Tag Archives | Constitution in 2020

The State of Constitutional Theory on the Left and the Right

Participating 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 contributors to the Constitution in 2020 book and many of the participants in the conference are well-known liberal constitutional scholars. My dominant impression is that there is a great deal of consensus among left of center con law scholars about which way most important cases should come out, but much less agreement about why. If you look at the big constitutional issues facing the Supreme Court – federalism, property rights, criminal defendants’ rights, the death penalty, executive power in wartime, abortion, campaign finance – there is very little disagreement among liberal scholars about the question of what the Court should do; though there is some divergence about how fast the courts should go in getting from here to there.

On the other hand, there is a great deal of debate about the theoretical reasons justifying these preferred results. Big-name liberal constitutional law scholars range from originalists like Akhil Amar, to Bruce Ackerman’s “constitutional moment” approach, to “living Constitution” theories of various types (e.g. – Laurence Tribe), to representation-reinforcement theories (e.g. – the late John Hart Ely and those who have build on his ideas), to “judicial minimalism” (Cass Sunstein), and several other theories I won’t go through here. The Constitution in 2020 book and conference largely sidestepped these theoretical debates by focusing on preferred outcomes in particular issue areas. As Paul Kahn (a participant in the conference, but not a contributor to the book) put it, the Constitution in 2020 project seems to call for “less talk and more action.”

The state of affairs on the right is almost exactly the reverse of that on the left. With rare exceptions, most conservative and libertarian [...]

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My Talk at the Constitution in 2020 Conference

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. [...]

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