Dispatch from the American Constitution Society convention.

Notes from different corners of the world.
June 22 2009 2:28 PM

Et Tu, Scalia?

Dispatch from the American Constitution Society convention.

(Continued from Page 1)

"You guys are cowards!" goads former Bush Justice Department official Noel Francisco, leaning back and grinning from the dais. No one takes his bait.

If there's one area, beyond ideology, where ACS seeks to deliberately differentiate itself from the Federalist Society, it's in an institutional commitment to being nice. Keynote speakers were frequently praised as "thoughtful" and "committed"; awards were given out for work on behalf of the downtrodden. In her lunchtime address, Michigan Gov. Jennifer Granholm pleaded with judges to consider the fate of unemployed autoworkers, miming the motions of one man as he placed his hands on her shoulders, asking for help. The steely-eyed Elizabeth Warren, TARP overseer and Harvard Law luminary, pounded away at the need for Obama's planned Consumer Financial Protection Agency to look out for the interests of ordinary families. And Stanford Law School professor Pam Karlan—the wisecracking crowd favorite, resplendent in a boxy gold jacket—described a special place in Dante's hell for those who betray their convictions for profits. At the concluding banquet, Executive Director David Lyle thanked the Unite Here servers who staffed the convention—another union, SEIU, is an ACS contributor.

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But dedication is not an ideology, and communicating ACS's guiding philosophy to those same ordinary people they seek to serve proves much harder. The society's new manifesto, co-authored by Karlan and distributed to all conventioneers, takes the form of a 137-page book about reclaiming the Constitution for progressives. Reva Siegel and Jack Balkin of Yale Law School have edited another essay collection, called The Constitution in 2020—the mirror image of a Reagan-era conservative project—and they have come up with the concept of "democratic constitutionalism," emphasizing social movements and change through legislative, rather than judicial, means. These compendiums are publicly available but currently circulated to the membership and on Capitol Hill. Not much use in combating a deeply rooted public perception about judging that former ACS board Chair Paul Smith describes to me thusly: "The concepts are out there, so that your taxi driver might say, 'I don't think you should go beyond the original intent of the Constitution.' "

The six law professors at Siegel and Balkin's panel on how liberals should talk about the Constitution agree on the need to find new language that might resonate with the rabble. From there, no one's quite sure.

"Why not read the preamble?" suggests Vicky Jackson, who teaches at the Georgetown University Law Center. "We say we have purposes. And our purposes, they're pretty good."

"Yeah, the preamble has served progressives well," agrees University of Texas' William Forbath.

"So we should be perambulatory?" Balkin jokes.

"I'd go for justice and the general welfare, too," says Larry Kramer of Stanford.

"The fact is that this is not bumper-sticker material," shrugs ACS board Chairman Goodwin Liu after I ask him how the group plans to get its message out. "And the whole point about the bumper sticker is that it degrades the public's understanding." The ACS doesn't want to water down its message for popular understanding. It really just wants people to just get it.

ACS has done well with the Federalist Society's game plan. But in stepping into that arena, the liberals are still letting their opposition define the rules of play. They're even aware of the danger: Pam Karlan, describing the ACS-published book she authored with Liu and Chris Schroeder, says in the opening plenary: "We could have titled it We're Liberals and We're Not Ashamed. But we thought that would be a little defensive."

As Berkeley Law professor Rachel Moran notes on Siegel and Balkin's panel, the Sotomayor nomination hasn't exactly been a triumph of progressive PR, either. Rather than defending her using ACS's general philosophy—that the Constitution should be responsive to people's lived experience—Democrats like Patrick Leahy have repeatedly emphasized her strict adherence to following the law. A concession, perhaps, to the Federalist Society's towering rhetorical legacy.

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