On Thursday night, ACS founder and Georgetown law professor Peter Rubin visited Columbia and spoke on what the nomination of Judge Alito and, in a larger sense, the changing jurisprudence of the Supreme Court means to the nation. Rubin addressed the dangers inherent in a narrow reading of constitutional provisions--especially those that protect individual rights--and placed the fate of Roe v. Wade in a larger context that considers the role that human values play in the law.
Professor Rubin spoke forcefully about the consequences of formalist constitutional interpretation that reads rights-granting text in the narrowest, rather than in the broadest sense. Especially where individual rights are concerned, the promise of liberty made to every American by our written constitution includes protections of human values. "Law serves human values," Rubin insisted; insistence on "economic efficiency" or narrowly circumscribed textual exegesis metes out justice with far too stingy a hand when placed against the proud background of liberty, freedom, and equality from which we come.
The great philosopher Augustine of Hippo wrote of the constricting nature of exegesis that gives attention only to the letter of the law, and not its spirit. In giving meaning to law, he writes, the text does not alone suffice; the reader "should consider what else it signifies, nourishing the inner man by our spiritual intelligence" (A Treatise on the Spirit and the Letter). The things that we value--the objects of our secular faith--shall not become real if we allow ourselves only the sterility of bare language cut down to its most minimalist, its smallest sphere of meaning. Every time our courts use the text of the Constitution as a ceiling on equality, justice, and liberty, rather than a floor, every one of us loses. Every time the courts use the narrowly-construed text of the Constitution to strike down a congressional act that increases or bolsters individual freedoms, the spirit of our nation is dealt a tremendous blow.
In the face of current history, progressives have a choice. We can compromise and accommodate by taking strategic positions far more conservative than we prefer, but close to the currently dominant political discourse. Such positions might be successful in the short term, and clearly must be occupied by a critical mass so that we can resist losing more ground.
A progressive's other choice is to take the very long view. It may be ten, twenty, or even thirty years before public opinion and Article III appointments turn away from overconstrained readings of the Constitution and destructively stingy views of individual rights and liberties. To take advantage of that historical shift, whenever it might happen, another critical mass of progressives must remain preoccupied with long term strategy, voter education, and evolutionary progressivism. That role, I believe, falls to the ACS.
Here at Columbia, our goal is to present events that inform the law school community and provoke debate on constitutional issues ranging from the expansion of executive power in the war on terror to the government’s role in alleviating poverty and racial discrimination. Last term, we welcomed Cass Sunstein, Vanita Gupta of the LDF, and Walter Dellinger as speakers, and ACS also cosponsored a debate on Intelligent Design and a brown-bag on the nomination nomination of Judge Samuel Alito to the Supreme Court. Perhaps you’ve come to one or two of our events, but you’re not quite sure what the ACS is all about.
Ask me what we believe, and here’s what I’ll tell you. The ACS is nonpartisan; we seek not dominance of party, but rather pursuit of a particular view of the Constitution. We adhere to a very clear set of values that drive our law and policy work as a group of practitioners, scholars, judges, and activists deeply committed to, and optimistic about, the future of this nation. Our central values include human dignity, individual rights and liberties, and genuine equality.
First, the inherent worth and dignity of every human being. This includes the right of every person to make those decisions that lie only between an individual, her conscience, and, if she so believe, her god. Within that most intimate sphere of life where we decide whom to love and how, whether to bear children and when, and when we wish to cease our own individual pursuit of medical treatment that serves only to prolong suffering, we believe that the federal government has only a narrow role to play. Our Constitution—a Constitution for the twenty-first century—protects individual liberty within these moments, for they define the very essence and mysteries of human existence.
Our pursuit of individual rights and liberties is far-ranging and includes matters from racial justice to successfully balancing individual liberties with national security in the midst of the war on terror. While national security and international relations currently absorb the nation, and rightfully so, we can never forget that within the borders of our nation, the gap between rich and poor is ever wider; de facto segregation in our schools defines ever more sharply the contours of discrimination in the twenty-first century; and the federalism jurisprudence of the Court threatens the effectiveness of the Voting Rights Act, one of this nation’s most important civil rights laws. These challenges belong to us all, and together we must share the search for effective solutions.
Genuine equality does not mean enforcement of equal results, but rather genuine equality of opportunity. Our Constitution for the 21st Century protects economic opportunity by setting rational limits to the operation of the free market, for the absolutely unrestricted free market tends to limit rather than promoting opportunity. Economic equality of opportunity also inheres in the right to collective bargaining and the right to safe workplace conditions.
In short, our Constitution—a Constitution for the twenty-first century—acts as a sword and shield to protect, jealously, the inherent worth and dignity of each individual; liberty; and equality of economic and educational opportunity. That Constitution shields every last one of our people—not only the ones whose political activity and opinions pass muster with the Executive; not only the ones who conduct their lives within a narrow compass of acceptable behavior; not only the ones who have enough money to buy opportunity for themselves alone.
Ask me who we are, and I will tell you: we are Zaid Zaid, whose State Department service prior to law school included six months in Baghdad’s Green Zone. We are Laila Hlass and Anna Arcenaux, who saw the devastation wrought by Hurricane Katrina and swore never to let us forget; they lead now where our government has failed utterly. We are Jeff Penn, leader of the Columbia Black Law Students Association; Dynishal Gross, co-president of the Columbia OUTLaws; Young Lee, editor-in-chief of the Columbia Law Review; and the thirty-six competitors and sixteen editors participating in this inaugural year of the ACS National Moot Court Competition, founded here at Columbia. What unites us all is devotion to a value larger than ourselves: the inherent dignity and worth of every individual.
Whether or not you have been to any of our events before, and regardless of your party or your political persuasion, you are welcome here. To join our listserv, send a message to firstname.lastname@example.org. We’ll be hosting an open-bar membership party on February 2—come for free if you’re already a member, and if you’re not, it’s just ten dollars at the door. We’ll announce its location soon.
If you believe that law serves human values, if you believe that national security must be balanced with individual liberty, if you believe that some spheres of human existence must remain independent from the law, come go your way with us. You won't be disappointed.