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August 03, 2005

American Constitution Society and Legal Liberalism

So I spent last weekend at the American Constitution Society's annual convention, and I'm just getting to writing up my reactions.

Partly the delay is digesting what I want to say about the state of legal liberalism as represented by ACS. 

The first thing to say is that there is a lot of brilliance there.  The speeches and analysis at both plenary sessions and breakout panels on specific issues clearly dissected the danger and hypocrisies of the conservative ideologies taking over our courts today. 

But what struck me is the intense conservatism of what was said over the weekend, not in the political sense, but in the impulse to conserve past legal gains.  In some ways, that's appealing to me on the constitutional level, since I think the courts have innovated too much and we need to focus far more heavily on legislative changes rather than new constitutional arguments.  

The Courts versus the Legislature: Yet there was remarkably little discussion of strategies for effecting statutory changes, with far more discussion of how decisions on constitutional law might effect the next round of litigation challenges.

Partly this is a function of ACS's decision not to engage in lobbying or endorsing legislation.   The organization as a whole can discuss what kind of constitutional framework they want for our society without crossing any lines into being a lobby group, but if they discuss the fine points of legislative strategy, not only might they feel they were drifting over the IRS-defined lines into advocacy, the natural impulse of organizational members would be to want to push over those lines into action.

Partly the hope is that all the existing non-profits have such legislative work in hand, so all they need is a supportive intellectual framework by ACS members.  But the problem is that the progressive side is too divided into issue-specific bailiwicks.  Each group does wonderful work and even create some good coalitions for joint action, but what is lacking are the mult-issue membership networks to hammer out an integrated progressive program.

If I had my druthers, ACS members would be worrying less about the Constitution in the 21st Century, the official centerpiece of ACS work, and instead make helping to hammer out a legislative strategy for 2010 the priority.  This is a task that the concentrated talent of ACS members could contribute to tremendously. 

Hopefully, these legislative changes will come out of the discussions of the longterm constitutional working groups, but I was a bit discouraged that economic and workers rights had so little role in the issue groups organized, largely because the Constitution has never had much sympathy for economic claims.  Those have always been won at the ballot box, not at the court house.

Split Legal Consciousness: Maybe it's symbolic that Joe Biden gave one of the key speeches at the Convention.  Biden has wonderful things to say on the constitutional rights of women and other groups and gave an outstanding speech on how we want a legal system that doesn't support the powerful against the powerless.  Yet he's the same Biden who led the fight to pass the recent bankruptcy law that will harm working class consumers to pad the profits of his home state credit card companies.  

This is unfortunately the mental split we see in a lot of progressive legislators, talking a good game on constitutional rights while undermining basic economic rights through their legislative actions.  And I think the failure of the progressive legal community to have a stronger analysis of legislative issues like bankruptcy law is one of the things that allow this split in purposes to persist.

I've been involved in ACS on and off since it's founding convention and I respect the incredible success the organization has had in reaching both law students and young lawyers and bringing them together into a strong progressive network.  Maybe just the intellectual space created by this network is enough of an accomplishment and I shouldn't be asking for more.

What We Need:  But I can't help it.   We need a real legislative program for progressive change, not just at the federal level but at the state and local level where progressive activists can really make social change.  But those activists on the ground need the legal help to make it happen and while individual non-profits can do some of that, it seems like a group like ACS could be doing the recruiting and organizing to provide that legislative support on a more constant basis.

That would demand a different orientation by the organization, so it won't happen in the short term.  But I do hope we see far more focus on the legal changes being driven through by the rightwing through legislation in future ACS conferences.  

It's the first step in taking ACS from the impressive organization it is today to one that could be in the forefront of crafting the needed progressive vision and strategy for the future.

Posted by Nathan at August 3, 2005 12:45 PM