The movement by primarily liberal legal scholars that advocates for new interpretive methods of the Constitution and the notion of “Positive Rights” is generally referred to as ‘Democratic Constitutionalism’.(130) This movement came into more serious focus in 2005 at an American Constitution Society held at Yale University titled, “The Constitution in 2020.”(131) A book of the same name and another conference then followed four years later in 2009.(132) The goal of the organizers was to bring together a group of scholars to define a progressive constitutional agenda for the coming century.(133)
“The Supreme Court has an issue of diversity. All nine judges either went to Harvard or Yale.”
-Justice Elena Kagan *Univ. Alabama Speech on 10/4/2013
One of the core ideas of democratic constitutionalism is that courts should pursue many of the same social-justice ends that the Warren Court of the 1960’s sought to advance, only using more modest, less uniformly activist means – always acting in conjunction with progressive political movements.(134) Justice Elena Kagan wrote her Oxford thesis on Warren court jurisprudence.(135) Unlike the minimalists, the democratic constitutionalists don’t maintain that courts should always prefer “nudges over earthquakes”; but unlike Warren Court partisans, they don’t suggest that the courts are always entitled to have the first or last word in promoting social progress.(136) “Decisions made by legislatures and executive officials about our rights are just as important: as judicial decisions, if not more so, Jack Balkin and Reva Siegel write in an introductory essay to “The Constitution in 2020.”(137)
Though the courts ought to take their cues from representatives of the people and from popular political movements, judges still have important work to do in giving convincing legal expression to those sentiments.(138) “In a democratic society, “ Jack Balkin and Reva Siegel write, “courts best perform their institutional role as partners in a larger dialogue: they respond to popular visions of the Constitution’s values and help to translate these values into law.”(139)
In other words, if the Warren Court saw the Constitution as defined primarily by courts, and if the minimalists see judges as cautious followers of political movements, the Democratic Constitutionalists see courts and political movements as partners, influencing each other and society as a whole.(140) Courts sometimes act boldly and sometimes cautiously.(141) Constitutional change ultimately flows from the bottom up, not the top down (which results in “Democratic Constitutionalism”), but the courts play an important if subsidiary role in codifying and extending value that the American people themselves have come to embrace as fundamental (which results in “Democratic Constitutionalism”).(142)
This activist partnership to meld liberal political activism and the courts to discard or modify the Constitution in favor of a liberal left constitution is being financially supported by George Soros.(143) Among the initial participants of the 2005 conference of progressive legal stars were two Soros operatives who at the time were destined to be key Obama handlers in his presidential campaign, the transition team, and in the White House: John Podesta and Cass Sunstein. Podesta ran Obama’s transition team.(144) An outsider/insider with unique access to the President, Podesta oversees perhaps the most successful of the organs of the multi-billion dollar Soros policy lobbying entity – the Center for American Progress.(145) It has been a front of progressive ideas that the Obama White House has turned into policy.(146) Coincidentally, Obama tapped Podesta to be his Sr. Advisor at the White House in January 2014 with his focus being broadly on executive action.(147) In November 2010 Podesta Published a paper titled “The Power of the President: Recommendations To Advance Progressive Change”.(148) It is effectively the progressive presidential executive playbook.(149)
“The ability of President Obama to accomplish important change through these powers should not be underestimated.” (150)
Sunstein, who was tagged as an “informal”, Obama campaign advisor, was the White House regulation czar, director of the White House Office of Information and Regulatory Affairs, which is a powerful position in which he served as a gatekeeper for all new federal regulatory changes.(151) Sunstein was on leave as a Harvard law professor, is an incredibly prolific “progressive” far-left legal scholar with a host of ideas that have created controversy.(152) One proposal was a kind of rationing of the Internet.(153) He has demanded that websites be forced to include opposing views, because of “the growing power of consumers to ‘filter’ what it is that they see.”(154) He fears that Americans don’t create the kind of “diversity” provided by the former gatekeepers of network TV.(155) To Sunstein, individual citizens are incapable of being on their own in a sea of digital information.(156) He fears that, “In the extreme case, people will be fully able to design their own communications universe.(157) They will find it easy to exclude, in advance, topics and points of view that they wish to avoid.(158) Sunstein was and still is calling for government censorship to create diversity of thought.(159)
I would be criticized for not making the connection but the goals and aspirations of the contributors to “The Constitution in 2020” and some specific statements made by individual contributors, I cannot help but be reminded of another book I have read. “The Communist Manifesto” was written by Karl Marx and Friedrich Engels in 1848 and in Section II of the book a list of demands is made for changes in society.(160) That list bears striking resemblances to the goals of “The Constitution in 2020” essays, but they don’t come in the sweet words of ‘Positive Rights’. As we explored earlier, technologies try to adapt based on what they previously learned but not always successfully.
In response to the NSA revelations, in August 2013 President Obama commissioned a panel of ‘outsiders’ to review the NSA and its policies in the context of infringements of the Fourth Amendment rights of U.S. citizens.(161) The panel is composed of five people with thought provoking backgrounds. The members are:
Cass Sunstein – Harvard Law School Professor (162), University of Chicago Law School (163), former US Regulatory czar, Authored article in “The Constitution in 2020”(164), and is Married to Samantha Power who is the U.S. Ambassador to the UN.(165)
Richard Clarke – Harvard Kennedy School adjunct lecturer and former Homeland Security czar.(166) Mr. Clarke has an extensive career in Government as it relates to national security and defense.
Michael Morrell – Harvard Fellow at Berkman Center as of Sept. 13, 2013 working under Yochai Benkler.(167). Recently retired as Assistant Director of the CIA.(168)
*Yochai Benkler authored an article in “The Constitution in 2020”.
Geoffrey Stone – University of Chicago Law School (169), Author of the 2007 book “Top Secret: When the Government Keeps us in the Dark”, he is committee chair at Univ. Chicago looking to build Obama’s Presidential Library in Chicago, an ‘informal’ advisor to Obama’s 2008 presidential campaign. Previously a member of the board for the American Constitution Society (Supporting organization of “The Constitution in 2020” and board of advisors for the American Civil Liberties Union. He also hired Barack Obama at the University of Chicago.(170)
Peter Swire – Professor at Georgia Institute of Technology(171), attended Yale Law School, and is a Senior Fellow for the Center for American Progress ran by George Soros.(172)
In the spirit of constitutional principles of balance of power and checks & balances, this committee doesn’t seem to meet the standard based on those principles. Even the American Civil Liberties Union (ACLU), which is very progressive itself, acknowledged the groups’ lack of balance.(173) The report the panel produced was scheduled to be released in January 2014,(174) but after a meeting between President Obama and top technology industry leadership,(175) coupled with a critical legal opinion ruling in Klayman vs. Obama, the report was expeditiously released weeks in advance in December 2013.
On December 16th, 2013 Judge Richard Leon, a Harvard Law educated judge on the DC circuit court, ruled in Klayman vs. Obama that the NSA programs were very likely unconstitutional and even Orwellian in nature.(176) Coincidentally, on December 27th Judge William Pauley ruled in a different case these programs are lawful.(177) Immediately after Judge Leon’s opinion was rendered, the White House released the review panel’s report and said it will be seriously take into consideration the report’s forty-six recommendations.(178) On December 19th, 2013 President Obama gave his final press conference of the year and stated that he would make a “Firm Statement” on NSA reform in January 2014.(179) In summary the findings of the panel’s report were the following:(180)
- NSA should be removed of its power to collect metadata of the phone records of U.S. citizens.(181)
- Proposes greater authority for spying on foreign leaders.(182)
- Government should be banned from undermining encryption.(183)
- Once intelligence has been collected there are strong pressures to use it.(184)
- Secrecy should no longer be allowed to shield the existence of Constitutional, legal, and moral problems from the scrutiny of the three branches of government or from the American people.(185)
- Our offline and online lives are one in the same and should be governed as such (digital self = real self).(186)
- Mass bulk surveillance systems are never 100% secure from theft and illicit use.(187)
- Panel recommends the U.S. should be a leader and good neighbor and treat all humans with the same level of dignity and respect.(188)
- Information Resource Management systems should be instituted and attached to intelligent multi-factor authentication systems in order decrease risk and increase the fidelity of current systems.(189)
There are more recommendations in the report but many people, myself included, felt the report sounded like a step in the right direction. The authors of the report believe the greatest risks to America are terrorism, weapons of mass destruction, and cyber espionage/warfare. While I concur those are risks to the U.S., they are not unique only to the U.S and primarily foreign risks, not domestic risks. The panel neglects to suggest the subversion of U.S. rule of law and the concept of positive rights in accordance to surveillance risks to U.S. Democracy.
I also found it interesting that three of the five members are at Harvard. While Harvard is one of the most prestigious universities in the world and many of its graduates and professors go on to careers in powerful positions, in this instance it is particularly thought provoking based on research published by the Harvard Law Review in 2007 regarding the Fourth Amendment and methods of interpretation. Case in point, in my next post we will be exploring the Harvard Law Review articles published when Supreme Court Justice Elena Kagan was the Dean of Harvard Law School.