Thursday, October 8, 2009

A libertarian Constitution in 2020 project?

I attended part of the Yale ACS conference with my beloved Pnin this past weekend. One of our friends, who was also present, live-blogged throughout. Paul Horwitz of Prawfsblawg put up an interesting response to his posts:

What struck me about the conference was that it was directed around a "project" (an oft-used term over the weekend) whose terms are still quite uncertain, and to which not everyone who served as a panelist had signed on. Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists. Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable. Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don't care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives.

I very much enjoyed the conversation among the panelists in category three, which although it leaned left was conducted in good faith and involved a variety of perspectives. The folks in category two, I would say, were probably well-positioned to talk to the folks in both category one and category three. But there was a serious gulf between the folks in category one and category three, even when they happened to share political perspectives, which wasn't always the case.

I haven't spent much time aside from this weekend in progressive circles, but I've seen similar tensions in the conservative and libertarian circles in which I do move. Well, I suppose there are fewer people who see themselves as pure social activists per the first category. Fed Soc conferences have beaten respect for the rule of law -- and hatred of activist judging -- into us too well for that. So even the public interest lawyer types I know, the "litigators for liberty," seem to imagine themselves as constructing a vision of libertarian constitutionalism that is both theoretically legitimate and politically saleable.

There's good and bad to having a lack of pure one types. I suspect there's more communication between academics and public interest lawyer types on the right. I think it's perhaps easier for us to imagine ourselves all engaged in a common enterprise of constructing a vision of libertarian constitutionalism that's both theoretically legitimate and politically saleable. On the bad side, I've sometimes felt ashamed of having any pure social activist impulses. I'm not sure that's quite right. Second, I fear that our hatred of activism makes it harder to be honest with ourselves about potential weaknesses in our theoretical arguments.

Finally, I shouldn't close a post on this topic without a plug for Steven Teles's Rise of the Conservative Legal Movement. It's a great resource for anyone who wants to understand the lawyers of the right.

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