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April 21, 2005

The Constitution In 2020 vs. Constitution In Exile: Got Red Herring?

It struck me as odd, Monday morning, to see Jeff Rosen madly flogging nebulous conspiracy theories in the NY Times Magazine. So odd, in fact, that I dropped everything and spent about an hour researching the issue. But in the end, I decided it was either a bad pint of Cherry Garcia, the upcoming battle over the filibuster, or the usual Progressive fear and loathing breaking out like a recurring rash.

So imagine my surprise when, via Dale Franks, I stumbled on a far more plausible explanation for Mr. Rosen's little foray into creative writing: he was laying down a distracting hail of covering fire. Interestingly, in contrast to the shadowy "constitution-in-exile" movement known to only a select few (membership is apparently so secret that even some of the party faithful go about their daily business blissfully unaware they belong to a conspiracy), the Yale chapter of the American Constitutional Society just held a very real conference called "The Constitution in 2020". Unlike meetings of the C-I-E movement held in dank basements where blood is drunk with clandestine relish from the purloined skulls of infants, attendance was open, notorious, and in-your-face. John Hinderaker, who sent a representative, reports:

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.

One of the major players at the conference was [oh be still, my beating heart!] none other than Cass Sunstein: he of the constitution-as-hostage theory. Mr. Sunstein wants to bring back something called FDR's Second Bill of Rights. This truly revolutionary document sets forth the following "positive" rights:

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education

And lest you think this was an isolated event, Bob Herbert seconded the motion in an editorial shortly thereafter.

To get a sense of just how radical Roosevelt was (compared with the politics of today), consider the State of the Union address he delivered from the White House on Jan. 11, 1944. He was already in declining health and, suffering from a cold, he gave the speech over the radio in the form of a fireside chat.

After talking about the war, which was still being fought on two fronts, the president offered what should have been recognized immediately for what it was, nothing less than a blueprint for the future of the United States. It was the clearest statement I've ever seen of the kind of nation the United States could have become in the years between the end of World War II and now.

Alas! Mr. Herbert is a virtuoso on the violin. What might have been, if only that pesky democratic process didn't keep getting in the way! Four presidential terms is such a short time to impose a vision of such...dare I say it... imperial majesty.

Hinderaker asks how these changes will be implemented. The Constitution provides for amendment by popular referendum, a thing the people have proven historically unwilling to do. This, obviously presents a problem for progressives, who have relied heavily on the courts and on judicial activism to accomplish what they cannot through the democratic process.

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.

In all fairness, I found a post by Cass Sunstein on the Constitution in 2020 blog which suggests Sunstein may not subscribe to this view:

For 2020, what should be asserted instead is a form of judicial minimalism, one that also gives the democratic process wide room to maneuver. The appropriate path is not charted by Roe v. Wade; it is charted instead by West Coast Hotel, upholding minimum wage legislation, and Katzenbach v. Morgan, allowing Congress to ban literacy tests. Moderates and liberals should not want the Supreme Court to march on the road marked out by the Warren Court. They should celebrate instead rulings that defer to Congress and that invalidate legislation rarely and only through narrow, unambitious rulings, akin to the Court's recent decision in the Hamdi case.
[...]
One qualification is that the United States does not only have a Constitution; it also has a set of constitutive commitments, beyond mere policies but without a formal constitutional status. Franklin Delano Roosevelt's Second Bill of Rights was an effort to establish several such commitments, including, above all, decent opportunity and minimal security. I will briefly discuss the value of seeing the Second Bill of Rights as part of the nation's self-definition in 2020 -- though not of seeing it as part of our formal constitution. The insistence on the Second Bill of Rights is best regarded as part of democratic deliberation, not as part of constitutional law.

Again, as I did not attend the conference, I have no idea what was said there. But I found his post at odds with the suggestion that FDR's Second Bill of Rights would be formally enshrined within the Constitution, at least in Sunstein's dreams.

At any rate, I find it remarkable that there so little discussion of this truly revolutionary movement to resurrect such a radical change in Constitutional law, at the expense of an admittedly shadowy and speculative decades-old "constitution-in-exile" movement that may or may not exist (and no one has ever heard of).

Got red herring?

Update: more commentary on this topic at Vote for Judges and irritant #4


Posted by Cassandra at April 21, 2005 08:09 AM

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Comments

So long as I don't have to use it to cut down the mightiest tree in a forest so secret even those people who know where it is don't know they know where it is. :-)

Posted by: Masked Menace [TypeKey Profile Page] at April 21, 2005 11:22 AM

You do realize I have to kill you for making that comment, don't you?

If only I could find you...

Posted by: Cassandra [TypeKey Profile Page] at April 21, 2005 12:50 PM

And give back your decoder ring, dammitall.

Posted by: Cassandra [TypeKey Profile Page] at April 21, 2005 12:51 PM

*peeks out from behind tree*
Here I am!
*ducks behind tree*

*peeks out from behind different tree*
No, I'm over here
*ducks behind tree*

*peeks out from third tree*
BLAM!

Hey, no fair shooting me with a chok'lit goop gun. How do you expect me to hide when I'm leaving behind a trail of dripping chok'lit?

Posted by: Masked Menace [TypeKey Profile Page] at April 21, 2005 01:16 PM

Chocolate?

Well now you *have* sealed your fate.

Posted by: Cassandra [TypeKey Profile Page] at April 21, 2005 02:42 PM

I didn't know FDR was a religious follower of the Communist Manifesto.

And the next meeting of the Constitution-In-Exile committee is at my house.

Bring the guacamole.

Posted by: Purple Raider [TypeKey Profile Page] at April 21, 2005 06:57 PM

I'm all over it, Purple :) I'll bring dacquiris too.

Posted by: Cassandra [TypeKey Profile Page] at April 21, 2005 07:17 PM

Dacquiris? I would hope that a super secret club that I belong to but don't know it would drink something underground, like moonshine or bourbon. Of course, a margarita goes well with guacamole.

Posted by: KJ [TypeKey Profile Page] at April 21, 2005 09:35 PM

If you bring bourbon, KJ, don't try to bring something like Jim Beam.

This 1% ultra-snobby Repuggnican has very expensive taste.

Posted by: Purple Raider [TypeKey Profile Page] at April 22, 2005 09:11 AM

I really didn't have time yesterday to digest this post. But looking over it again this morning, I think that this is one of your best ever, Cass. I'll be chewing on this for a while.

Posted by: spd rdr [TypeKey Profile Page] at April 22, 2005 09:26 AM

MM: So long as I don't have to use it to cut down the mightiest tree in a forest so secret even those people who know where it is don't know they know where it is. :-)

Will this tree make a sound?

*ducking and running*

Cass, among the theorists who do believe in conspiracies to undermine the Constitution, this article is exactly what they fear.

How to subvert it.

Now, if you read the ten planks of the Manifesto,
how close have we come?

Just asking.

Posted by: La Femme Crickita [TypeKey Profile Page] at April 22, 2005 09:47 AM

Thank you spd.

I don't get excited about something very often. I actually read about this the day before yesterday but my head hurt too much to write. I wasn't terribly coherent yesterday either but I couldn't wait any longer.

I am pleased that you liked it.

Posted by: Cassandra [TypeKey Profile Page] at April 22, 2005 09:49 AM

I forgot to attribute the first paragraph in my comment to MM. Sorry. It is his, not mine.

Posted by: La Femme Crickita [TypeKey Profile Page] at April 22, 2005 09:49 AM

All fixed, Cricket :)

Posted by: Cassandra [TypeKey Profile Page] at April 22, 2005 09:53 AM

Don't worry MM. Jim Beam is for coke drinkers. I only pour Makers Mark (also an MM, eh) or Blantons in my house.

Posted by: KJ [TypeKey Profile Page] at April 22, 2005 10:49 AM

Damn. Speaking of which, the Kentucky Derby is coming up, and we always make mint juleps at our house with Makers Mark (in a silver cup, of course) for the Derby and everyone in the family draws horses names out of a hat, no matter where they are and we bet on the horses. I'm trying to decide whether we're going to the Gold Cup this year - didn't go last but I have to find out whether my mother in law will be back from Hilton Head in time.

So should we do the races here?

Posted by: Cassandra [TypeKey Profile Page] at April 22, 2005 10:59 AM

Cricket: It does make a sound, but it usually just says "Ewwwwwww, Ick" (icky, icky, sheboing, whip, *mumble, mumble*)

KJ: it was Purple who asked about the good bourbon, but I had been wondering about the bourbon connoisseur's distillery of choice. (Too darn cheap to go experimenting)

Posted by: Masked Menace [TypeKey Profile Page] at April 22, 2005 11:05 AM

So should we do the races here? - Cass

Why the helk not?

So what could we "bet" with?

Posted by: Masked Menace [TypeKey Profile Page] at April 22, 2005 11:10 AM

I'll have to think about that. If you guys can think of anything, let me know. I've already thought of one prize, but I don't know how exciting it would be.

The floor is open for suggestions.

Posted by: Cassandra [TypeKey Profile Page] at April 22, 2005 11:15 AM

Maybe we could have a range of prizes, depending on how much you bet (i.e., you have to bet a certain amount and win to get that prize)

Posted by: Cassandra [TypeKey Profile Page] at April 22, 2005 11:16 AM

Don't know about winning prizes, I'll have to think some more. But, maybe the worst loser has to provide a captionable picture of themselves for us to snark at?

Posted by: Masked Menace [TypeKey Profile Page] at April 22, 2005 11:25 AM

That might tend to keep people from entering at all. Although if you didn't put a time limit on the photos or didn't specify that your face had to be showing maybe people would pony up.

I would be willing to donate money to the charity of your choice (or my choice - even better :) in the winner's name. That's another option. I have some money put away and haven't plunked down a big donation in a while, so maybe I could do that.

Posted by: Cassandra [TypeKey Profile Page] at April 22, 2005 11:50 AM

I would give up a picture of myself, but I can't.

Camera lenses shatter anytime i get photographed.

Posted by: Purple Raider [TypeKey Profile Page] at April 22, 2005 12:54 PM

That's silly Purple. Mrs. Purple doesn't seem like a stupid woman and she's never mentioned being blind or anything.

It's a joke in my family how much I hate being photographed. My husband and I got into a fight about it when we went to Europe, my parents have a whole rafts of photos of me making faces at them or goofing in front of the camera with straws up my nostrils or other nonsense.

Every year I make myself do a few things I'm *really* afraid to do (not hard - you'd be surprised how many things scare me). That's why I put photos of myself up a few times this year - to get over my irrational hangup about it. It's stupid - it's not like really matters how you look anyway. I shook like a leaf the first time I did it, though. I don't know why.

And the funny thing is that I have gotten over it to some extent now. I think getting older helps - you don't have this romanticized vision of how you should look anymore. I guess when you're 45 you know no one's going to mistake you for Andie MacDowell. Now it's Helen Thomas I worry about.

Posted by: Cassandra [TypeKey Profile Page] at April 22, 2005 01:10 PM

OK, I'm in. Bet on the race? I bet that the first horse across the finish line...wins.


You may fire when ready, Gridley.

(Pre-emptive strike; have at it...)

Posted by: camojack [TypeKey Profile Page] at April 24, 2005 07:48 PM

BTW, excellent commentary...your "magnum opus", perhaps.

Posted by: camojack [TypeKey Profile Page] at April 24, 2005 07:50 PM

Thank you. That's very kind of you.

Posted by: Cassandra [TypeKey Profile Page] at April 24, 2005 08:52 PM

I have added a page on the topic of “The Constitution in Exile” at http://www.constitution.org/cons/exile/exile.htm . I also have a blog at http://constitutionalism.blogspot.com that you may enjoy visiting. Comments are welcome.

Posted by: Jon Roland at September 5, 2005 02:43 AM

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