Vanderbilt Law School Program in Constitutional Law & Theory and The American Constitution Society Present KEEPING FAITH WITH THE CONSTITUTION IN CHANGING TIMES October 6-7, 2006 Flynn Auditorium Vanderbilt Law School What does it mean to be faithful to the meaning of the Constitution? Can progressive approaches to constitutional interpretation persuasively lay claim to principle, fidelity, adherence to the rule of law and democratic legitimacy? How can these approaches be effectively communicated and made part of the public debate about the Constitution? A diverse group of scholars, lawyers, journalists and judges will address different aspects of this inquiry over two days of panel discussions and roundtable conversations during “Keeping Faith with the Constitution in Changing Times,” a conference sponsored jointly by Vanderbilt Law School’s Program in Constitutional Law & Theory and the American Constitution Society for Law and Policy. CONFERENCE SCHEDULE Friday, October 6 8:45-9:15 Continental Breakfast in North Lobby 9:15-9:45 Opening Remarks Dean Ed Rubin, Vanderbilt Law School Lisa Brown, Executive Director, ACS 9:45-10:30 Origins of the Debate over Originalism and the Living Constitution (Christopher Yoo, Moderator) Barry Friedman Howard Gillman 10:30-10:45 Break 10:45-12:15 Constitutional Fidelity Over Time (Ed Rubin, Moderator) Erwin Chemerinsky Marty Lederman John McGinnis 12:15-1:30 Lunch North Lobby 1:30-3:00 The Varieties of Historical Argument (Deborah Hellman, Moderator) Peggy Cooper Davis Robert Gordon Richard Primus Keith Whittington 3:00-3:15 Break 3:15-4:45 A Dynamic Rule of Law: Using Text, Structure and History to Derive Constitutional Meaning (Doni Gewirtzman, Moderator) Jack Balkin Michael Greve Kermit Roosevelt 5:30-7:30 Reception and Kickoff Event for Nashville ACS Chapter North Lobby CONFERENCE SCHEDULE Saturday, October 7 8:30-9:00 Continental Breakfast in North Lobby 9:00-10:30 Constitutional Fidelity over Time and Democratic Legitimacy (Lisa Bressman, Moderator) Rebecca Brown Frank Michelman Robin West 10:30-10:45 Break 10:45-12:15 Beyond the Ivory Tower: Translating Ideas into Action (Andrew Pincus, Moderator) Melody Barnes Pamela Karlan Edward Lazarus William Marshall 12:30-1:45 Lunch and Judicial Perspectives – A Conversation (Stefanie Lindquist, Moderator) Judge Theodore McKee Judge Gilbert S. Merritt CONFERENCE PARTICIPANTS Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He is the founder and director of the Information Society Project, devoted to the study of law and new information technologies. He is the author of over seventy scholarly articles and has written op-eds and commentaries for many newspapers. He writes political and legal commentary at the weblog Balkinization (http://balkin.blogspot.com). Professor Balkin’s work ranges from theories of cultural evolution to legal and musical interpretation. His books include Processes of Constitutional Decisionmaking (5th ed., with Brest, Levinson, Amar & Siegel); What Brown v. Board of Education Should Have Said; What Roe v. Wade Should Have Said; Cultural Software: A Theory of Ideology; and The Laws of Change: I Ching and the Philosophy of Life. Melody Barnes is the Executive Vice President for Policy at the Center for American Progress. From 1995 until 2003, she served as chief counsel to Senator Edward M. Kennedy on the Senate Judiciary Committee. Ms. Barnes has served as Director of Legislative Affairs for the U. S. Equal Employment Opportunity Commission and as assistant counsel to the U.S. House of Representatives Judiciary Subcommittee on Civil and Constitutional Rights, where she worked closely with Members of Congress and their staffs to pass the Voting Rights Improvement Act of 1992. Ms. Barnes began her career as an attorney with Shearman & Sterling in New York. She is a member of the Board of Directors of The Constitution Project, The Maya Angelou Public Charter School, The Moriah Fund, and Progress Through Action. She received her law degree from the University of Michigan and her bachelor’s degree from the University of North Carolina at Chapel Hill where she graduated with honors in history. Lisa Schultz Bressman has established herself as an innovative scholar in administrative law. A graduate of the University of Chicago Law School, Professor Bressman joined the Vanderbilt Law School faculty in 1998 after working in the Office of Legal Counsel in the Department of Justice and clerking for Supreme Court Justice Stephen Breyer and now-Second Circuit Judge José Cabranes. Her research explores the intersection between constitutional theory and administrative law. She is particularly interested in the extent to which political control and judicial review improve the legitimacy of agency decisionmaking. Professor Bressman teaches Administrative Law, Constitutional Law I, Legal Process, and Government and Religion. She is Co-Director of the Vanderbilt Regulatory Program. She also serves as faculty advisor to the Vanderbilt chapter of the American Constitution Society. Rebecca L. Brown is the Allen Professor of Law at Vanderbilt Law School. After earning her B.A. at St. John’s College in Annapolis and her J.D. at Georgetown, she clerked for then-Chief Judge Spottswood Robinson III, of the D.C. Circuit, and for Supreme Court Justice Thurgood Marshall. She served as an attorney advisor in the Office of Legal Counsel of the Department of Justice, and as an associate at the law firm of Onek, Klein & Farr, before joining the Vanderbilt faculty in 1988. Her scholarship has focused primarily on developing an understanding of the Constitution premised on a relationship between equality and individual liberty. She teaches courses in constitutional law and theory, and is a convenor of the Annual Constitutional Theory Conference jointly sponsored with the NYU and University of Pennsylvania law schools. Currently, she serves as co-chair for the ACS Issue Group on Constitutional Interpretation and Change, and as a member of the Board of Advisors for the Nashville Chapter of the ACS. Erwin Chemerinsky, Alston & Bird Professor of Law and Professor of Political Science, joined the Duke faculty after 21 years at the University of Southern California Law School, where he was the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science. Before that he was a professor at DePaul College of Law and practiced law with the United States Department of Justice, and at Dobrovir, Oakes & Gebhardt in Washington, D.C. He received his B.S. from Northwestern University and J.D. from Harvard Law School. Author of four books and over 100 law review articles, Professor Chemerinsky writes a regular column on the Supreme Court for California Lawyer, Los Angeles Daily Journal, and Trial Magazine, and is a frequent contributor to CONFERENCE PARTICIPANTS newspapers and other magazines. In April 2005, he was named by Legal Affairs as one of “the top 20 legal thinkers in America.” He has received numerous awards for his contributions to civil liberties and public service. He has argued many appellate cases and has testified many times before congressional and state legislative committees. Peggy Cooper Davis, John S. R. Shad Professor of Lawyering and Ethics and Director, Lawyering Program, joined the New York University School of Law faculty in September 1982, after having served for three years as a judge of the Family Court of the State of New York and having engaged, during the preceding ten years, in the practice and administration of law. Her scholarly work has been influential in the areas of child welfare, constitutional rights of family liberty, legal pedagogy, and interdisciplinary analysis of legal process. Her 1997 book, Neglected Stories: The Constitution and Family Values, illuminated the importance of antislavery traditions as interpretive guides to the meaning of the Fourteenth Amendment. As a co-founder of the Lawyering Theory Colloquium, she has been among the pioneers in scholarly study of law “in use” by practitioners, judges, and claimants. She received her J.D. from Harvard Law School and her undergraduate education at Western College for Women and Barnard College. Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law. He has written extensively in constitutional theory, judicial behavior, and federal courts. He is the co-editor of (and contributor to) the recent book, Judicial Independence at the Crossroads: An Interdisciplinary Approach. Professor Friedman is a frequent participant at legal history and political science conferences, as well as those in law. He also is a convener of the Annual Constitutional Theory Conference. He has been a visiting scholar at the Rockefeller Foundation Study and Conference Center in Bellagio, Italy. Professor Friedman has engaged in a range of service activities, including extensive involvement with the American Judicature Society. He currently serves on the Steering Committee of New York University’s Institute for Law and Society, and as Director of the Furman Program, devoted to preparing young scholars for academic careers. Doni Gewirtzman is currently the Vanderbilt Fellow in Law at Vanderbilt Law School. Prior to his arrival in Nashville, Professor Gewirtzman served as the co-Associate Director and Acting Assistant Professor of Law at New York University’s Lawyering Program. After graduating from Boalt Hall in 1998, he began his legal career as a Skadden Fellow at Lambda Legal Defense and Education Fund, and later joined the litigation department at Paul, Weiss, Rifkind, Wharton and Garrison in New York. His most recent article, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, was published in the March 2005 edition of the Georgetown Law Journal. Howard Gillman is Professor of Political Science and Associate Vice Provost for Research Advancement at the University of Southern California; he also holds courtesy appointments in the Department of History and the Gould School of Law. He received his Ph.D.