For those who are at Yale or in the New Haven area, tommorrow I will be speaking on the “Localism and Democracy” panel at the Constitution in 2020 conference. The organizers were kind enough to invite me to provide a measure of ideological balance to a conference that is — quite understandably — primarily devoted to considering the future of liberal constitutional theory. My panel will be at 4:30, and I will be appearing with Ernest Young (Duke), Rick Schragger (Virginia), Ethan Leib (UC Hastings), and Judith Resnik (Yale, author of the chapter on federalism in The Constitution in 2020 book). The theme of my talk is described in my post at the Constitution in 2020 Blog.
On a personal note, it will be a bit strange to give a talk in Yale Law School’s Room 127, a place where I spent so much time sitting on the other side of the podium, as a student.
erp says:
Give ‘em h*ll Ilya.
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October 2, 2009, 7:54 pmJon Roland says:
Give my regards to Bruce Ackerman. He is still trying to inject his proposal to pay a flat subsidy to every citizen, now up to $100,000/year. Given the way bailouts are going, why don’t you ask him why he doesn’t just propose $1 billion each, or even $1 trillion. I wouldn’t mind getting that much. Could use the paper for kindling, because that’s all it would be good for.
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October 2, 2009, 7:59 pmAnon21 says:
Prof. Somin,
Frankly, all the panel lineups for tomorrow look interesting, but I don’t think I can attend more than one, due to a memo assignment. I had been leaning towards the Individual Rights panel, but I haven’t decided. Perhaps I’ll see you at the Localism panel.
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October 2, 2009, 9:29 pmtroll_dc2 says:
After looking at what you wrote in the blog, I have come up with another argument in favor of healthy state-federal relations that you may not care for but that, given my policy preferences, makes sense to me. It is that well-run and fiscally strong states are as good a deterrent to federal tyranny as any militia/posse of gun-carrying citizens could be. The idea was put forth in a comment in the blog announcing that the Supremes had granted cert in McDonald v. City of Chicago that “One of the substantive reasons for the preservation of the right to bear arms was to guard against a tyrannical government and give the people the ability rise-up and overthrow tyranny. If that right is to have any meaning against a modern army, then the people need to have arms suitable to the task.” Deep in the comment thread, a number of posters discussed that observation. (Of course, I was outnumbered in rejecting the idea.) But even if the quote makes sense, would the people need to “rise up” if their state governments actively resist the federal tyrant?
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October 3, 2009, 7:47 amDeep Lurker says:
Yes. The States are not allowed to have “troops, or ships of war” without special Congressional permission. So they need a militia to resist instead.
The difference between “troops” and a “militia” — one of the distinguishing features of a militia vs other military or paramilitary forces — is that militias are armed only with such weapons that are legal and common for ordinary private citizens to possess. That’s the connection between the RKBA clause and the Militia clause in the Second Amendment. The militia needs to be well-armed enough to perform its functions, but not so well armed that it ceases to be a militia and becomes some other (and much more dangerous) sort of paramilitary force instead. To fulfill this, the government (both at the State and Federal level) need to respect a broad and general RKBA.
Another way militias block tyranny is by fulfilling the oft-overlooked militia function of law enforcement (“To provide for calling forth the Militia to execute the laws of the Union”). A police department that qualifies as a militia — members think of themselves as civilians, and are no better armed than ordinary private citizens — is relatively safe, even if it has lots of guns. A police department that’s more heavily militarized — armed with weapons prohibited or heavily restricted to ordinary private citizens — is a source of police brutality, misconduct, and corruption. For example, the Chicago police department.
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October 3, 2009, 8:40 amSuperSkeptic says:
It is that well-run and fiscally strong states are as good a deterrent to federal tyranny as any militia/posse of gun-carrying citizens could be.
I like it. I don’t think it’s as good, but I like it.
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October 3, 2009, 9:34 amdevil's advocate says:
[crossposted to Ilya’s abstract at constitution2020.org]
I had hoped to attend yesterday’s panel but events conspired to keep me on the Rhode Island side of the line. While your co-panelists are, as advertised, uniformly focused on the potential for federalism to advance progressive ends — I think their relatively honest embrace of the concept is noteworthy.
Nonetheless, I can’t help but focus on Ernest Young’s rose colored perception that progressives need not fear further erosion in personnel on the Supreme Court until 2016, or the irony of his highlighting Souter’s allegiance to localism as he returns to the polity that saluted his service on the high court with an attempt to seize his home.
This is certainly a potent opportunity to replay 2nd amendment and 5th amendment concerns that may be served by two-way federalism — the Federalist 51 theme that
In what are likely the two most popularly digested decisions of the court since Roe, the court split in different directions on those two questions. But I think we refight these wars regularly and I think this topic suitable to a more theoretical means oriented discourse than food fight over ends.
Having taken modest advantage of Ernest Young’s assumptions, I should also celebrate his recognition of the propriety that localism will not lead only to progressive ends, i.e. that Texas would lean rugged individualist to California’s rub-it-in environmentalist. There is also a salutory focus of several other of your co-panelists on localism within localism, i.e., on the influence of cities and towns as policy makers or as factions within the state decisionmaking process.
Surely Obama’s experience as a community organizer, emblematic of the progressive war on the ground, did not prepare him for the extent to which such organization might propagate amongst the disenfranchised conservative base. The tea parties teach that localism is a means not an end. I honestly wonder if progressives see themselves in this mirror or are taken in by the press that this is some kind of astroturf revolution.
While Ethan Leib recognizes the pullback from Roe, at least in the abstract, those who look to republican localism have more important targets: Reynolds v. Sims (progeny of Baker v. Carr ) and the renovation of Harlan’s vital dissents in these cases. To deny to the laboratories of democracy the very [Great] Compromise that forged the national political union is to throw sand in the gears of localism and per force to make the perceived will of urban throngs into the institutional judgment of the state.
Whether reflected in muncipalities suing California for more state aid, or bridling at unfunded mandates that make balancing budgets all but impossible, real localism is where the current political rubber is hitting the roads. The states generally have bought wallpaper to balance their budgets but the cities and towns have less sleight of hand available and are the most directly accountable to the voters in this regard. The laboratories of democracies concept is trickling down and states find their ordinarily more subordinate subdivisions not particularly sanguine in the present circumstances.
The time indeed is ripe for municipal federalism. I don’t view my embrace of Harlan’s dissents as an ends oriented gambit, but I do see it as recognizing the institutional interests of municipalities in the current budget balancing. To the extent that Baker and Reynolds actually excised archaic and unrepentant parochialism rooted literally in past centuries of practice that gave rise to existential equal protection problems, sobeit. The scale has been vastly shifted along populist lines leading to the present predicament of cities and towns that suggests that the cure has been little more than getting fooled again: “meet the new boss, same as the old boss”.
I would be the first to concede Burkian ends, nor do I come as a herald of some unchecked parochialism, which really is the sad invitation of Kelo. When the Naderite left and the Tea Parties are agreeing on the substance of concern with eminent domain, public development financing, ‘targeted’ tax breaks, etc., I think that establishing municipal federalism as a two-way street and given the current starting point, is not highly biased towards particular ends. A system that checks parochial excess that truly violates constitutional rights, but affords people the most notable result from participating in structuring the polity most accessible to them is the means for constitutional localism.
remaining curmudgeonly yours,
Brian
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October 4, 2009, 8:30 amThe Volokh Conspiracy » Blog Archive » The State of Constitutional Theory on the Left and the Right says:
[...] in the Constitution in 2020 conference at Yale this weekend gave me a chance to consider the state of constitutional theory on the left. The [...]