The $80,000 misunderstanding

Yesterday Yale Law School grad (’00) Leah Mesfin wrote to alert us to this weekend’s doings at the law school. Leah noted that she’d started reading us in connection with our coverage of the Republican convention this past September. She wrote:

Recently I got an invitation from the YLS to register for an upcoming conference at YLS called “The Constitution in 2020.” Their plan is simple – they plan to congregate to produce a vision of what the Constitution should be for 2020 and then to colloborate on how to use their influence and judicial power to accomplish it. Their posts with their plans for the conference are here.

The Yale Daily News previewed the conference with a column by law student Nicholas Stephanopolous: “The route to a progressive constitution, with a stop in the Elm City.” The conference convened yesterday afternoon. Its Web site is here, with links to the conference schedule and panels.
We asked Little Trunk to take a break from her work on term papers to cover it. Hey, we’re curious about what our future holds in store for us. I don’t want to spoil the suspense, but I’m afraid the future envisioned at the conference leans more to Big Brother than to Alexander Hamilton. The conference site provides this description:

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 goal is to set forth a positive constitutional vision for tomorrow, rather than merely to respond to the crises of today.

The highlight of the conference yesterday was the “opening dialogue” panel featuring YLS Professor Bruce Ackerman (one of the confence organizers) and University of Chicago Law School Professor Cass Sunstein. Why no third panelist? There was no room for a third ego. Here are Little Trunk’s notes:

Sunstein:
–last time USNationalSecurity was threatened, Roosevelt gave greatest speech of 20th century
–with growth and change, political rights enshrined in Constitution are inadequate
–need economic support to make personal freedom possible. Need economic bill of rights.
–ingredients of Second Bill of Rights-only with these rights will we have security. Link experience of nation in Great Depression with experience at the hands of fascist powers
–four footnotes: Roosevelt’s emphasis on opportunity and security-long tradition of American political thought (back to Montesquieu)-states owe to every citizen a degree of subsistence
–Mont. aligned with John Locke, Lockean Proviso, James Madison, Thomas Jefferson, 40 acres and a mule, FDR
–2nd BoR made possible by attack on distinction between negative and positive rights-effort to separate them is unfit for the American legal framework
–property is a creation of law-a positive right-creates affirmative guarantees. This is a matter of fact, not normative of value statement. Capitalist economy necessarily requires positive rights
–property rights could not exist without government protection. Individualism bolstered, not destroyed, by gov’t intervention
–international impact of R’s speech-influence universal declaration of human rights, constitutions throughout the world (including Iraq)
–Roosevelt attacking Constitution of 1910, 1920, 1930–thought this was terrible constitutional law. Did not favor return to narrowly construed judgments of those who drafted the Constitution
–Also eschewed perfectionism embodied by the Warren Court-seizing on ambiguous clauses to enumerate rights
–time for a Frankfurter revival-general deference to political process, evolutionary character of constitutional law, has a common law element to it
–punchline: by 2020, it’s going to be about time for the second bill of rights to be reclaimed in its nation of origin
Ackerman:
–task of every generation is to create institutional structures which express fundamental liberal commitments
–question is whether we should simply have our vision monopolized by second BoR or whether we have something new to add
–add “citizenship agenda” to Roosevelt’s vision. Roosevelt concerned with vulnerability. Can we build liberalism for the active/dynamic in our society? How to do that? How to recreate notion of democratic citizenship that we have in common?
–first: idea of political citizenship. Has eroded (the draft, the political party)-design institutions that will allow us to assert interactive citizenship
–idea: $ for voting-give $ to whichever candidate people choose-this would encourage people to talk. We would have block parties to discuss this. “Patriot Dollars”
–people really are ignorant but are tremendously good learners-one day’s discussion motivates ppl to find out things-causes 10 percentage point shift in opinion-national holiday called
“Deliberation Day” two weeks before the election. This would force pols to redistribute sound bites-creates an interest for politicians to offer more.
–economic citizenship-stakeholder society in which every young adult gets a form of citizen inheritance of $80,000 funded by a wealth tax of 2% over $450,000-every American citizen would have $80,000. This has been adopted by Tony Blair-every baby born in England now has this.
–vision here is a citizenship agenda which crates a context in which people think of themselves as American citizens who have a real role shaping the agenda, talking about it, have a stake in America as a citizen-preliminary to rehabilitation of privileges of 14th Amendment which has never been redeemed.
–fundamental task is to generate institutional structures to fortify the Progressive tradition.
Sunstein:
–distinguish Constitution of 2020 as elaborated by Supreme Court from the nation’s commitments in 2020 (social security, deliberation day, etc) from what would be good in 2020 which is less fundamental (more funding for Head Start)-helps to keep in mind these three different categories.
–greatest moral failure of Bush administration was its neglect of multiple sides of insecurity-opportunity it really had post-9/11
–opposing idea: citizenship. On the one hand, citizenship is inimical to personal security/private property
–citizenship agenda contradicts security agenda
–Earned income tax credit is great (as opposed to minimum wage)
–between now and 2020 emphasize security rather than citizenship
–another disagreement: no ambitious judicial elaboration of privileges and immunities clause-would be bad for people who need help, good for people who really don’t.
Ackerman:
–opportunity idea vs. safetynet idea-of course he’s in favor of safety nets
–wants REAL opportunity-that’s what stakeholding is about
–appeals to everybody as an American citizen-that’s what Bush’s ownership rhetoric suggests but we know the reality of it
–fundamental weakness of a market economy is the effort by the rich to pass on wealth to next generation-1% of people own 40% of wealth in this country
–not against private inheritance, but for citizenship inheritance
–we need tools for citizenship-need common sites for conversation integrated into system
–these are just exemplary proposals
–idea of recapturing concept that national citizenship has privileges-we need to make this a reality-cure disenfranchisement for felons
–court’s elaboration of national citizenship will produce good policies
Sunstein:
–inexplicable power of Obama’s speech at DNC Convention-why? Conception of common citizenship
–when an Arab-American’s freedom is attack our liberty is under attacked-not red and blue states but United States
–gives automatic identification to people we are tempted to think of as “others”
–Justice Jackson: when we invoke the EP clause we broaden the class of people to whom barrier applies, political classes kick in-Lawrence is not about others, but about everyone.
–Obama was doing this psychologically by singling out bracketable others-we’re all hurt when they’re hurt
–national citizenship could have untoward results-forbids minimum wage law or maximum hour law-presence of a powerful view that has reached the White House that the real constitution has been lost-the pre-Roosevelt constitution. Roosevelt’s conception is considered constitutionally troubling by the Bush administration
–beauty of R’s 2nd BR is its concreteness-right to education, etc
Ackerman:
–one great advantage of citizenship strategy is that it is national
–idea of a national citizenship is powerful and underdeveloped legal resource
–liberals-“we”-are at the Barry Goldwater point. Trying to figure out what progressive constitutionalism should mean for our time. Best we can hope for from SC in the short term is not an adventurous spirit. What constitutional vocabularies can be used/abused? Which ones really say something that is important for us?
–all visions have dark sides as well. Obvious disadvantage of citizenship is non-citizens.
–concrete stuff-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. Housing dollars is not good though. Too much black markets-people should be able to decide how much they’ll allocate to housing, education, etc.
–social security is money too.
–need to give each American a piece of the commonwealth
–subsidizing students is to the disadvantage of people who are capable of operating without two degrees-these are the people we have lost to Republicans. Not the very poor, but the middle class, ordinary people
Sunstein:
–notion that every child should get $80,000 should not be part of literal constitution–judicially elaborated constitution
–should also not be part our national commitments. Open to possibility that it might be good, but it has a bit of a Rube-Goldberg contraption-y quality to it
–on the common cause, Sunstein is trying to say Roe should not be the symbol for progressive. They should think about Katzenbach v. Morgan, West Coast Hotel, awfulness of the ADA, Age Discrimination Act, SC should not have struck down VAWA or any affirmative action without giving thought to the 14th Amendment
–1st Amendment is becoming the place where laissez faire views are being constitutionalized-Justice Thomas says that commercial advertising should be treated as political speech. That is an astounding development.
–campaign finance is in constitutional jeopardy
–FCC is under constitutional assault by dozens of think-tanks and organizations. Want constitutional renovation in the image of the extreme wing of the Republican Party.
–1st Amendment should be seen historically and evaluatively, not as an embodiment of the University of Chicago’s economics department
Ackerman:
–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.

We hope to be back with more on today’s proceedings later.
UPDATE: At Little Green Footballs, Charles Johnson points out that one of the movers behind the conference is none other than George Soros: “Yale’s brave new constitution.”

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