Archive | American Constitution Society

Upcoming Debate on the Constitutionality of the Individual Mandate

For those who may be interested, I will be debating the constitutionality of the Obama health care plan individual mandate with Simon Lazarus of the National Senior Citizens’ Law Center on Tuesday night at 7 PM. The debate will be held at the George Mason University Arlington campus, in Founders Hall, Room 134. The debate is sponsored by the American Constitution Society (the liberal counterpart to the Federalist Society), and is open to the public as well as George Mason students. [...]

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Is Originalism for Progressives?

In remarks at this weekend’s annual convention, American Constitution Society executive director Caroline Fredrickson reportedly characterized originalism as a “choking weed,” part of a “noxious brew” of ideology promoted by the Federalist Society.  Was this remark a categorical rejection of originalism, or simply a rejection of those modes of originalism employed by conservatives?  Her reported remarks sound like the former, and yet this interpretation would imply a rejection of many important progressive legal scholars who have taken up the originalist mantle.

Without doubt, originalism is more often associated with conservatives than liberals.  Yet originalism has been championed by libertarians, such as our own Randy Barnett, and progressives, such as Yale’s Jack Balkin and Akhil Amar.  Balkin, who spoke at this year’s ACS conference and co-edited the ACS-sponsored book The Constitution in 2020, has argued on his blog that originalism is for progressives (drawing upon the work of Douglas Kendall of the progressive Constitutional Accountability Center and the University of Virginia’s James Ryan), and much his recent work  (see, e.g., here and here) has sought to make originalism a progressive force in constitutional law.  So the question is whether originalism itself is a “choking weed,” or just when practiced by conservatives.

Note: For a somewhat related post on some of the differences between the Federalist Society and ACS see here. [...]

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Climate Policy Panel at ACS

On Saturday I participated in a panel on climate change policy, “Environmental Protection in a Climate of Change,” at the American Constitution Society’s National Convention in Washington, D.C.  In addition to yours truly the panel featured Vicki Arroyo of the Georgetown Climate Center, Interior Department Deputy Solicitor Rachel Jacobson, and Andrew Light of the Center for American Progress.  Georgetown’s Lisa Heinzerling, who is currently serving as Associate Administrator of the Environmental Protection Agency for the Office of Policy, Economics, and Innovation moderated.  Those hoping for fireworks or a fierce debate were likely disappointed, but I think the panel was informative and (I hope) insightful.  The video is available here.  Additional thoughts on the panel are below the jump. [...]

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FedSoc v. ACS

After live-blogging much of the American Constitution Society’s annual convention, Josh Blackman says he sensed a difference  in “tone” from Federalist Society conferences, particularly from the leadership.  While I am not sure that the difference is quite that which he identifies (I’ve heard my share of polemics at Federalist Society gatherings), the differences are real and go much beyond the two organizations’ respective ideologies.  I also find these differences quite interesting as ACS was created as a counterweight to the Federalist Society.

Before getting to the differences, let me note that the ACS annual conference and Federalist Society lawyersconvention are very similar.  As Orin reported a few years back, both are high-quality, substantive legal conferences featuring panels of legal luminaries that tilt in the direction of each group’s ideological core.  (For a report on the first ACS convention, see here.)  Over time, the ACS convention has become more balanced, or at least more inclusive of conservative and libertarian views, and has also developed its own roster of “stars.”  Those interested in legal policy questions could learn quite a bit from either event.  But the similarities are not as interesting to consider, so that’s enough of that.  On to the differences! [...]

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Live-Blogging ACS

Josh Blackman is live-blogging the American Constitution Society national convention at his blog.  Alas, he won’t be covering my panel (Orin’s is more interesting I suppose), so I may have to live blog that myself.

UPDATE: Josh Blackman’s coverage of Randy Barnett’s debate with Jack Balkin on the constitutionality of the individual mandate is here (including a wee bit of commentary from yours truly as well). [...]

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Elena Kagan: “I LOVE the Federalist Society! I LOVE the Federalist Society!”

Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:

In February 2005 the student branch of the Federalist Society (a group founded in the early ’80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.

Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, “”You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer.

On the night of Fried’s story, in a very large banquet room I was sitting next to Frank Easterbrook, perhaps 15 or 20 feet from Elena Kagan. She began her welcome by booming out:

“I LOVE the Federalist Society!”

Kagan paused for emphasis and then repeated,

“I LOVE the Federalist Society!”

As I recall, after applause Kagan’s next line was:

“But, you know, you are not my people.”

The crowd indeed loved it. But without Kagan’s opening lines, Fried’s affectionate account in the New Republic makes little sense.

Kagan then went on to explain why she loved the Federalist Society — chiefly, its contributions to the intellectual lives of American law schools and its commitment to open debate. She talked about [...]

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