Monday, August 06, 2007

ACS National Convention 2007 - Days 2 and 3

ACS National Convention 2007: Toward a Just Future

The overall focus of the convention seemed to be the government and the balance of power in the Roberts court era. Discussion covered topics such as the role of the courts v. Congress, constitutional interpretation, and the effect of social values, public opinion and culture.

Day 2 of the convention began with a panel on race and the Constitution. Professor Goodwin Liu (who will be coming to Columbia in early October) got the discussion started with a quick rundown of the meaning of the equal protection clause ("EPC") within the framework of the 14th Amendment. According to Professor Liu, the EPC was originally intended to help establish a "national citizenship," where every citizen of each state and the nation as a whole had equal status and the same substantive rights. It was an anti-hierarchy, not an anti-classification, measure.


Judge J. Harvie Wilkinson III (US AC, 4th Circuit) took the opposing view by advocating a race-neutral application of the EPC. The 14th Amendment should transcend race by viewing all Americans as equal "citizens," Judge Wilkinson said, avoiding the tendency of race to divide rather than join. In Judge Wilkinson's view, by rejecting racial categorization in the recent Seattle and Louisville school desegration cases, the Supreme Court was taking an important step towards a race-neutral America. School districts should be focusing on gaps in socio-economic class, not race.

The other panelists staunchly disagreed with Judge Wilkinson's approach. John TrasviƱa, President of MALDEF, and Ted Shaw, President of the NAACP-LDF, emphasized the difference between aspiration and reality. As Professor Liu pointed out, the United States is far from being a colorblind society. Until there is a true social consensus on racial equality, it would be dangerous to pretend that race is irrelevant.

The question, then, is whether the courts are the best way to push for social change. In the breakout session on "backlash" and attacks on landmark Supreme Court decisions, the panelists debated whether "activist" judges cause a backlash of public opinion. Professor Jeffrey Rosen defined "backlash" as social movement driven by counter-majoritarian judicial decisions. However, Professors Reva Siegel and Robert Post argued that so-called "backlash" is a normal and necessary part of the constitutional order. By making decisions that lead to democratic deliberation, courts help reaffirm the authority of the Constitution. Professor Scott Lemieux suggested that judicial minimalism is actually more dangerous, especially with the recent hollowing-out of precedents by the Roberts court. It is more important than ever for the nation to debate topics such as education and abortion.

Other breakout sessions considered hot-button issues like climate change, federal sentencing, the justice department, and voting access.

The final day of the convention continued the discussion on a diverse range of topics including civil unions, racial profiling, labor organizing, immigration reform, the balance of power, the role of local government, the Military Commissions Act, the Establishment Clause, and reproductive rights.

One highlight was the luncheon panel featuring Supreme Court journalists from Slate, NY Times, National Journal, and NBC News. Asked to predict the future of the nation in this new Supreme Court era, Pete Williams said what everyone was thinking: "Who knows? And it depends..."

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