The Soros-funded conference on the Constitution in 2020 continued at Yale Law School yesterday. Our first report introduced the conference and covered Friday's proceedings: "The $80,000 misunderstanding." The full conference schedule is available here.

Yesterday morning the panel on social and economic inequality included Georgetown Law Professor Robin West, Stanford Law Professor Richard Ford and others. We were unable to compensate our conference reporter sufficiently to preclude boredom from inducing an early exit, reflected here in the conclusion of the notes with Ford's remarks:

Robin West
--does Equal Protection clause have relevance to progressive cause? Born out of struggle of enslaved laborers
--inconsistent with state that does little or nothing about social and economic inequalities
--implies the existence of positive welfare rights—education, police protection, healthcare, childcare, etc
--14th Amendment delegitimates social and economic inequality
--only legislative constitution can be read as implying equality supportive of progressive goals
--progressive lawyers must attend to development of this constitution and jurisprudence needed to support it
--is constitution’s guarantee of equality supportive of positive welfare rights? Courts have never come close to holding this
--EP of law means legislators must treat likes groups alike
--EP from law, not of law
--evil from which ppl need constitutional protection is law
--citizen to be protected against pernicious laws and lawmakers
--EP has meant very little—as a weapon for combating poverty itself, this is grotesquely illusory
--poverty is legitimated and even constitutionally protect (Darwinian friction of life)
--why has court embraced only this limited understanding? Courts have not made a doctrinal mistake…they are drawn to formal rather than substantive understandings of equality b/c it runs deep in their DNA—perfectly mirrors judicial understanding of stare decisis, need to maintain continuity
--this is a judicial understanding of equality
--consequence of this is fatal to affirmative welfare rights—constitution cannot be tied to any substantive theory of the good
--EP clause means a promise of rationality—legislator is a mini-judge—this does nothing for welfare
--EP clause morally emasculates the legislator as an agent of effective change
--it is an obstacle, not a vehicle of progressive politics
--legislative constitution…imagine an idealized legislator
--for a legislator the constitution carries a simple command—ensure EP of the law…sovereign must act to protect the wellbeing of all through implementation of positive welfare rights
--legislator acts to change the status quo—ought to realize he needs to work toward the protection of all citizens (unlike the judge…legislators have more power than judges in this realm)
--such a legislator might be persuaded that evils that warrant protection include unbridled capitalism
--substantive understanding of 14th Amendment is more suited to the legislator than to the judge. Legislators must protect against all harms we have identified. EP clause not about protecting people from discriminatory laws but the means for protecting people from various harms
--we need to develop argument that constitution requires this type of legislative response (protect vs. winner take all economy)
--we have not worked to stop slide into oligarchy b/c we have not embraced this interpretation of the 14th Amendment
--ACS needs to develop this distinct jurisprudence needed to support legislative constitution
--progressive hope of more equal, less treacherous world
--platform of American Constitution Society should become a matter of common sense

Richard Ford
--two concerns of the panel: social equality (civil rights) and economic equality (redistribution of resources)
--problems of black urban underclass
--isolated from mainstream society—ghettoized minorities suffer
--have trouble favorably impressing employers—leads to employment discrimination
--ghetto subculture different from cultural of ancestral homeland
--this type of segregation divides cities from suburbs—reinforces ghetto neighborhood politics
--these conditions are perpetuated by public policies—exclusionary zoning
--any significant durable successes by 2020 are dubious
--Rodriguez came out wrong
--EP legislation is as likely to reverse gains in realm of equality as it is to advance them

We'll take Professor Ford's note of pessimism as the good news of the day. The conference continued with a "conversation" among former Clinton administration Solicitor General Walter Dellinger (moderator), Stanford Law Professor Kathleen Sullivan, former Clinton poltical operative John Podesta, attorney David Boies and NAACP general counsel Theodore Sullivan. Here we're really hitting the Progressive motherlode:

Walter Dellinger
--Richard Epstein vs. Scalia. What is the true conservative view of judicial power? Scalia argues judicial restraint. Epstein says activism and support of constitutional protection of contracts and property.
--Warren court was not the activist court we believe it to be (civil rights, criminal procedure)
--control of a person’s inner life is a totalitarian principle—Roe is a fully defensible position and one which recognizes that any compromises in terms of regulation compromises reproductive choice
--most lasting legacy of Rehnquist court will be judicial supremacy
--supremacy masked by the fact that its politics are relatively moderate
--aspirational constitution?
--incarceration—we should emphasize drug users not suppliers. The reason we emphasize suppliers is b/c they are black.
--are liberals now for states’ rights b/c of Massachusetts?
--point out to the courts that states that do progressive things are also states. Michigan, like Alabama, is a state. Principle was true in Boy Scouts vs. Dale.

Kathleen Sullivan
--courts are good
--liberals should not discredit courts to battle conservative judicial activism
--Goodrich decision did not cause Bush to win the election
--we should declare homosexuality a religion—affirmative action, formal public subsidies
--courts protect gay men and lesbians—minorities
--courts are also important in restraining executive power
--judges have checked precedents in war on terror
--if you give up on the courts in favor of the congress, you get the Patriot Act (oh no).
--courts can restrain the executive in ways that congress can’t

John Podesta
--is there a danger in overreacting? Do we need strong executive for progressive accomplishments?
--progressive success has come from strong executive power

David Boies
--activism and restraint in judiciary comes from where you think judiciary is compared to the national legislature
--you will favor whichever is more liberal (if you are a liberal)
--Warren court was not an activist court
--movement to the right in the courts reflects move to the right on the political scene—if you lose the Congress and the presidency you are also going to lose the courts eventually
--major debates: individual rights vs. property rights—this tension is not going to go away. The courts have been on the side of individual rights are the result of judges who have been appointed by people who embrace that perspective
--executive is picking judges based on political orientation. Results in increasingly skewed judiciary—this is not a problem with the courts but with the way the judges have been selected. Problem is that legislature and executive and partisan

Theodore Shaw
--organization he represents has long-range goals
--has to keep in mind where he wants the law to be in 2020
--what tensions in 2020? Concerned about foundational precedents that will have an impact for years to come
--in Michigan case Justice O’Conner made mention of 25 years—deadline for which race will be off the table?
--should race be off the table in the current environment? NO. This would signal how deeply problematic our current discourse is. Race will not be off the table for a long time. Has always been the central dilemma in this country
--“original betrayal in constitutional convention”—abandoning race now would be tantamount to this (and to Tilden/Hayes compromise)
--we don’t have much choice than to believe deeply in the courts—where else do we turn? We=progressives

Mr. Shaw's assertion that "we" Progressives don't have much choice other than to believe ("deeply") in the courts contrasts instructively with the concerns on the minds of the representatives to the Constitutional Convention of 1787. Mr. Shaw's reference to the Constitutional Convention nevertheless provokes thought; it's a shame he didn't pause to reflect further on it. Reconciling democracy with freedom is indeed a challenge, one that the delegates to the Convention sought to meet through the "new science of politics" that resulted in the creation of three branches of government with limited powers. Mr. Shaw now opts for King George in black robes.

It is unfair to contrast the thought of any group of contemporary activists and intellectuals with the thought of those delegates to the Convention (click here for access to Madison's notes on the Convention or here for access to the exposition of the Constitution in the Federalist Papers). But one cannot help thinking with respect to many of the outrageous points made by the speakers at this conference, "what a falling off was there."

JOHN adds: Jack Kelly's column this morning is on a different subject, but these observations are pertinent: "Judicial imperialism has long been the last refuge of a political establishment that is on its way out." Kelly gives several examples, and concludes:

We're headed for another titanic battle between a religious populace and a secular elite, between the peoples' elected representatives and the courts. What is past isn't necessarily prologue, but it is comforting to note who won in the earlier confrontations.