THINKING ONE\u2019S OWN THOUGHTS IN THE SPACES AROUND THE PRINT<\/a><\/strong>: A dilettante\u2019s notes from the American Constitution Society\u2019s \u201cConstitution in 2020\u201d panel.<\/p>\n This is one of those posts where I get up on my hind legs and fuss at my elders and betters. Although in this one, there isn\u2019t much fussin\u2019, since the panel (at the National Press Club, last Tuesday\u2013watch it here!<\/a>) was really meant more to give the flavor of the perspectives and internal debates you might find if you read the ACS\u2019s new essay collection\u2013titled, in a shocking coincidence, The Constitution in 2020<\/em>. I still haven\u2019t read it, although I\u2019m planning to read at least some of the pieces. I want to finish Father of Frankenstein<\/em> first! So\u2026 this is how the panel looked to the layest of women, who comes at these issues from a broadly right-wing viewpoint but who has found the Sotomayor hearings a farcical exposure <\/a>of the weaknesses of the \u201coriginalist\u201d\/\u201djust read the text\u201d position.<\/p>\n The idea behind the book came from a Reagan-era document from the Meese DOJ, an internal report-type thing called \u201cThe Constitution in 2000,\u201d laying out where the administration\u2019s judicial guys wanted to take constitutional interpretation. So The Constitution in 2020<\/em> is the progressive version of this \u201980s right-wing document. The ACS version has the obvious advantage of coming from an essentially intellectual and academic society, rather than from within a sitting administration. (Has anyone done an organizational-theory or leadership-theory study of the Federalist Society vs. ACS?)<\/p>\n The panelists were introduced by a fire-breathin\u2019 lady, who is apparently the new head of ACS?, and who followed the grand tradition of people who introduce highly intellectual panels by throwing red meat. I liked her! The panelists were Jack Balkin, Reva Siegel, Walter Dellinger, and\u2026 uh\u2026 Mark Tushnet, alias my father.<\/p>\n What follows are very <\/em>scattershot notes, in chronological order. Stuff in quotes = exact quotes, as best I could take them down; other stuff following someone\u2019s name = paraphrase; stuff in brackets = me. I\u2019ll probably also duck in and out of the narration in ways which should be transparent to all\u2013e.g. the last couple paragraphs will be just me talking about something my father said which really struck me.<\/p>\n Somebody <\/strong>described the (or a) progressive approach to constitutional interpretation as, \u201cIt\u2019s law, but it\u2019s our law\u201d\u2013a \u201cdemocratic\u201d jurisprudence tempered by the rule of law. The democratic part seemed to be cashed out by the idea that there are \u201cmany <\/em>constitutional interpreters, not just the Supreme Court\u201d\u2013legislatures and citizens can be interpreters as well. [When they say \u201ccitizens\u201d I hear \u201cculture,\u201d but those words may have important differences in connotation\u2013not sure. The panelists mostly seemed to mean \u201csocial movements\u201d when they said \u201ccitizens.\u201d I\u2019m not sure about that. As much as I am out of sympathy with the silent majority, they\u2019re citizens too; shouldn\u2019t somebody speak for the people who keep their heads down and try to play by the rules?<\/p>\n [Anyway, this point about culture shifting our interpretations of the constitutional text is both a) obviously true! and b) the universal alibi for courts who want to pretend that they\u2019re just <\/em>responding to preexisting cultural shifts. More on this anon.]<\/p>\n MVT<\/strong> (my dad): \u201cDesign of national health care policy is a matter of Constitutional significance, even if the courts have nothing to say about it,\u201d ditto education. In the US, the courts have not developed\/taken on a notion of social-welfare rights.<\/p>\n Dellinger<\/strong>: The current Supreme Court pretends that courts and judges are the only constitutional actors\/interpreters, ignoring the President and Congress. If the Congress creates legislation creating rights against the state, the Supreme Court asks whether they <\/em>would have created these rights in a lawsuit brought directly under the Constitution, and if the answer is no, then they say Congress can\u2019t do it either. His example is Bush v. Gore<\/em>: There was already a process for determining the outcome of contested elections, which the court simply bypassed. [I agree.]<\/p>\n Bob Dornan (passed?) a bill to hunt out and expel HIV+ servicemembers. \u201cWhy can\u2019t the President <\/em>say this is a restraint on liberty which hurts military preparedness, and thus it is <\/em>unconstitutional, regardless of what the Court would hold?\u201d [Ohhhh\u2026 guy, do you really want to go there? I thought the \u201cimperial presidency\u201d was part of the problem<\/em>!]<\/p>\n Balkin<\/strong>: Gay rights advanced in state legislatures due to social movements, long before the Supreme Court decided Lawrence<\/em>. [This point gets challenged later.] Similarly, the DC gun-rights case, Heller<\/em>, only happened long after the gun-rights social movement had won a lot of cultural success.<\/p>\n Siegel<\/strong>: What is uniquely valuable in the judicial branch? \u201cWe prize in courts their independence<\/em>,\u201d the lack of immediate electoral reprisal. Examples of the Rehnquist Court vs. Congress: VAWA, parts of the ADA, RFRA. There\u2019s a \u201csignaling function\u201d: Representative branches can inform the Court that there\u2019s a changing vision of civil rights.<\/p>\n Balkin <\/strong>asks MVT <\/strong>what difference it makes if we think about e.g. Social Security as a Constitutional matter. He replies that this reframing \u201cshould alter the way we talk about [these social-welfare issues] in our political discourse. \u2026\u2019The best way to maximize distribution of health care\u2019 rather than whether some people should have it and others shouldn\u2019t.\u201d <\/p>\n Also [or, as both cause and effect of the above], this reframing would change our understanding of \u201cwhat it means to be an American.\u201d <\/p>\n And the reframing \u201cwould give the statutes we enact to embody these values a special kind of normative weight.\u201d [And therefore maybe also more deference from the Court?]<\/p>\n Balkin<\/strong>: Democratic constitutonalism renders confirmation-hearing questions like, \u201cAre you an umpire?\u201d, silly<\/em>. Instead, we should be asking, \u201cHow do courts integrate themselves into the larger web of interpreters?\u201d We shouldn\u2019t ask, \u201cTell us what the Constitution is<\/em>.\u201d [He doesn\u2019t give an alternative question, but maybe, \u201cTell me what the Court\u2019s interpretive role <\/em>should be\u201d? More on confirmation-hearing questions at the end.]<\/p>\n [How much of the integrative\/social-movements claim is empirical and how much is normative? When the court can <\/em>push the culture, when should it? Or, to put it another and more pointed way, would anyone on this panel actually vote to uphold DOMA?]<\/p>\n Siegel<\/strong>: The Court can smack Congress to protect individuals\u2019 civil rights but not to restrain legislation designed to protect individuals\u2019 civil rights. [This is both bracingly coherent and intelligible\u2026 and a bit \u201cheads I win, tails you lose\u201d if you take a more procedure-oriented view of the law. More on procedure vs. outcome in a bit.]<\/p>\n The courts\u2019 \u201cspecial purpose\u201d: \u201cprotecting relatively disempowered individuals\u201d against \u201cmobilized majorities.\u201d The courts can\u2019t stop a really determined majority, but they can ask the majority to \u201creflect\u201d\u2013basically, to take some time to consider whether they really want to be such colossal jerks. [Not her words!]<\/p>\n [I was really sympathetic to Siegel\u2019s focus on what makes the courts unique, since the rest of the panel was so focused on knitting the courts into a broader web of interpreters. Somebody needs to talk about why we should bother making courts interpreters at all. Still, her comments really brought out how language like \u201cminority\u201d and \u201ccivil rights\u201d relies on specific traditions, which can be challenged. Within these traditions, women are a minority, doctors who won\u2019t prescribe contraception aren\u2019t, and polygamists might be in ten years, you know?]<\/p>\n MVT<\/strong>: Right-wing \u201coriginalism\u201d is basically a rallying cry in favor of some substantive goals and against others. [Sort of the parallel criticism to the one I just made: \u201cOriginalism\u201d is a tradition in which many of the terms conceal their connotations.]<\/p>\n [Here again I wonder: When do\/should judges find against their substantive-outcome beliefs?\u2013e.g. Thomas\u2019s opinion in Lawrence<\/em>. This question might be esp. knotty for Siegel (assuming I\u2019m not misinterpreting her comments), since it would require substantive philosophical judgment on who <\/em>constitutes a relevant minority and what her rights against the majority should look like. \u2026Dellinger asked this very question a bit later, but said only that it\u2019s \u201cvery, very hard\u201d to answer. Thanks, guy.]<\/p>\n MVT <\/strong>also uses the example of gay rights (and disability rights) coming mostly through statute\u2013although Siegel <\/strong>challenges this and says that state courts have not been so quiet on gay rights. She says state courts have \u201cempowered certain voices otherwise not heard in politics,\u201d and \u201ccreated a space\u201d for legislative action. [\u201cCertain voices\u201d\u2013there\u2019s that unspoken tradition again! And again, the implication that legislatures really want <\/em>to be leftists a.k.a. not jerks, and the courts need to give them permission.]<\/p>\n My father then noted that in 2020, Scalia\u2013\u201cthe oldest of the conservatives\u201d\u2013will be 83, \u201cyounger than Justice Stevens is now.\u201d The dismay in the room was audible.<\/p>\n His suggestion for addressing this actuarial fact, offered with an uneven grin: \u201cThe number nine <\/em>is not written.\u201d Why not just add a few justices here and there?<\/p>\n Balkin <\/strong>suggests, more gently, term limits. [I\u2019d agree with this, and think it will become boringly obvious if lifespans continue to lengthen.]<\/p>\n Siegel <\/strong>invokes empathy. [And in fact I agreed with her specific examples (I forget what they were), but her approach again seemed a bit \u201cYou should defer to the legislatures when my outcome wins, because I\u2019m right, but not when my outcome loses.\u201d When the law is against you, invoke the facts; when the facts are against you, invoke the law; when the law and <\/em>the facts are against you, pound the empathy!]<\/p>\n [How does democratic Constitutionalism deal with the shocking popularity of torture? \u2026I suppose I should read the book.] Because right now I do wonder whether democratic constitutionalism is just a fancy way of saying that both legislature and courts (and the President??) should drag the text, kicking and screaming, into the progressive sunshine whenever they get the chance. Which, if you\u2019re a progressive, might be a very good idea! And yet the more procedure- and interpretive-theory-oriented talk from the panelists seemed to suggest that this was not the Wizard behind the curtain.<\/p>\n Anyway, last thought. After the panel, a woman was talking with my father, and I didn\u2019t hear what she said but it might\u2019ve been something about which Supreme Court justices he most admired or something. And again, I don\u2019t actually remember whom he named\u2013Marshall I\u2019m 99% sure, and someone else\u2013but his explanation really stuck with me. With a kind of baffled certainty, he said, \u201cHe was a good judge<\/em>. He was a good judge.\u201d<\/p>\n And that tone of voice was very familiar to me. It\u2019s the way people talk about leadership<\/em>: the irreducible capacity not merely for prudence but for some combination of right philosophy and risk and rhetoric. The beliefs really do matter, but there\u2019s something else there, something which can only be put into words if the words are poetry.<\/p>\n
\u2014\u2014\u2014\u2014\u2014\u2013
OK, all the rest of this is just Eve talking. One split I noticed in the panel was a three-way divide between what you might call a unitive interpretive theory vs. a unitive procedural theory vs. a unitive political-outcome or philosophical theory. Obviously all three of these intertwine and interact, and it\u2019s legit for a judge to draw from one or the other more from case to case. But I\u2019d put my father roughly more in the \u201cprocedural\u201d camp and Siegel roughly more in the \u201cphilosophical\u201d camp. I didn\u2019t get a good enough sense of the other two panelists\u2019 positions to take a guess. But would talking in these terms be illuminating? It might <\/em>help address some of the concerns of the \u201ctextualist\u201d or \u201cjudicial humility in the face of text and legislature\u201d types.<\/p>\n