Author: Joey Fishkin

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Bottlenecks: Applying the Theory (some responses)

I want to respond here to several thoughtful posts about Bottlenecks: A New Theory of Equal Opportunity from participants in this symposium, each of which applies the theory to a novel domain: legal education, health, and the whole field of economic policy that affects wage inequality.

So let’s start with legal education.

Lea Shaver, in one of her posts, focuses on bottlenecks in legal education: to become a lawyer, you need a good LSAT score, a fair amount of money (borrowed or otherwise), and you need to pass the bar exam. At most schools, you also need to go to school during the day, precluding other work and life obligations. I basically agree with all of this. The LSAT is similar in many ways to the SAT, although in my view, as a bottleneck it is by far the less problematic of the two. Why? Because if you can’t score well on the LSAT, the only career path you’re locked out of is law, whereas if you can’t score well on the more general SAT, a very large swath of all careers may be closed to you (although some alternative routes exist).

From the point of view of opportunity pluralism, the largest question I’d ask about the current structure of legal education is: Why is it so uniform? Why do all law schools appear to be using basically the same criteria, and chasing the same students, with increasingly finely-calibrated scholarship-based pricing? More radically, why is nobody pursuing models of legal education that are smaller-scale (and quicker and cheaper) than a JD, yet offer graduates the opportunity to provide some more limited set of legal services? (These also could function as Lea’s intriguing suggestion: programs that partially feed into JD programs, the way community college programs partially feed in to 4-year college programs.) What’s stopping this sort of thing? Read More

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Constitutional Protestantism or Constitutional Televangelism

I appreciate Doug taking up questions from my earlier post and I think he’s right about the central role elites play in interpreting constitutional texts.

I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive.  The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea.  It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational.  One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all).  It is also possible to read it without understanding it very well.  Most people today report that they find Biblical text hard to understand (although the irony is not lost on me that the survey I just linked to saying so was conducted by the Vatican).

Luckily, if you have a hard time reading or understanding your Bible or your Constitution, help is on the way!  Many experts and leaders—elites, as Doug says—stand ready to help by offering interpretations, often complete with textual citations, that ordinary people can understand (and there is no need for most people to actually go look up the citations).  Very often these authorities offer their interpretations in a manner that is charismatic, memorable, and convincing.  Their interpretations are all the more convincing when they happen to square with one’s own pre-existing beliefs about what the Bible or Constitution ought to say or mean.

So does all this mean the Protestant idea has no practical effect?  Quite the contrary.  The Protestant idea has an extremely important effect.  The normative premise that we all are able to read and interpret the text for ourselves means that we do not have to trust the priests in the temple; we do not have to trust the Justices who emerge from behind the curtain of the Court.  We get to decide for ourselves who to trust, whose interpretive authority to respect.  This is, as Jack says, a great theology for dissent.  We can decide we agree with people who say that on a particular question, all nine Justices got it wrong.

This is why Jack’s conception of constitutional Protestantism is linked in a such a deep way with his account of the role social movements play in constitutional change.  But in my view, the mechanism by which constitutional Protestantism empowers social movements to make constitutional changes has little to do with ordinary people literally reading the constitutional text and coming up with their own interpretations of its meaning. Read More

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What kind of constitution is the subject of this book?

First, thanks to Danielle and Jack for the opportunity to participate in this symposium.  I’m happy to do it because I think this is a fantastic book.

Among many other things, this book offers a particularly well-developed story about the role that stories play in constitutional argument and constitutional change.  I thought I’d start there, because that piece is at the foundation of the argument of the book.  Also it has the fun property that once you start thinking in its terms, you start seeing examples everywhere.  Indeed you see these moves even in debates that are not, explicitly, constitutional debates.

And this raises an interesting question: to what extent is this book about faith in the Constitution, and to what extent is it, instead, about faith and redemption in something like the broad political/constitutional project of the United States?  It is hard to separate these things.  But let’s look at places where the two might plausibly come apart.  Jack (citing Mark Graber) notes that in recent years, among liberals, the canonical example of a policy problem the constitution does not address is the distribution of income and wealth (132-33).  So let’s begin with the stories we tell about fiscal policy.

Last April, President Obama made a speech on the deficit and fiscal policy in which he offered a defense of Medicare, Medicaid, and unemployment insurance, along with Social Security.  He said: “From our first days as a nation, we have put our faith in free markets and free enterprise as the engine of America’s wealth and prosperity.  More than citizens of any other country, we are rugged individualists, a self-reliant people with a healthy skepticism of too much government.  But there’s always been another thread running through our history -– a belief that we’re all connected, and that there are some things we can only do together, as a nation.”  After discussing such collective projects as schools, science, the military, and the interstate highway system, Obama argued that Medicare, Medicaid, unemployment insurance, and Social Security were part of this “American belief that we are all connected,” which is in part a “conviction that each one of us deserves some basic measure of security and dignity.”  He argued, “We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.”

Rick Santorum sharply criticized these comments in a speech in June.  Santorum quoted the lines above and responded, “Ladies and gentlemen, America was a great country before 1965!”  When the applause died down, he continued: “Social conservatives understand that America is a great country because it was founded great.  Our founders, calling upon, in the Declaration of Independence, the Supreme Judge, calling upon Divine Providence, said what was at the heart of American exceptionalism.  In the Declaration of Independence it said ‘We hold these truths to be self-evident, that all men are created equal and endowed by our Creator with certain inalienable rights.’  You see, our founders understood that we were going to take the principles, Judeo-Christian principles, that had been out there for centuries, and we were going do something radical.  We were actually going to found a government upon these principles.”

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