Back in 1982, a group of Yale law students formed the Federalist Society, feeling that conservatives and libertarians were increasingly unwelcome in the US legal field. The organization grew steadily over the last 40 years, regularly hosting panels, meetings, and conferences of judges and lawyers. The Federalist Society offered an alternative to the American Bar Association (ABA) that some in the legal field saw as captured by left-wing interests. By the time of the George W. Bush presidency, the ABA proved unwilling to recommend many right of center judicial candidates. Formed after the controversial Bush v. Gore Supreme Court decision in 2000, the American Constitution Society (ACS) is the progressive, left-wing alternative to the Federalist Society, currently led by former Wisconsin US Senator and co-sponsor of the Bipartisan Campaign Reform Act (BCRA), Russ Feingold. What can ACS’s positions tell us about the legal attitudes of the American Left and how do they stand up to scrutiny?
In addition to a YouTube channel and a regular events schedule, ACS hosts blog posts, issues and analysis, and projects on its website. Under its projects tab, the organization encourages site visitors to run for office, teach about the Constitution in classrooms, and check out information about judicial nominees. ACS opposes capital punishment, favors abortion, and calls for a national truth and reconciliation commission on race. It opposes what it sees as a threatened Article V Constitutional convention, “[that] could see amendments aimed at disassembling modern government and the century-old New Deal consensus, returning the country to the troubling, splintered times when the federal government could do little to provide for national welfare or defense. This could include amendments to repeal the federal income tax, to require onerous supermajorities akin to the filibuster to raise other taxes, and to enable state legislatures to nullify federal laws and regulations.”
On the Supreme Court
“The conservative supermajority is threatening our democratic legitimacy by failing to uphold constitutional guardrails. Our democracy, our right to self-government, depends on a meaningful right to vote. Right now, our right to vote is in jeopardy because of this Supreme Court, which has upheld voter suppression laws and OK’d partisan gerrymandering. Similarly, the Court’s conservative supermajority is taking direct aim at the separation of church and state in disregard of 50+ years of precedent regarding the First Amendment.”
“This packed Supreme Court is a proven threat to fundamental rights. It has already overruled Roe v. Wade, wiping out the federal constitutional right to abortion and nearly 50 years of precedent. The Court’s decision in Dobbs v. Jackson Women’s Health also effectively serves as an invitation for states and plaintiffs to pursue litigation to rewrite constitutional law in this country in the interests of white supremacy, sexism, and misogyny. This could include efforts to overturn the Court’s previous decisions on same-sex marriage, inter-racial marriage, and contraception.”
Administrative State
· Expand data collection, sharing, and enforcement at the Equal Employment Opportunity Commission
· Supported a Biden administration OSHA executive order
· Supports state attorney general environmental justice initiatives that it defines “as communities of color and low-income communities that face disproportionate environmental burdens”
National Security
· Opposed renewal of Section 702 of the Patriot Act and called for an amendment to require search warrants.
· Calling for a greater Congressional role relative to the president in January, 2022 preparing for the (then) possibility of a Russian attack on Ukraine.
First Amendment
· ACS opposes the overturning of portions of the Bipartisan Campaign Reform Act in the 2010 Citizens United v. FEC decision: “The Far Right is pursuing an audacious effort to capture America’s courts. Fueled by $250 million in secret “dark money” contributions, they seek to enact a radical social and economic agenda they could never achieve legislatively. This page shares reporting on the secret donor network behind the Far Right’s attempt to turn the judiciary into a tool for partisan and corporate interests. Learn more, including what you can do to protect a fair judiciary.”
· Calls for a National Endowment for Fact-Checking modeled after the National Endowment for Democracy with a mandate in “a narrow category of election-related claims and a narrow category of claims related to public health…Because private companies cannot be trusted to decide what is true and false, and the First Amendment bars Congress from delegating to any government agency the primary responsibility for making such case-by-case decisions, the statute delegates that responsibility to independent, non-governmental fact-checking organizations.” The organization would issue warnings and “encourage…de-amplification orders.”
Criminal Justice
Immigration
· Favors taking immigration courts out of the purview of the Department of Justice
Progressive Jurisprudence
· Encourages greater clarity about a progressive jurisprudence as an alternative to textualism and originalism: “More is needed to say what the law is: context, history, intent, meaning, and other tools employed by the common-law methodology that sits at the heart of our judicial system. Generations of common-law jurists, at every level of the judiciary, have employed judicial methodologies to choose the materials best suited to getting to the right answer for any particular issue at hand. That is good judging.”
In Sum
In this article, we’ve taken a look at some of the high level statements from ACS, from the organization itself and individual authors, although we have not considered podcasts and videos. Thematically, ACS is fairly typical for a left of center policy organization in the US. There are many topics it has not addressed but it offers some valuable specifics.
ACS’s opposition to warrantless surveillance under the PATRIOT Act and concerns about the abuse of facial recognition technology are sensible. Going back to the 1960s, left-wing judges and lawyers have been out ahead of the curve on Fourth Amendment search and seizure issues.
ACS is weak on First Amendment and Second Amendment rights. The right to bear arms and the right to self-defense remains perceived as uncouth and “right-wing” despite widespread popularity among many left-wing American voters nationwide. On the First Amendment, ACS’s calls for a National Endowment for Fact-Checking and a return to pre-Citizens United campaign finance laws are concerning. “Fact checking” to combat “disinformation” is just coded language for large-scale censorship of disfavored ideas. Who decides what is or isn’t legitimate information about public health and elections? Supposed non-partisan status is unavailing because that simply insulates and removes oversight, hiding the biases and attitudes of commissioners.
A return to the old system of campaign finance would also be bad. Apart from First Amendment guarantees that are not conditioned on the size of the speaker, there are compelling policy reasons why laws like the Bipartisan Campaign Reform Act were wrong. Under that law, vaguely defined institutional media was exempted and allowed to lobby and campaign at will under the guise of news reporting while other groups such as companies, unions, and non-profits faced major barriers to speaking. Free speech in its most heavily protected form—in politics—is about being able to share ideas nationwide not with one or two friends at the bar.
ACS stances on jurisprudence, courts, and the administrative state require a very nuanced response outside the scope of this article. These are complicated issues, with supporters and opponents on both sides of the political spectrum, although as a general matter greater oversight and less administrative enforcement is likely better for the economy.
The big problem with the (still) vague idea of a progressive jurisprudence is precisely the fact that it is so ill-defined. There may not be a single set of interpretive ideas in textualism and originalism, but there is probably greater consensus than the progressive version. The problem with a “contextualist” or “purposivist” viewpoint is that it relies on the hunches of enlightened experts to decide in a way that the democratically elected representatives of the people might never have intended.
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