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What Liberals Want

A progressive conference on the Constitution sheds light on the real stakes involved with the judiciary.

12:00 AM, Apr 19, 2005 • By JOHN HINDERAKER
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LAST WEEKEND, Yale's chapter of the American Constitutional Society sponsored a conference at Yale Law School titled "The Constitution in 2020." The stated purpose of the conference, at which some of America's best-known liberal law professors appeared, was to work toward a "progressive" consensus as to what the Constitution should provide for by the year 2020, and a strategy for how liberal lawyers and judges might bring such a constitutional regime into being.

The conference web site describes the event as follows:

It is time for progressives to set a constitutional agenda for the 21st Century. In 1987-88, the Reagan Justice Department produced a white paper known as "The Constitution in 2000" which, by taking a long view rather than focusing on the immediate issues of the day, was immensely successful in influencing the Constitution under which we now live. If progressives are to rehabilitate that Constitution, they must now, more than ever, articulate constitutional ideals capable of inspiring the next generation.

The conference organizers' reference to the Justice Department's 1988 report seems a bit odd, in that the stated purpose of that report was not to lay out a conservative agenda, but rather to identify key issues likely to arise over the following 12 years, and to "set forth the background and the likely parameters of the debate in as neutral and balanced a manner as possible." Moreover, the organizers' conviction that the Reagan Justice Department's report, whatever its purpose, was "immensely successful" in influencing constitutional jurisprudence in a conservative direction also seems dubious. To the extent that the issues identified by the 1988 report have been resolved, they have largely been resolved in favor of liberal positions.

None of this, however, discouraged the conference participants from staking out bold new constitutional ground. The tone was set in the "opening dialogue" between professors Bruce Ackerman and Cass Sunstein. Power Line sent one of our East Coast correspondents to sit in on the discussion. The conversation left no doubt about the "rights" that, according to these eminent liberals, should be constitutionally enshrined by the year 2020.

The touchstone is Franklin Roosevelt's "Second Bill of Rights," which would recognize a right to "a useful and remunerative job"; sufficient earnings to provide "adequate" food, clothing, and recreation; a "decent" home; a "good education"; and "adequate medical care and the opportunity to achieve and enjoy good health."

The essence of the progressive constitutional project is to recognize "positive" rights, not just "negative" rights, so that citizens are not only guaranteed freedom from specified forms of government interference, but also are guaranteed the receipt of specified economic benefits. The bottom line is that Congress would no longer have the discretion to decline to enact liberal policies. The triumph of the left would be constitutionally mandated. The following excerpts from the discussion, as recorded by our correspondent, illustrate its tone and content:

From Sunstein:

* With growth and change, political rights enshrined in Constitution are inadequate.

* Need economic bill of rights. Ingredients of Second Bill of Rights--Only with these rights will we have security.

* Long tradition of American political thought--states owe to every citizen a degree of subsistence. Second Bill of Rights made possible by attack on distinction between negative and positive rights. Effort to separate them is unfit for the American legal framework.

* Roosevelt . . . did not favor return to narrowly construed judgments of those who drafted the Constitution.

* By 2020, it's going to be about time for the Second Bill of Rights to be reclaimed. . . . Beauty of Roosevelt's Second Bill of Rights is its concreteness--right to education, etc.

From Ackerman:

* Task of every generation is to create institutional structures which express fundamental liberal commitments.

* [We need to] add "citizenship agenda" to Roosevelt's vision.

* Economic citizenship--stakeholder society in which every young adult gets a form of citizenship inheritance of $80,000, funded by a wealth tax . . .

* Vision here is a citizenship agenda . . . preliminary to rehabilitation of privileges of 14th Amendment which have never been redeemed.

* Idea of a national citizenship is powerful and underdeveloped legal resource . . . .concept that national citizenship has privileges--we need to make this a reality--cure disenfranchisement for felons.

SUNSTEIN AND ACKERMAN disagreed on some points, such as, for example, a constitutional right to housing. Ackerman said:

Well, public housing has failed. It's a mistake to declare the right to a home. Better way to do it is special purpose monies. Wallet of the future is a set of different monies--patriot dollars, health dollars--each with a different distributional value.

Ackerman concluded by articulating his key area of agreement with Sunstein:

We share the thought that the progressive vision of frameworks centers on the economy--needs to be constitutionalized in frameworks to make real the notion of a common citizenship.

ON THE SECOND DAY of the conference, a panel on "social and economic inequality" continued to sound the theme that the Constitution should require the enactment of liberal legislation. Participant Robin West said:

* Equal Protection clause is inconsistent with state that does little or nothing about social and economic inequalities. Implies the existence of positive welfare rights--education, police protection, healthcare, childcare, etc.

* 14th Amendment delegitimizes social and economic inequality.

* We need to develop argument that Constitution requires this type of legislative response (protect vs. winner take all economy).

The left makes no secret of its intentions where the Constitution is concerned. It wants to change it, in ways that have nothing to do with what the document actually says. It wants the Constitution to enshrine its own policy preferences--thus freeing it from the tiresome necessity of winning elections. And how will the Constitution be changed? Through a constitutional convention, or a vote of two-thirds of the state legislatures? Of course not. The whole problem, from the liberal perspective, is that they can't get democratically elected bodies to enact their agenda. As one of the Yale conference participants said: "We don't have much choice other than to believe deeply in the courts--where else do we turn?" The new, improved Constitution will come about through judicial re-interpretation. It only awaits, perhaps, the election of the next Democratic president.

IF THE IDEA OF A CONSTITUTIONAL RIGHT to government-funded child care, "adequate" recreation, and $80,000 in cash seems outlandish, remember that these concepts are no more eccentric than the idea of a right to abortion was, prior to Roe v. Wade. As a law school exercise in 1972, my class was charged with trying to formulate an argument for a constitutional right to abortion. We were stumped. None of us could think of one. A few months later, the "right" to abortion was born.

So Republicans are right to put top priority on the president's ability to get a vote on his judicial nominations. Liberal interest groups have flatly declared their intention to filibuster any nominee to the Supreme Court whom they regard as conservative. The stakes couldn't be higher.

John Hinderaker is a contributor to the blog Power Line and a contributing writer to The Daily Standard.