Friday, December 2, 2011

There were three main points to take away from yesterday’s event at the Brookings Institute titled, “The Conservative Legal Movement and the Future of Liberal Jurisprudence.”

(1)   Liberals need to focus on law and economics if they want to take the jurisprudential fight where it matters
(2)   Liberals need a substantive message to respond to conservative jurisprudence
(3)   Liberals need to commandeer the conservative stronghold on originalism and textualism

All quotes are approximations. I can write fast, but these will be more accurate after Brookings has posted a transcript of the event.

(1) Liberals need to focus on law and economics if they want to take the jurisprudential fight where it matters

Noah Feldman opened the conference by assuaging the fears of staunch liberals in the crowd – no, conservatives are not on a fixed path towards overturning the great successes from the Earl Warren era. No one is going to argue against Brown v. Board, Scalia has publicly expressed skepticism that an anti-gay rights argument would get 5 votes on the Court, and Miranda can’t be overturned because, as the late Chief Justice Rehnquist said, “people know about it from television.”

There have been successes for the conservatives, however, the most valuable of which are limiting the ability of the government to regulate the marketplace.  Referencing Charles Francis Adams, Feldman warned that liberal jurisprudence needed to focus on cases that increased capital influence on government. It hasn't because corporate cases are too often couched in first amendment terms. (Even the ACLU filed a brief supporting Citizens United in the lower courts because it was viewed as a free speech case.)

In the first panel, Pamela Karlan jumped on this, “Free speech is the new Lochner.”

("Lochner" here refers to Lochner v. New York, a case epitomizing the pro-contract, anti-regulation spirit that had a hold on the Supreme Court in the 1800s and very early 1900s. The Court ruled that the government could not step in to regulate the market, even when it was obviously in the best interest of the people.)

There are many strong arguments made that the Court is currently ruling in a pro-business fashion on cases involving consumer information, class action suits, and (most notably) campaign finance. Many of these decisions have also expanded first amendment principles of speech.

But liberals need more than an issue-by-issue counterpoint, William Forbath argued. It’s not enough for liberals to adjudicate corporate free speech cases, there has to be a substantive vision for liberals to garner widespread support.

In the second panel, William Forbath stated, “liberals have forgotten how to think about the Constitution in terms of daily economic life.  Conservatives win because they have a bold and likeable narrative about what kind of American life is set forth in the Constitution.”

When the Tea Party argues that the Constitution talks about a life where the government keeps its greedy paws out of the marketplace, and businesses are free to flourish, liberals must respond with a more thorough iteration of their own conceptions. Instead of hand-picking progressive causes (environmental regulation, consumer protection, civil rights), liberals need to form their own comprehensive narrative.

Although it might be accurate to say ‘it’s all just too vague to tell, even the framers didn’t know what the Constitution meant,’ to fight an ideological battle liberals have to be willing to present their projection of the Constitution’s intended society.

And that is an excellent transition point for tomorrow’s discussion on point #2.

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