutional theorists, and I can certainly understand its looming at this conference, for reasons I'll expand on below.  I'm not sure, however, that it was an apt criticism of this panel.  All of us did, in an important sense, start with constitutional text -- Elizabeth Emens, who spoke on disability rights, started with the Equal Protection Clause, Alice Ristroph spoke about the criminal procedure amendments, and Rick and I started with the First Amendment.  We all had normative positions, but they weren't necessarily the beginning or the ending of the interpretive process; rather, one informed the other and vice versa.  Rick and I, at least, inform our analysis and our sense of what the First Amendment permits and compels by way of constitutional interpretation with theories and principles that, as it turns out, have deep historical roots, both in the development of Western culture generally and in the history preceding, including, and following the founding of the Constitution; and I think the same thing could be said of Alice, whose "anti-violence" theory has some roots in the political theory of the criminal procedure amendments.  Of course all these theories are subject to criticism and modification, both on the basis of their fit with text and history and on broader normative bases.  But -- and this could be said of other panelists as well -- that doesn't mean they are simply result-oriented.  Really thinking hard about the Constitution, both in a textualist and a historically informed way, does in my view require good faith, but a good-faith effort to do so nevertheless leaves room for a number of interpretive strategies, the use of various historical developments, some of which are well-known to all of us and some of which have received less recognition in our time and deserve closer attention, and a number of different theories and outcomes.

Now, that doesn't mean Josh's general point lacks any purchase.  What struck me about the conference was that it was directed around a "project" (an oft-used term over the weekend) whose terms are still quite uncertain, and to which not everyone who served as a panelist had signed on.  Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists.  Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable.  Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don't care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives.  

I very much enjoyed the conversation among the panelists in category three, which although it leaned left was conducted in good faith and involved a variety of perspectives.  The folks in category two, I would say, were probably well-positioned to talk to the folks in both category one and category three.  But there was a serious gulf between the folks in category one and category three, even when they happened to share political perspectives, which wasn't always the case.  It wasn't surprising to me that many of the people who were there to talk about constitutional theory weren't there when the folks from SEIU and other organizing groups talked about "implementing" the Constitution in 2020 "project."  Indeed, it seems to me that the folks in all three categories each had very different senses of what the "project" is.  My sympathies happen to lie with the folks in category three, who think it may be sensible to talk about a "project" of thinking about the future of the Constitution but are less likely to sign on to a "project" of seeing constitutionalism simply as a vehicle for implementing political change of a particular valence; as to the folks in category one, I am always impressed and heartened by people who do difficult political work (of many stripes), but that project isn't my own.  The folks in category two, which to me includes the conference organizers, I think have the greatest burden on them to figure out whether it is really possible to remain in the middle on this one, or whether there are either multiple "projects" or none here.  The same tension is, for those who have read it, evident in the Constitution in 2020 book itself, and so it is unsurprising that it surfaced at the conference as well.  

It was a terrific conference: I learned a lot, met some new friends and renewed ties to old ones, and was grateful to be there.  Yale knows how to throw a party.  But if the organizers of the book and conference are serious about pursuing a constitutional "project," I think they will have to do more work in defining it before (or if) it can draw committed adherents from all three categories.   

Posted by Paul Horwitz on October 6, 2009 at 12:26 PM in Paul Horwitz | Permalink


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Great summary, Paul. I think you are spot-on in highlighting the possible tension between those of us who were thinking and talking about the "in 2020, if we were to make progress toward a correct / best understanding of the Constitution, what would that understanding look like and what are some of the steps we'd have taken?" question, and those who were instead asking "how can those of us who are committed to a certain vision of society, politics, and policy bring about that vision?" question.

Posted by: Rick Garnett | Oct 6, 2009 3:11:17 PM

Professor Horwitz, thank you for your thoughtful response. My thoughts http://joshblogs.wordpress.com/2009/10/06/constitution-in-2020-response-to-professor-horwitz/

Posted by: Josh Blackman | Oct 6, 2009 2:12:16 PM

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