Notes on Caroline Fredrickson

Summary:

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Congress gets more power – democracy is bolstered, more representatives in the Senate – and the judicial branch less power to overrule federal legislation.

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Does not actually specific any positive rights, but rather expands the framework for the people and states to legislate various forms of welfare, etc.

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Fredrickson does not believe the Constitution and its underlying philosophy are inherently opposed to a progressive vision. It was created as an adaptable "living document."

Bio

SHORT: Caroline Fredrickson is a Distinguished Visitor from Practice at Georgetown Law and a senior fellow at the Brennan Center for Justice. She is the author of three books, including The Democracy Fix: How to Win the Fight for Fair Rules, Fair Courts, and Fair Elections.

LONG: On April 9, 2021, Professor Fredrickson was named to the Presidential Commission on the Supreme Court of the United States. Caroline Fredrickson served as the President of the American Constitution Society from 2009-2019, where she helped grow ACS, which now has lawyer chapters across the country, student chapters in nearly every law school in the United States, and thousands of members throughout the nation. She was an eloquent spokesperson for ACS and the progressive movement on issues such as civil and human rights, judicial nominations and the importance of the courts in America, marriage equality, voting rights, the role of money in politics, labor law, and anti-discrimination efforts, rule of law, congressional oversight, and separation of powers, among others. This fall, she will join Georgetown Law as a Visiting Professor.

Fredrickson has published works on many legal and constitutional issues and is a frequent guest on television and radio, including serving as a regular on-air commentator on impeachment. In addition, she regularly contributes opinion pieces for The New York Times, The Washington Post, and other news outlets. She is also the author of Under The Bus: How Working Women Are Being Run Over, The Democracy Fix: How to Win the Fight for Fair Rules, Fair Courts, and Fair Elections, and most recently, The AOC Way.

Before joining ACS, Fredrickson served as the Director of the ACLU’s Washington Legislative Office and as General Counsel and Legal Director of NARAL Pro-Choice America. In addition, she served as the Chief of Staff to Senator Maria Cantwell, of Washington, and Deputy Chief of Staff to then-Senate Democratic Leader Tom Daschle, of South Dakota. During the Clinton Administration, she served as Special Assistant to the President for Legislative Affairs.

Fredrickson is currently an elected member of the American Law Institute, co-chair of the National Constitution Center’s Coalition of Freedom Advisory Board, a member of If/When/How’s Advisory Board, and on the boards of American Oversight and the National Institute of Money and Politics. In 2015 Fredrickson was appointed a member of the Yale Les Aspin Fellowship Committee.

Fredrickson received her J.D. from Columbia Law School with honors and her B.A. from Yale University in Russian and East European Studies summa cum laude, phi beta kappa. She clerked for the Hon. James L. Oakes of the United States Court of Appeals for the Second Circuit.

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Caroline Fredrickson is Distinguished Visitor from Practice at Georgetown Law Center, Senior Fellow at the Brennan Center for Justice and author of The Democracy FixUnder the Bus, and The AOC Way: The Secrets of Alexandria Ocasio-Cortez’s Success.

She joins me this Sunday for part two of my series on the National Constitution Center's brilliant experiment, which solicited revisions to the Constitution from three teams: one libertarian, one conservative, and one progressive.

Which team Caroline will be representing?

You guessed it – find out what "Team Progressive" prioritized in their rewriting of our founding document, and how the balance of power would shift among the branches of government.

If you missed my show with Timothy Sandefur, you can listen to the podcast or read the transcript to get up to speed on the libertarian perspective. I've decided to interview a representative from each team, and am delighted to welcome Caroline to the show of ideas, this Sunday, 11/21 - 8am PACIFIC.

Your calls are welcome at (424) BOB-SHOW.

Articles/Reviews

Preamble: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty and Equality to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Many progressive believe the constitution is inherently antithetical to a progressive vision:

progressives have loudly complained that the Constitution ratified in 1788 was designed for an agrarian society of slaveholding white males... It created sclerotic political institutions that are frightfully ill-equipped to meet the demands of a modern, global, and pluralistic society.

The team says otherwise.

the original Constitution establishes a structure of divided government that is a necessary precondition for a constitutional democracy with robust protections for individual rights.
As progressives, we believe in democracy rather than government by judiciary, and that is why we have approached the document in this fashion. At the heart of our progressive Constitution is an accountable and inclusive political process.
  1. Free and Fair Elections
    1. eliminate electoral college
    2. regulate first amendment's reach applied to elections - campaign spending, etc.
  2. Accountable and inclusive governing bodies
    1. Makes the Senate more representative, like the House.
      1. "there would be 126 Senators, of which California would have 13, Texas 9, and Florida 7. Twenty-two states (including D.C.) would have one Senator."
  3. Real Checks and Balances
  4. Makes impeachment easier

    As a necessary complement, Congress’s oversight authority over the executive branch must be made more explicit to ensure it can effectively police wrongdoing in program administration or otherwise, and as an integral part of its legislative power, which requires information and testimony from administration officials. And to ensure that the law enforcement power of the federal government is not abused for partisan gain, the Attorney General must receive the votes of two-thirds of Senators to be confirmed, ensuring that they have the trust of a supermajority of Senators.
  5. Ensuring effective governance
    1. Gives Congress authority to legislate for the general welfare, and establish independent agencies, as well as delegate partially to the executive branch.
    2. Term limits for supreme court justices.
  6. Updating the Constitution
    1. Makes amendment easier.
  7. Establishing Real Equality
    1. Enshrines gains from legislation and court decisions into the constitution,
    2. Protections for woman and LGBT
  8. Fundamental Rights
    1. "We also have sought to update the Fourth Amendment’s protections against search and seizure to meet the challenges of modernity."
    2. enshrines freedom of conscience into the first amendment
    3. "One persistent criticism of the existing Constitution is that it is a document of negative rights, as opposed to positive entitlements. We took this critique seriously, and considered including specific positive entitlements as part of our reimagining of the document. In the end, however, while our draft does specify that government omissions may, in some cases, give rise to a constitutional violation, we concluded that strengthening democratic institutions would provide greater opportunities for the People to speak on the issue of such entitlements, working within the framework of federal and state governments, constitutions, and laws to create a more robust framework of rights and freedoms. This more modest approach to rights, we believe, is consistent with our approach to this project, the Framers’ approach to the original Constitution, and progressive constitutionalism more generally."
By Fredrickson

Book review of "The People's Constitution"

The delegates in Philadelphia were not its only framers; the Constitution has been shaped by the millions of Americans who have voted for, organized for, and at times literally fought for change. And according to Kowal and Codrington, the upshot of these latter-day framers’ work has been immensely positive. They have made the U.S. Constitution “more democratic, more inclusive, and more responsive to the needs of a changing country.”

On Textualism and Originialism

The Peoples Constitution implicitly dismantles these theories. The Constitution, Kowal and Codrington demonstrate, has always been a malleable document. Any good-faith interpretation must accept that its meaning is defined by its shifts. And the authors show that the amendments have moved it almost entirely in one direction: left. The most honest way to read the Constitution, then, isn’t as a static, 18th-century creation. It’s as a living, liberal document.

Fredrickson notes that the original document was only passed because the process guaranteed the addition of amendments - thus it is a living document.

But the Constitution’s scaffolding did not come off after the first 10 amendments.
The next two amendments were also highly transformative. The Fourteenth Amendment guaranteed citizenship for everyone born in the United States. It further empowered the federal government by imposing important limits on state governments—banning them from passing laws abridging the privileges or immunities of citizens, prohibiting them from depriving any person of life, liberty, or property without due process, and demanding that everyone receive equal protection under the law. The Fifteenth Amendment also curtailed states’ rights by enshrining Black men’s right to vote, overriding laws in both the South and the North.

Obstinate justices are the biggest threat to Fredrickson's vision of the constitutional order:

Famous for such decisions as Lochner vNew York, which invalidated a state law regulating bakery working conditions, the Court viewed any restrictions on the power of private wealth as illegitimate and unconstitutional. This now largely discredited jurisprudence, rooted in laissez-faire economics and vague notions of “natural law,” ran counter to the amendment’s text and history. Over four decades, it was a powerful brake on the people’s ability to address new and unprecedented social harms.

She champions the 17th amendment among other "innovations":

This has not stopped right-wing judges from acting as if they have won. Over the past 15 years, the Supreme Court has ruled that Congress cannot compel individuals to purchase products (the first Affordable Care Act challenge), that the government cannot seriously restrict campaign contributions (Citizens United), and that individuals have a right to own guns (District of Columbia vHeller). These cases run directly counter to both the content and historical trajectory of the Constitution. They effectively ignore centuries of amendments enhancing the power of the federal government.
As Justice Thurgood Marshall once said, “ ‘We the People’ no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.”
by Jeffrey Rosen
The results surprised us. As expected, each of the three teams highlights different values: The team of conservatives emphasizes Madisonian deliberation; the progressives, democracy and equality; and the libertarians, unsurprisingly, liberty. But when the groups delivered their Constitutions—which are published here—all three proposed to reform the current Constitution rather than abolish it.
All three teams agree on the need to limit presidential power, explicitly allow presidential impeachments for non-criminal behavior, and strengthen Congress’s oversight powers of the president.

Progressives emphasize equality and "progressive constitutionalism" and would make the Senate more representative.

Their proposed Progressive Constitution would also codify judicial and legislative protections for reproductive rights and against discrimination based on gender, sexual orientation, gender identity, pregnancy, and childbirth.

What about the libertarians?

The authors of the proposed Libertarian ConstitutionIlya Shapiro of the Cato Institute, Timothy Sandefur of the Goldwater Institute, and Christina Mulligan of Brooklyn Law Schoolemphasize their intent to clarify the original Constitution, not replace it. “At the outset,” they write, “we joked that all we needed to do was to add ‘and we mean it’ at the end of every clause.” Their particular focus is resurrecting limitations on the commerce clause. Since the New Deal era, the Supreme Court has interpreted the commerce clause to grant Congress essentially unlimited power to regulate anything that might have a tangential effect on interstate commerce. The libertarians would allow regulation only of actual interstate commerce, not of noncommercial activity that takes place within one state. They would also limit federal power in other ways, requiring all federal regulations to be related to powers enumerated in the Constitution and prohibiting the federal government from using its powers of the purse to influence state policies. Like the conservative team, the libertarians would return the selection of senators to the states, in the hope of promoting federalism. The libertarians also include a series of other restrictions on state and federal power to protect economic liberty, such as limiting the states from passing rent-control or price-control laws, prohibiting the states and the federal government from subsidizing corporations, providing for a rescission of national laws by a two-thirds vote of the states, and requiring a balanced federal budget.

Book Summaries

The former special assistant for legislative affairs to President Clinton, president of the American Constitution Society, and author of the “damn fine” (ElleUnder the Bus shows how the left can undo the right’s damage and take the country back.

Despite representing the beliefs of a minority of the American public on many issues, conservatives are in power not just in Washington, DC, but also in state capitals and courtrooms across the country. They got there because, while progressives fought to death over the nuances of policy and to bring attention to specific issues, conservatives focused on simply gaining power by gaming our democracy. They understood that policy follows power, not the other way around.

Now, in a sensational new book, Caroline Fredrickson—who has had a front-row seat on the political drama in DC for decades while working to shape progressive policies as special assistant for legislative affairs to President Clinton, chief of staff to Senator Maria Cantwell, deputy chief of staff to Senator Tom Daschle, and president of the American Constitution Society—argues that it’s time for progressives to focus on winning. She shows us how we can learn from the Right by having the determination to focus on judicial elections, state power, and voter laws without stooping to their dishonest, rule-breaking tactics. We must be ruthless in thinking through how to change the rules of the game to regain power, expand the franchise, end voter suppression, win judicial elections, and fight for transparency and fairness in our political system, and Fredrickson shows us how.

Understanding and applying the wisdom of Congresswoman Alexandria Ocasio-Cortez!

In an incredibly short time, Alexandria Ocasio-Cortez has galvanized the country on issues of national importance. This young member of Congress has motivated Democrats to confront climate change and income inequality and is upending conventional wisdom about how young women, especially women of color, are supposed to behave.  Her background, including a family that fell out of the middle class due to health care challenges, has driven her to champion those on the margins, such as low-wage workers, immigrants, people of color, and younger people who face a future of climate disruption and instability.

This book takes life lessons from the rising star known as AOC and offers readers a chance to apply them to their own lives.  In five chapters,

The AOC Way weaves substantive issues and AOC’s experiences to understand how she so quickly came to dominate media coverage in America but also to drive real change in what seems like a lightening flash. AOC has demonstrated some key values and commitments on her way to success, such as believing in yourself and not letting haters take you off course; working hard and being prepared to prove your talents; bringing your experiences to your work by not forgetting how you got where you are; challenging the status quo; and staying true to your friends and allies.

Videos & Podcasts

We the People, November 26, 2020

See supplemental

Specific comments during impeachment