Their usurpers became the orbiters of conservatism. Even now, 50, 60 years on, we liberals and progressives have a hard time with the idea of returning to our fore bears at the political branches and people themselves should have the last word on what our constitutional principles mean. And thats especially poignant because when it comes to political economy, the conservative tradition, antiredistributive, antiregulatory is one courts can take up as the court has shown because it often involves striking things down. But the progressive tradition i just sketched is one that takes legislative work. And administrative work. And the courts role is often simply to stay out of the way. Bless you. And that may require taking seriously the idea that the legislation at hand, the redistributive legislation that progressives aim to push through congress, is not just Economic Policy but Economic Policy with a constitutional purpose and constitutional principles driving it. So that now that the Roberts Court is acting like a new lockner court, eviscerating measures like Medicaid Expansion and Campaign Finance laws, with student Debt Forgiveness in the federal courts cross hairs and a court thats likely to strike down labor laws should they emerge like the one the house passed last year which proect techs broad strikes and union organizers. And how are liberals and progressive responding . How are we going to respond . For over half a century our response to such constitutional claims when they came if the constitution in exile on the fringes maps on to how so far we seem mostly to be responding to these arguments that are coming from a rightwing majority on the court. Namely, youre wrong. The constitution doesnt forbid, it permits. These forms of redistribution and regulation. We say the constitution is silent about the distribution of wealth and economic power. But as ive sketched, that has not historically been the way progressives and liberal responded. They didnt say the constitution only allows, they said the constitution requires such measures. They said that congress and others have a constitutional duty to enact and implement measures. To build and maintain the kind of political economy, right, that can undergird a democratic republic. Let me wrap up. One High Water Mark of this tradition was reconstruction. The framers of those amendments, right, held that congress had a duty to enact laws that protected the exslaves new civil and Political Rights but also a duty to provide land and, to break up the old slaveholding oligarchy, to provide a social base for the exslaves standing as citizens. So the idea was, it wasnt enough as conservatives today imagine, to enact a color blind principle of racial nondiscrimination. What was needed on their account and impelled by their constitutional life was an upending of the whole southern plantation oligarchy system. Its that outlook that distills antioligarchy abroad, wide open middle class and Racial Inclusion that we say is at the heart of the tradition weve reconstructed. I could go on if we had world enough and time to show how again and again, through the new deal, lawmakers in this ethos and spirit would say, we are not simply doing this because right now the constitution allows it. Again and again in ways we have quite forgotten, they said were wise to do these things. This is what the constitution demands of the government and of the legislature and administration in particular. So what part of as joey said what we hope to rekindle today is what those languages and arguments sound and feel like in this register that i can assure you, one of the richest illustrations of the kind of argumentation, benkle rervetion pointed us to years ago, in respect of homesteads. Sort of a great reconstruction congressman and homestead advocate saying, we, lawmakers, having have a duty to enact laws that put land under the feet of landless citizens. In order to underpin their citizenship. So this goes on and on and and the question now is what would it take to rekindle it . Is it a good idea . As i have made clear, joe and i think it is a good idea. Ill note that many, many of our comrades on the left, including ryan dorfler, one of the most elegant critic os of this idea, is here. So well hear from those who think it may not be such a good idea but i hope ive told you enough to at least get the conversation started. Thank you very much. [applause] thank you so much, willy, for a great beginning. Im not doing introductions of these panelists because it goes without saying none of them need an introduction. If you want more, you can use the information, you can find online biographies and so forth. It would take us an entire day to go through all the various accomplishments. Were not going to do that. Instead well turn it tore michael i thought it was going through. Its ok. Thank you. Can you hear me ok . Thank you for allowing me to take part in this conference. Thank you to willie for writing his book which we could talk about for a long, long time. I was talking to e. J. Before, i think were the only two nonlawyers on the panel today. So while my allotted 10 minutes or so may come off as ignorant or obvious to those who know con law better than i do, but the questions that came from reading their book and the overall premise of the conference, i think willie stated it very well. What will it take to bring this perspective back to american law and american politics. The question i want to raise is, how have americans on the broad left for whom we now use the spongy term progressive, participated in changing how the constitution is interpreted, and was interpreted, to advance a more egalitarian and democratic economy, one that can get us closer to a true definition of true equality. What will it take to rekind until tradition as willie mentioned at the end of his remarks. Interesting review of their book in the journal of democracy, mark gleyber, who argued only congress can employ, quote, its tawtionally mandated duties to reate a democratic motivated economy with parties in control of the national government. That control only happen, i would argue, in social movements exist at a Strong Enough and follow a prudent enough strategy to put pressure on elected officials and work with them to advance legislative desires. Only those circumstances can elected officials win the Popular Support to appoint judges, friendly to their point of view or able to make it difficult to have judges. Progressives have used the constitution to create a more egalitarian policy in certain circumstances. I want to talk about three of them. Willie touched on all of them already. I want to revisit them in a somewhat different way only three times in u. S. History has one Political Party been dominant in Political Party and american politics. It was led by progressive, liberals, leftists at times who initiated legislation to further Economic Opportunity and justice. And this was always, all three instances, environments shaped by social movements on the left. The first is reconstruction. 1864 election, the Democratic Party campaigned on the slogan, the constitution as it is, the union as it was. To which one democrat added, and nwords where they are. Fortunately lincoln won that election and after his assassination, democrats in congress defeated his successors plan to let the south back into the union then Congress Passed the 14th and 15th amendments and sent them on to the states for ratification. But the movement for Racial Justice shrank rapidly as reconstruction came under attack and became unpopular and federal courts turned against antiracist legislation. That was aimed to build on those amendments. When congress debated the 1875 Civil Rights Act it was in the wake of the democrats taking control in the house for the First Time Since the civil war. The wake court with a majority of republican appointees struck the law down and demonstrated without a powerful and enduring Antiracist Movement the beliefs and practices of social inequality would endure whatever the constitutional arguments. Therefore to the new deal. The second time when progressives, you know, had a leg up on their opponents political and constitutionally. As you know the court in 1937, in joans v. Lockland, in effect reversed its ruling at least in terms of labor. They rules the n. R. A. Unconstitutional together with section 7a which protected union organizers. In jones v. Lockland they upheld the Labor Relations act, still the guiding legislation in labor law today. Im sure the creative arguments that senator wagner and his team of attorneys made about how to interpret the Commerce Clause had something to do with persuading chief Justice Hughes to change his mind and write the majority opinion. Theres a wonderful bit about this, but what if f. D. R. Had not won a land slied, what if Union Membership were not surging with workers in the autoplant in flint, michigan, at the time the decision came down from the court in february, 1937 . Hughes himself argued and this is a quote from their book, the Economic Impact of a strike at jones and lackland would be, quote, immediate and might be cat stosk. The contrast is a victory for Economic Opportunity. With labors failure in the previous era to ward off prosecutions under antitrust legislation. And uphold laws on marriage in the case. Congress itself was about constitutional interpretation more than any of the leaders of labor in the 19 30s and he argued his case often with people on the right. But he lost, he lost, i think, because it was not large enough or Strong Enough to press politicians or convince judges to agree with their arguments. At the time the union that was organizing work for jones and lockland later in the 19 30s was much too weak in the era to win recognition antisteel plant at the time. Finally theres example of how the warren court broke the pow over states rights in the 19 50s, 1960s and early 1970s. What can explain the rulings for that, to loving v. Virginia, without the transformation of white Public Opinion about race beginning in world war ii and continuing over the next two decades. If liberal republicans like warren hadnt supported striking down legalized racism the considerate would have been far more divided on cases of that era. Im not arguing that judges should follow election results. Sound and create v constitutional argues must be made to win the day. But how those arguments emerge and triumph depends largely on the composition and relative power of social and political forces. Finally what is the place of constitutional argument in our Politics Today . Can we engag ordinary people with those arguments . Or is constitutional political economy just a matter for academics, politicians and attorneys to discuss among themselves in forums like this one . Alas for me the answer to that question, at least right now is a qualified no. Few americans outside the ranks of law schools, offices and courts know much about the constitution. I teach a class on voting and elections at georgetown to very smart, pretty wellinformed undergraduates. And every time i teach it i get the question, why the hell cant we abolish the senate . Or at least elect senators by population, wouldnt that be reasonable . Clearly no one ever told them about the final clause in article 5. They built a large opposition move to opposition to roe v. Wade and plessy. Whats important for progressives to accomplish a similar breakthrough in the cause of Economic Opportunity. With a farreaching and easily understood decision to oppose, not surprisingly, the on stoition roe v. Wade, the opposition to plessy of course there was a Positive Side to that in boast cases. They found an important ruling that they could build a movement to oppose. So whats going to be the decision by the Roberts Court which were going to build that movement on . I dont know what it is yet but i think therell probably have to be one. My point is really quite simple. To change how the courts interpret the constitution we will first have to change the minds of enough americans who can mobilize to pressure the courts to change. Thank you. [applause] i do want to say i think probably even a lot of lawyers done know about the final clause of article 5, they take it on a given that its in the constitution and they dont know that you cant amend that part of the constitution. It is kind of shocking to find out. So with that, i think it would be great for you to pick up on this theme of popular movements and how it affect ours constitutional understanding. Thanks, carlene. Thanks for having me here. Thank you, joey and willie for writing this book. Thank you more importantly for continuing in the project. But this book that this book is motivated by. I want to start by my account of the constitution. My account of the constitution as originally formulated by an ol garric oligarchic, antidemocratic government. The reason i say that is it rose out of conservative reaction to what was going on in the 17 80s. What was going on in the 17 80s is a movement and push for redistribution that was made by the many poor american who found themselves in debt after the american revolutionnary war. And that movement led to such rebellions as happened in massachusetts, the shaes rebellion. It led to pushes by those who were indebted folks to their government to engage in different types of policies such as paper money policies that would diminish the value of credit and reduce the cost of debt. It was a movement to create a more level playing feel for those who were in a sense left out of the Economic Opportunities set forth after the revolution. And i think that once we recognize that, we recognize that part of the project that the court is engaged in is one of reconstructing that conservative ol gar kick oligarchic antidemocratic constitution. If were going to have a step forward we need to recognize a focus, recognize that reality and try to shift the focus toward what i think was a truly antioligarchic democratic moment, the reconstruction era. That was a moment after the civil war of course in which there was a program to produce and advance the tawes of Racial Justice after many centuries of slavery in this country. But it was not only a Racial Justice project. It was an Economic Justice project as well. And that Racial Justice and Economic Justice project had a constituency. That constituency were those africanamericans who were formerly enslaved that we know about. Its also a constituency of white americans in the south seeking opportunity as well. Many of whom were poor and also many of them who didnt live in the south as well. I think that once we recognize this new Framing Movement and sort of focus on this constitutional moment as being the constitutional moment that is entitled to our attention, we can start to push this idea of antioligarchic constitution in a way thats consistent with the Historic Development of our constitution. What we learned in terms of the pushback against the antioligarchic original constitution is the movement in the recon instruction era was an important part of it but what occurred before that was also important. This occurred in the states, where there were movements by people to demock rahtize their state governments and democratize elections to make opportunities for people to make claims on Economic Justice. That was the genesis and found fairgs the reconstruction, reconstruction of republican government. Republican government as not simply a means by which the wealthy and elite would control power but a means by which the economic downtrodden would also have a say and a voice in our development of policies and laws. Now, once we recognize the importance of constituencies, we can start to fast forward to what made the new deal effective. The new deal was effective because of what occurred in terms of economic collapse after the stock market collapse and the economic pain that Many Americans were suffering thru at the time. What that resulted in was a natural constituency for movement for Progressive Political economy. Many americans were poor. Many americans were suffering. Many americans were making demands on their legislators, both in the federal government and state government, to provide some form of relief. And that relief came in the form of quite Progressive Political economy poll icies in the new deal era. Social Security Administration perhaps being the key policy but also a host of programs that were designed to get americans back to work, produce Economic Opportunity, and to advance this redistributive idea of government role. Now i want to sort of glor i dont want to sort of glorify this moment too much, because it was a Discriminatory Movement as africanamericans were left out of programs that were designed to advance the opportunity or downtrodden white folks. Nonetheless it was an important moment in rethinking the role of government, rethinking government as a means of redistribution. We saw the remnants of that play forth in the war on poverty. The remnants of that brought about by the fact that many of these