Constitution in 2020 Liveblog Panel 5- Individual Rights

October 3rd, 2009

2:15 – 4:15   Individual Rights
Moderator:  Dan Kahan, Yale Law School
Panelists:  Elizabeth Emens, Columbia Law School; Rich Garnett, Notre Dame Law School; Paul Horwitz, University of Alabama School of Law; and Alice Ristroph, Seton Hall University School of Law

My comments in blue

Elizabeth Emens

Need to breath fresh life into ways of thinking about discrimination.Focus on small “c” constitutionalism. Focus on “disability” under ADA to understand discrimination. Three areas- discrimination, identity, and remedies.

With disability, no bad actors, but exclusion. E.g., Before ADA, building owners did not need to worry about building ramps.

Rich Garnett

Doesn’t want to be seen as the view from the other side. His proposal coheres well with the views of his ACS counteparts.

Proposal: need to better incorporat einto constitutional law debate of appreciation of roles and rights of religious institutions.

Discusses Balkin’s infrastructure of freedom of expression. Encourages developments of certain institutions- newspapers, libraries, etc. Plays role in civil society to allow individual freedoms of expression to be well exercised. These are conduits and scaffolding of civil society to allow free institutions to exist

Compares religious freedom to freedom of speech. Religion protected by institutions.

Infrastructure of religious freedom. Religious institutions shore up and facilitate religious conscience. Self-governing religious institutions provide the social ambasure of the social order where the individual human person can be secure in all places.

Paul Horwitz

First amendment institutions, what role they play in rethinking 1st amendment for 2020.

2020 is the wrong date for thinking about rethinking the constitution. Neither close enough to be within practical reach, or remote enough to imagine ourselves free to interpret the constitution.

How do we define institutions? What should the scope of their autonomy be? (e.g., Bob Jones, Boy Scouts case)

Alice Ristroph

To think about individual rights think about the individual creatures. Talk about violence in criminal justice system. Humans form governments to achieve physical security. Constitution will establishing governments to adjudicate conflicts peacefully, protect individuals from physical harm.

Three ways Constitution can regulate violence

1. 4th amendment prevents seizures, stops police contact, but cases does not support this

2. 4th amendment also governs use of force- pain, bruises, use of force that harms people, but court uses reasonable standard

3. 8th amendment cruel and unusual punishment- 8th has done some work in cpaital punishment, but not in the prison

Also use anti-discrimination norms of the Constitution to prevent violence, but Ristroph does not think this approach is strong enough.

Anti-violence norm in Constitution. Is there counter-majoritarian imitation? Not prepared to dismiss judicial review as quaint and obsolete.

Focus on Ulysses and the Sirens image. The constitution is a source of security and dangers that exist. Tie himself to mast. Safety in constitutionalism. Danger of departing from constitutional norms. Constitution is not a suicide pact. Must yield to security.

The constitution is risky and poses restraints on what we would do to keep ourselves safe.


Elizabeth Emens(not sure), Rich Garnett, Paul Horwitz, Alice Ristroph (Left to Right)


Ilya Somin, who is a big fan of public subsidies for the construction of the New Yankee Stadium

War on drugs, lage number of non-violent drug offenders in prisons, aggressive police tactics used in war on drugs, victimless crimes. Ilya does not want war on drugs in 2020. Amen.

Garnett- “orgy of over-criminalization.”

My observations

It almost seems like the panelists want to achieve some end, and they flip through the Constitution trying to find something, anything to justify her beliefs. This seems backwards. Shouldn’t the text of the constitution inform what the law is? I do not have a political science or philosophy background, but I would imagine if this conference was entitled Political Science in 2020 or Philosophy in 2020, there would not be much of a difference. These scholars are creating brilliant theories of society, government, policy and then as a footnote, try to make portions of the Constitution support it. This troubles me in a sense. All of their concerns are valid from a policy standpoint, but from a legal standpoint I don’t get it. Or maybe, I am too naive in thinking the law has a form. Is being a formalist just foolish? If the law does not have a form, then the law is whatever smart people say it is. If that’s the case, why hide behind the veneer of a written constitution? All this talk of “norms,” “constructs,” and “infrastructures” seem like talismanic incantations of juristic concepts, but ostensibly serve as a fig leafs for the authors idea of what is right and what is wrong.