"I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012." - Justice Ruth Bader GinsbergPart 1 of 2.
One of the running themes of the conference was an attempt at understanding where exactly we are in terms of the Constitution. Is the Roberts Court in the process of (or at least a threat to) a constitutional counterrevolution, reversing the constitutional understanding established by the New Deal? Or as President Obama phrased it, is the Roberts Court intent on returning us to the Lochner Era?
Conservative legal scholar Michael Greve described the atmosphere in this fashion:
It is impossible to convey the constitutional establishment’s near-clinical obsession with, and hysteria over, the possible invalidation of the ACA’s individual mandate. It would, they say, amount to an unconscionable act of aggression on the democratic process. A reversal of the New Deal and a resurrection of the ancien régime of the Second Republic. A judicial coup d’état.Jack Balkin described it as "constitutional dread." Persons who have read me know that I am of that school. (See Justice Kennedy's revolution, When the court said Congress could regulate inactivity; They are who we thought they were: the extreme and radical Republican Party; and The contorted contours of Congressional power according to the radical Roberts Court.)
The Yale conference featured what I think of as the "sane" conservatives—the ones who no longer wield power in the Republican Party. Greve writes:
[Liberals cannot] seriously believe that, but for their extravagant positions, we would hand over the country to Opus Dei, bind our wives’ and daughters’ feet, allow George Soros or David Koch to buy their very own Congressmen, or for that matter toss ailing widows and orphans into the streets. The real fear is that the Constitution might pose some limit to progressivism’s anything-goes imagination.At the conference, Greve said "the culture wars are over. Liberals have won." I suggest Greve, who in my personal interactions I found to be supremely intelligent, erudite and just plain nice, is not paying attention to what is happening in our country. That said, Greve thinks of progressivism only in terms of social justice. What Occupy has demonstrated, at least to me, is that the progressive project goes well beyond that: It encompasses a demand for economic justice and fairness. Its central point is that our government is working for the 1 percent and marginalizing the 99 percent.
Similarly, former federal appellate judge and Stanford law professor Michael McConnell pooh-poohed the idea that the conservative Republican movement is not extreme. He said conservatives do not want to repeal the New Deal. With all due respect to Judge McConnell, somebody forgot to tell DC Circuit Judge Janice Rogers Brown, who recently opined:
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.I believe Judge Rogers Brown's views are closer to those of the Republican Party today than those of Judge McConnell. Thus, in my view, the case for "constitutional dread" is strong. And I think that the extreme and radical Constitutional agenda of the Republican Party is not only anathema to the goals of the Occupy movement, but if triumphant, it would block any real chance of achieving these goals.
As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. [...]
The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, R estoring the Lost Constitution: The Presumption of Liberty 260 (2004)."
But the conference also provided approaches of "constitutional optimism." Professor Balkin himself sees in his Living Originalism approach as a real way to bring to fruition the goals of economic justice that undergird that Occupy idea for economic justice. University of Texas law professor Sandy Levinson has an audacious idea of constitutional optimism—a constitutional convention. Yale law professor Bruce Ackerman's theory of constitutional moments might also offer solutions to consider for the Occupy movement.
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In a 2007 interview with Bill Moyers, Professor Levinson discussed his ideas:
BILL MOYERS: Let me play back to you one of your own thought experiments that you described in the book. "Imagine that the United States Constitution contained a provision whereby every 20 years, the electorate could vote for a new Constitutional convention that would assess the Constitution, and recommend changes." If this were such a year, would you, Sanford Levinson, vote in favor of a new convention?Interestingly, I see this as a strong argument against a constitutional convention, as I told Professor Levinson at the conference. He had additional thoughts in defense of the idea, and I am no doubt giving them short shrift.
SANFORD LEVINSON: Oh, of course I would.
BILL MOYERS; But wouldn't you be opening a Pandora's box? Wouldn't you be risking losing some of the tested safeguards that have developed through 200 years of more or our own Constitution?
SANFORD LEVINSON: Well, since this is the most often asked question, especially by friends and members of my family, I have an answer to it. And I'm not so fearful, for a number of different reasons. First of all, how would I choose members of the convention? My answer is to go back to ancient Greece, or to look at the way we choose juries. And I would have 700 or so of our fellow citizens chosen at random. Meet for two years, pay them the salary for those two years of a Justice of Supreme Court, United States Senator, because they would be fulfilling the highest possible function of citizenship. Give them time to reflect and learn about these issues.
And one of the things they would learn is if they insisted say, on whatev-- what is everybody's worst nightmare, getting rid of the Bill of Rights, or any of the other really hot button issues. Then one of the things you learn if you look at the roughly 220 state Constitutional conventions that have been held over our history, is that those attempts at reform fail. You may recall that Texas tried to reform its Constitution in 1972, I think it was. I think it's fair to say that most Texans of all political persuasions believe that the reconstruction era Constitution needs some reform.
What brought down the reform? It's easy. Big business couldn't resist the temptation to put a right to work provision in the Constitution. So that led labor unions, in turn, to vote against the new Constitution. And then there were other people who say, "If it ain't broke, don't fix it." Or, "If it's good enough for grandpa, it's good enough for me." Or they might not have liked some other feature. So the only way you would ever get significant change, is if you convince people across the political spectrum. Then, I think, you might be able to imagine these being approved in the ratification process.
If, on the other hand, you had a convention taken over by single issue zealots, whatever the single issue is, then the most likely thing is that the convention would just break down. People would simply start shouting at one another. And then it would never be ratified.
However, I think the thought experiment of what a modern, progressive constitution would look like is of great value to the Occupy movement specifically and to progressives generally.
As I state, I am a "constitutional dreadist," but there is no doubt that our system of government is suffering systemic failure, and some serious rethinking is in order (and it requires, in my view, more than just "eliminate the filibuster" type thinking).
What would an Occupy constitution look like? It's a worthy question. One the answer to might help us make headway in our daily fight for progressive values.
Any proposals out there? I'll offer some of my own in Part 2 next week. I wll also explore how the ideas of Professors Balkin and Ackerman can be incorporated into the fight for a a progressive Constitution.