Panel Four:
10:30 – 12:30 Constitutional Theory
Moderator and Commentator: Paul Kahn, Yale Law School
Panelists:  Jamal Greene, Columbia Law School; David Law, Washington University School of Law; Sophia Lee, University of Pennsylvania Law School; and Richard Primus, University of Michigan Law School

My comments in blue. I will be updating this post, refresh often.

Jamal Greene

Thanks the Regan OLC Constitution in 2020 for yielding this conference. He quotes from the Report. Few areas where Court ahs shifted in ways justified by Originalism. He thinks originalism’s contributions are largely immaterial.  Heller, Booker, Crawford, and a few other landmarks come to mind.

Originalism movement has been successful, but not by affecting constitutional democracy, but in validating the conservative politics. Originalism is a methodlogy and a symbolic langauge. Originalism dovetails nicely with conservative politics: Preservation of the past, homogeniety, Prosetantism, jurispathos. Originalist idiom that ties conservative political boundaries, and political commitments that find concrete expression to meaning of constitution. Originalism important buttress to politics, not generator of constitutional doctrine.

What should con law scholars be doing with their time? IF aim is to push a constitutional doctrine toward progressive political commitments, best way is not to promote a constitutional methodolgoy. Didn’t work for conservatives. Progressive shouldn’t do it. If you don’t have a constitutional methodology, what do you use? Evolving standards? Emanations and penumbras?

Progressive intellectuals should not think of what judges should do for them, but what they can do for judges. Dont expect judges to be foot soldiers. This continues the left’s trend away from relying on the (for the time being) conservative courts, and focusing on social change in the legislature. Privileges or immunities is gonna play some role in this.

Role for constitutional theorists is narrow.

Originalists are engaged in patricide. C2020 is a project of persuasion.

Sophia Lee

Move from ideas to institutions.

A constitutional theory that equal protection under 5th amendment provides equal employment. Checked my pocket constitution, still searching for equal protection clause in the 5th. Yes, I know, Bolling v. Sharpe 😉 DOJ lawyers considered this theory untested.

She contrasts the role of administrators and judges. The role of administrative agency’s to enforce constitutional law, through notice and comment.

Richard Primus

Constitutional lawyers are made to masquerade as historians. LOL.

Constitutional arguments always traffic in history, falls into 3 categories:

1. argument can be offered for positive authority- content of law today is because of things that happened in the past. For example, substantive due process- in due process, if firmly rooted in our traditions (Washington v. Glucksberg)

2. history as practical experience- are judges likely to get this right, is this policy going to be good. use history as social science. use comparative data from other countries and history of america. if worked before, will work now

3. history as national ethos- use ehtos as Hobbit- modality of constitutionality of arguments. Not moral history. Argument about character of America as a polity, American as people. We are the people who rebelled against an empire, fought a civil war against slavery. Value laden sense of constitutional order, dictates who we are. This is usually the most powerful to legitimate or persuade in constitutional form.

Constitutional arguments need powerful visions of ethical history to legitimate the argument.

If you control the authority, easier to win under the issues. Also, meaning of history is contested value in constitutional law. It is at stake. FIght about the history, care about it as a means, and and ends. History is repository of individualized meaning. Depending on normative constitutional meaning, would like Civil Rights or Reconstruction to mean this or that.

Primus did some field work after Heller and went to a gun range. He said he rented a gun and rented an ammunition. LOL, you don’t rent ammo.

Most important thing he learned, Mel Gibson’s the patriot plays on repeated loop on the video screens. The movie is a telling of ethical history of the founding from a particular point of view that dovetails with a particular take on the second amendment. American history means that, then everything follows for the second amendment. Want the history to mean that. Burning desire to rescue American history where it has gone wrong.But maybe story can be different. This is a compelling argument.

SLAUGHTERHOUSE!!!

If only we could reverse Slaughterhouse, bring back P/I, we can redeem reconstruction, and Plessy and Jim Crow can never happen.

Ethical history is complex. Functions of ethical history is to legitimate and persuade. Scholarship should respect complexity. Be skeptical when someone presents The History! Scholars should not masquerade. This mirrors Posner’s claim that historians have no role in originalism. Though I argue, courts rely on lots of other experts in antitrust, labor, forensics, statistics. Why are historians any different? I’ve written a bit about this before. I’ll blog about it again.

Primus was the star of this panel. Hands down. He’s Amar-esque.

David Law

C2020 needs to focus on the small C constituiton, not just the big C constitution signed by John Hancock. Umm… That’s the Declaration. Nevermind. Sorry for the snark. I’ve been pretty behaved. What exactly is a small c constitution?

C2020 needs to be comparative and international in its methodology and objective.

Cannot limit ourselves to what the Constitution does. Constitution is Janus faced- looks backward and forward/dyanmic.

We ask the constitution to carry the weight of our needs.

Constitutional theorists have interest in advancing constitutional worship.

“Foundation of this nation is not bedrock, but a green leafy plant to grow.” Huh? Is this some kind of Raich argument.

Small c constitution- law around economic and social law organizes. The law becomes difficult to uproot. APA and Civil Rights. Also EU treaty, Naft. Act becomes difficult to uproot. They are heavily entrenched by defending constituencies over time. Collapses the practical distinction between small c and large C constituitonal law. OK now I get the distinciton. This is similar to Ackerman’s landmark statute, and Eskridge’s super statutes. A constitution by other capitalization would smell as sweet?

Expand small c constitutional practices.

Would rather change the Judiciary Act of 1789 than appointing Justices.

What interests were the founders expanding? What kind of constitution would give us the country we want? How to get there without having to “jawbone” judges.

C2020 needs to be comparative and international in approach, methodology, and objective. The US Constitution in 2020 cannot just be about the US Constitution. Got it.

C2020 can advance global peace and democracy.

Don’t focus on judicial hermaneutics and originalism.

At a global level, C2020 needs to

1. articulate policy making mechanisms that are global in scope to consider positive and negative externalities.

2. People should have say in policy making. Elections are not only way to make democracy happen.

3. guiding principles to motivate policy making

Talking about his Canadian heritage. My only comment aboot that.

Paul Kahan

Cracked another death panel joke. Some facebook post there Sarah!

No one has a broad theory of the constitutional law.

Constitutional theory has moved from courts to social movements. I have heard this point made several times this weekend.

Originalism dominates. Progressive theory on the offensive to dismantle originalism. Originalism attractable politcally. Any counter-theory vulnerable to political attack.

Judicial nominees mindless repeat they will apply the law as it was written. I agree. Sotomayor made this point over and over again. I doubt she actually believes this.

Complexity doesn’t sell. The progressive theory is progressive.

Critique of originalism has morphed into critique of theory. Intellectual agenda shifted to the Right.

QUESTIONS

Ilya Somin

Talking about Barry Friedman’s book, role of the courts, angels dancing on a pin, and why the New York Yankees are the greatest baseball team and the Red Sox suck. j/k

Here is a link to Friedman’s article why SCOTUS is irrelevant. See also.

Primus- Barry Friedman is wrong. The Supreme Court does matter in certain circumstances to certain.

Discussion of the constitution inside and outside of the Court, with respect to legislative constitutionalism.

Neil Siegel

Do Justices worry about counter-majoritarian dilemma (from Bickel)?

Law- there is a gap between actual counter-majoritarian dilemma and what they consider a counter-majoritarian dilemma. Courts can’t let people see what happens when they do not follow the law.

Bruce Ackerman (no question here, just a soliloquy)

Law office history is flawed because it is selective.

One of the students was wearing this shirt. He explained that his small class group made t-shirts with Professor Paul Kahan as Che. And yes, he gave me his permission to post this pic to my blog. I did not capture his face.