Rule of Law

#PurpleChairChat: Supporting the Next Generation of Constitutional Progressives

CAC’s interns, Dylan Hosmer-Quint of Harvard Law, and Gilbert Orbea and Saja Spearman-Weaver of Yale Law, discuss the great work they have done over the summer and how to build the future of Progressive Originalism. 


ELIZABETH WYDRA:Hello everyone. I’m Elizabeth Wydra, President of the Constitutional Accountability Center. Thank you so much for joining us for our current edition of the Purple Chair Chat. We call these conversations Purple Chair Chats because normally we would be coming to you from the iconic purple wing chairs, in CAC’s Washington offices, but we like so many of you have been working from home during the Covid-19 pandemic and making do. 

So many of us have lost so much during these difficult times, and I sincerely hope that you are staying safe and well. 

Today’s Purple Chair Chat is very exciting to me because I’m joined by CAC’s summer law school interns Saja, Gilbert, and Dylan. Our fourth summer, intern Molina, unfortunately couldn’t join us today but she has been a fantastic addition to team CAC this summer, just like Saja, Gilbert and Dylan. So let’s jump right into it. Welcome to the three of you! Thank you so much for joining me today. 

So I’d like to start by going around and having you introduce yourselves, where you’re from, and tell us a little bit about what brought you to CAC? What attracted you to our work to make real, the progressive compromise of the Constitution. I’ll start with you Saja. 

SAJA SPEARMAN-WEAVER: Yeah, well, thank you for having us. It’s been fantastic. Working for CAC this summer. My name is Saja. I’m a rising 2L at Yale Law school. I’m largely focusing on civil rights work and specifically anti-discrimination work particularly with racial and gender discrimination. And I think what really brought me to see CAC besides hearing very positive reviews from interns who had worked here before was really trying to learn about ways that we can use sort of the founding document that we base American law on to really further the kind of politics that I’m hoping to commit myself to throughout my career. And I think often people think of constitutional laws being something more stagnant and something that doesn’t have as much sort of progressive potential in it, but this place seems to be trying to change that perspective. And I really wanted to be involved with that.  

ELIZABETH WYDRA: Thank you so much. Yeah, that’s exactly right. You know we talk about the many ways in which we try to reclaim the Constitution from this narrative, that it is a, you know, a conservative document and try to show the ways in which it can be a tool for liberation. So thank you so much for your great work. Gilbert, how about you? 

GILBERT ORBEA:Yea, I’ll echo Saja. Thanks so much for having us and it’s been a great, great summer internship. So my name is Gilbert. I’m also going to be a rising 2L at Yale law. I’m from Fairview, New Jersey, which is right across the river from New York. So I call myself an honorary New Yorker, but a lot of them would dispute that and what interested me in CAC and the mission that it has stems from job that I had before law school where I joined a small legal nonprofit and they had been trying to slow down the Trump Administration and a lot of the illegal executive, branch actions that agencies were doing and it was fun to be in that moment trying to make a difference and contribute to what I thought was really important cause. But there was a lasting impact of the Trump presidency in the judges that he had nominated and the judiciary becoming stacked with people who are unfortunately, not only unqualified according to the ABA, but who had a really skewed perception in my opinion of what the Constitution meant and ways of interpreting statutes. And so when I saw CAC and the mission that it has which is to provide a fuller and more honest picture of that document and a better way of looking at the values in this and the structure of the Constitution and what it means. I thought that is a great way to continue the work that the nonprofit I had been at had been doing to really try to fight back and make sure the judiciary does not have this distorted view. Of what, you know, the values of country and the Constitution that underlie is. And so it’s been a great time working here and I really believe in the mission and it’s fantastic that there’s an organization that does stuff like that.  

ELIZABETH WYDRA: Thank you so much for that Gilbert, You know, I love that. You know the focus on the way that the judiciary is a legacy that will live on beyond, you know, elections come and go, judges often stay for much longer than electoral consequences. So it’s really important that we focus on, you know, making progressive gains in the policy sector, but also in terms of who sits on the courts as well. It’s incredibly important. Obviously we make arguments to the judges. We need judges who will follow the law and not a political agenda when they get on the bench. So that’s incredibly important. Thank you. Last, but not least Dylan. 

DYLAN HOSMER-QUINT: Hey, everyone. I’d like to echo Saja and Gilbert that it has been a really great summer here at CAC and I appreciate the opportunity to work on these exciting cases. My name is Dylan, I’m a rising 2L at Harvard and I’m from Columbia, Missouri and I became interested in CAC, after watching the last two nominations to the Supreme Court. I was a senate staffer during the Brett, Kavanaugh nomination and I worked in judiciary reform organization during the Ruth Bader Ginsburg during her death and to the subsequent nomination and seen that rightward shift and given my interest in constitutional enforcement, the enforcement of statutory and other civil rights. I became interested in CAC’s vision of using, kind of the mindset and the motive analysis of the majority of the justices on the Supreme Court but using that for Progressive causes and trying to meet those justices where they are and make arguments that are comprehensible to them, but allow us to maintain our focus on progressive causes. 

ELIZABETH WYDRA: Thank you so much. Well, we are all thrilled that you found your way to us at CAC. You’ve, as I said at the beginning, you’ve been at just a tremendous asset to the organization of the team all summer. And you’ve been able to work on really interesting projects and really contribute in ways that we deeply appreciate and I’d like to talk with you about some of the interesting projects you’ve been working on that shows not only the breadth of your abilities and expertise, but also the breath, the of issues that we work on here at CAC. And Gilbert, I’d like to start with you.  

You worked on a project related to the American Rescue Plan, which is something that obviously a lot of folks have heard about. It’s a comprehensive plan aimed at trying to help the country, and all of us who live in it, recover from the devastating, economic, health, and other effects of the Covid-19 pandemic. And we know that because of systemic racism in this country a lot the effects of Covid-19 have fallen differently, particularly on people of color. And there are programs that acknowledge that and this plan and work specifically to aid those communities. And there have been challenges to these race-conscious programs, can you talk to us a little bit about your work on that? 

GILBERT ORBEA: Yeah, I helped prepare a memo that was analyzing all of the unfortunate lawsuits against these programs. The American Rescue Plan has two provisions in it, that specifically use race and sex and just generally recognize the fact that there have been socially disadvantaged groups of people in our country that have been more impacted than others during the pandemic. And I’ve tried to focus relief, efforts on them. So there’s a restaurant, revitalization fund that the Small Business Administration tried to prioritize getting, grants out to businesses, small restaurants owned by women and other socially disadvantaged it disadvantaged groups. And there was a USDA Department of Agriculture program that provided debt forgiveness for socially disadvantaged or ranchers and farmers, including Black farmers, Native American farmers, Hispanic farmers, and others, unfortunately, they were the target of lawsuits. Claiming that the government can’t discriminate on the basis of race and a lot of those lawsuits have been successful unfortunately by a lot of these judges that, as I mentioned, I think have an incorrect view of what the Constitution requires and promotes and so analyzing those lawsuits is really important to craft strong, better statutory programs that can survive those lawsuits. And also convinced these judges that these programs have a lot of value in this remedying past discrimination, that has been the focus of a lot of the Congressional findings in the lawsuit that were the reason for the program in the first place. 

ELIZABETH WYDRA: Thank you so much. Yeah. We’ve done a lot of work over the years at CAC to show that race-conscious programs that attempt to dismantle systemic racism, as well as specific instances of targeted discrimination of are fully in line with the Constitution’s text in history. In fact, the drafters of the Reconstruction amendments, you know, also passed legislation that set up race-conscious programs that were intended to, as I said, dismantle systemic racism and it’s effects as well as intentional discrimination. So thank you so much Gilbert for your work. I know I know it was very helpful. 

So again, showing kind of a shift in all of the work that we at CAC do and that all of you as summer interns work on. Saja, you’ve been working on a project related to accountability. Obviously accountability is in our name, it’s very important and we often look at issues related to doctrines that have been created that prevent accountability. Obviously, we’ve talked a lot about qualified immunity which unfortunately, often protects police officers and other government officials from accountability when they violate rights. But you did a project on sovereign immunity, as it relates to public defenders, who are considered to be part of the judicial branch and we’ve heard a lot about holding judges accountable in cases of sexual harassment and so on. But this was a really interesting project related to a pending fourth circuit case Roe versus United States. Can you talk to us a little bit about your work there? 

SAJA SPEARMAN-WEAVER: Yeah, absolutely. So this was this is an interesting project for me. Because as you said, I’ve most of my personal research about accountability and sovereign immunity has had to do with police officers. And so this sort of challenged me to look at the doctrine in a more generalized way, and has actually led to expanding my own personal research at Yale to try and look at immunity and sovereign immunity in new ways because I think it’s easy to sort of get in a silo thought, where you miss out on some of the statutory sort of potential around a certain, well, scrutinized issue. So this memorandum that I put together for CAC was largely looking into whether the federal public defender, in this case, Roe versus the U. S. Public defender’s office would have sovereign immunity. And so first, I looked into statutory history and the first sort of roadblock I had to get over was I think it’s dangerous to look at the text of the statute and only sort of interpret based on how others have in the past. And so one of the things that I was encouraged to do was to look at legislative and congressional intent when 

This U.S. code section 702 was put through, and it seemed to me pretty quickly that the intent was to protect civilians or citizenry from the sort of power imbalance that can come when you have essentially officers, of course, being protected by things that are perhaps by statutes that are more intended to protect the government as a whole and not necessarily enable individuals to profit from that overarching protection. And so I came to a few different conclusions. I think one, one thing that I’ll learn as I go through law school with how to narrow my conclusions down a little bit, but despite the fact that I think, you know, public defenders do fall within a category that on its face seems to be protected by sovereign immunity, If you really dive into what the founders seem to have wanted and what the best thing is for the country, you see, that you want individuals to not be profiting from things intended to protect, you know, the sanctity of a judicial system. And we’ve seen this, as you said, with cases previous, where courts have decided that federal judges cannot be essentially immunized from punishment after they’ve sexually harassed members of their clerkship or of their of their courts. And so now we’re hoping that that same sort of ideology can be transferred to other people who do fall with that under that umbrella of courts of the United States and we can really look at the intent of who was supposed to be protected by sovereign immunity and who needs to be sort of held accountable to individual actions. 

ELIZABETH WYDRA: Yeah, thank you so much and I wouldn’t be so hard on yourself having a lot of conclusions after you’ve done a lot of research is natural and important. And you know as you said it’s definitely— it’s a balance because you know immunity doctrines can be useful and valuable in very limited circumstances but we have to be very careful that we don’t that we don’t let them expand to the point that they prevent accountability that the basic structure of our court system, should be there to help promote. Ensuring that, you know, you have wrongdoing, both prevented and then held account held to account after it occurs. So, you know, having doctrines of the immunity can often get at that first part where you’re not really preventing it because there is an idea of immunity later. So that’s really important work that you’re doing. Thank you so much. And last but not least, we have Dylan. 

Dylan, thank you so much for the work that you’ve done on a lot of different areas of constitutional protections when it comes to the criminal justice system, you worked on a memo about curtilage in the Fourth Amendment context. Also issues of the confrontation clause in the Sixth Amendment. Can you talk to us a little bit about that work that you’ve done.   

DYLAN HOSMER-QUINT:Yeah, so one of the interesting things about working here, this summer is that we’ve had the opportunity to work on a variety of different cases that includes both civil enforcement of statutory rights, but also some criminal appellate stuff and these the Fourth Amendment, the Fourth Amendment memo that I worked on in the sixth amendment. One both gave me a chance to see kind of what criminal appellate defense work would look like as a potential career. So that’s useful as an intern. The curtilage issue is about the Fourth Amendment which protects people’s security in their homes and persons, but it doesn’t really define what homes means. So the purpose of the memo was to look back at the history of the word home and how it was used to protect people’s houses and that’s where you get to this concept of curtilage which is the area around someone’s house that for Fourth Amendment purposes has been treated as the home and the reason that that’s significant now is because now a lot of Americans, I don’t know the numbers, but a huge number of Americans live in apartments where you don’t own the area directly outside of your home and some courts have held that that does not apply a give curtilage protection to those Americans and that creates a class distinctions and race distinctions for Fourth Amendment protections and it’s really not, there’s not a good justification in the history and the text of the Fourth Amendment for excluding those people from Fourth Amendment protections. So the project for the Constitutional Accountability Center was looking at that history and writing it up to gather the information in case CAC wanted to file on the case. We’re not working on a case at this moment and the Sixth Amendment case is somewhat similar. It’s about the Right of Confrontation which is something that has roots in in the English Common Law as well that criminal defendants should have the right to confront their accusers to cross-examine to ask questions of have that testimony tested before the jury, or before the judge. And since then, since the founding era, sentencing and the guilt phase of prosecutions have been split and the Supreme Court has held that the Right of Confrontation doesn’t apply at the sentencing phase. And now that sentencing has become the predominant phase of the prosecution, for many criminal, defendants with plea bargaining that basically excludes that constitutional right for the vast, in the vast, majority of cases and it’s also important in death penalty cases, where after the guilt phase, there’s presenting new evidence about whether or not the person has aggravating and mitigating circumstances and those often aren’t tested under the confrontation rights. So the purpose of that project was again to restore the confrontation right to what the Founders intended.

ELIZABETH WYDRA: Thank you so much, Dylan. And I, you know, I really want to lift up that point that you made about the Fourth Amendment curtilage doctrine. You know, so many times, I think law, students and lawyers, and just folks who live here in the United States, can think about legal doctrines in kind of these neutral abstract ways but it’s really important to think about the ways in which something can seemingly be developed in this neutral context. But in fact, when it’s applied it has very disparate effects on intersectional basis like race and class that you brought up with respect to the curtilage requirement and doctrinal development in the courts and it’s really important to call that out when we’re talking about these constitutional doctrines. So thank you. So I want to just quickly get to something that we about at CAC a lot which is this idea of Progressive Originalism, that word is so loaded. And I wish that we came up with a better term for it, because there’s so much baggage associated, I think in a lot of ways rightly so, with the idea of originalism, but basically, at CAC what we do is take the Constitution’s text and history and shine a light on the way that this story which is a story of both tragedy and hope and betrayal of ideals and promise for the future is a story about ac of progress and the way that especially those of us who were excluded from the founding promises wrote ourselves into the story by amending, the Constitution and fighting generation after generation to change the words of the Constitution to be more inclusive and more equal and more just.  

So I’d love if anyone has any thoughts about that if you could share them before we close out with a round of fun facts about everyone. So first, I’d love to hear your take on that topic which is definitely a topic of debate. 

SAJA SPEARMAN-WEAVER: I’d love to say something just because I’m often the first one to be a loud mouth on these platforms. But I will say that, you know, first coming into CAC, I had a little bit of trepidation, just because my own work and my background has been in, as I said before, you know, anti-race discrimination work and anti-gender discrimination work. And I think as we all know, the original Constitution left a lot of intersections of identities out of out of its protective shield. And I had to spend a little bit of time, sort of grappling with what it meant to try and use the Constitution in a proactive progressive way. And I’m so grateful that I’ve done this work this summer because I think I’ve in a place right now where I think there’s a few different ways that you can try and secure the kind of protection and uplift that all people deserve here. And I think one of them is to sort of instead of fighting against all of the inaccuracies and prejudices and racism and sexism in the original Constitution. Instead, look at the sort of great ideal that the Founders envisioned for themselves being, you know, wealthy property-owning White Men and then say, okay well, we love those ideals. Now, why don’t we allow everyone to have them? Why don’t we sort of expand the vision of this, you know, perfect shining country to everyone who’s in it and obviously, it’s a work in progress. Obviously, it’s not something that works every time. And there are certain parts of the Constitution as a document, that I will simply never agree with and I’ll never want to really work with personally, but there are other parts of it that I think contain the seeds of like actual protection for everyone and actual uplift for everyone. And so I think it’s just like any other document where you can’t get so caught up in the worship of it that you, you know, expect it to be perfect and you can’t just kick it to the curb and say, you know, oh, it wasn’t perfect to begin with so let’s just give up on it because it has so much potential and I think it’s like anything.  

If you recognize the flaws in it and like work with them and also recognize the potential in it and encourage other people to see it your way, it can just be a really great foundation upon which to, you know, instead of tearing it all apart, and starting over just seeing the possibility within it. And that’s like a new perspective for me from this summer, so I’m really grateful to have it. 

ELIZABETH WYDRA: I love that that is so thoughtful and beautiful and I think you’re you know you’re absolutely right. This you know the constitutional story is one of progress definitely not perfection and you know it’s something that we work all the time to recognize that these guarantees and the document are not always a lived reality for far too many people in this country and our work and what we do and our litigation and our policy work and everything we do at CAC is to make more real that progressive promise of the Constitution, both its potential and its actual written guarantees. So I really appreciate that perspective. How about you Gilbert or Dylan? 

GILBERT ORBEA: Yeah, I would echo everything that Saja said, I think personally, I think about, for example, my parents who are immigrants from Cuba and I think the United States has a strong tradition of welcoming immigrants and recognizing the necessity of immigrants to our economy and our culture and the value that they provide. But at the same time, we have denigrated immigrants a lot and have had, you know, ugly xenophobic phases in our history. I think that’s a really good parallel to what the Constitution and the values of the United States are sometimes. It’s a constant struggle back and forth between the forces that recognize the good seeds and the underlying values that so many people and so many movements in the country have tried to put forward at the same time that sometimes we deal with counter currents, that try to stifle that progress. And so I think about the Civil War, that we fought to fix one of the original sins of the Constitution and I think about the New Deal and how it finally overturned this, this reticence to have social welfare and safety nets that Congress could provide for People based on a misunderstanding of what the Constitution required. And even think about Lawrence v. Texas. And finally coming around to the fact that the Constitution shouldn’t be treating people differently just because of their sexual orientation and it never meant to and it was just misunderstanding on the part of judges in history for a really long time. And so, those constant struggles are at one point turned me away from the Constitution and originalism, and I always thought it was bunk for a really long time. But when you actually sit down and think about the arc of how things have come and it’s unsteady and it doesn’t go, you know, two steps forward always, there will be steps back, but over the course of it, I think we’ve gotten closer to realizing what it is, and the progressive strands, and thoughts that underlie the whole project if you’re only willing to fight for it over the long term. 

ELIZABETH WYDRA: I love that. Yeah, you know, one of the things that bothers me about the term originalism is that I think so many folks think of it and I think because of conservative originalists who have this focus of the Constitution as it stood, you know, in 1789, when so much of the work of CAC when we talk about the Constitution’s text and history is part of Progressive Originalism is about these changes that happen to the Constitution, over time, after the Civil War that you referenced where we wrote equality for all into the Constitution, we wrote protections for all including and especially non-citizens and immigrants to this country into the Constitution and recognizing the importance of those changes in the way that they changed us and our Constitution for the better. And we continually need to work as you talked about in Lawrence vs, Texas to make them real. Finally, Dylan. 

DYLAN HOSMER-QUINT:Yeah, I’d echo both the things that Sasha and Gilbert said, and I’d also add that a lot of the debate that we have now about constitutional law, or debates that have been had for a very long time. And so, I think sometimes the voices that are lifted out of those debates by conservative originalists are different than the voices that Progressive Originalists would lift out. And so, I think Progressive Originalism has a role there to be a counterbalance. For example, before the 14th Amendment is often used as cudgel against race-conscious, remedial statutes and in fact the people that drafted it, followed it up with a race-conscious remedial statute and there’s a lot of history there and a lot of debates there that are useful and in helping Progressive Originalists, both draft statutes to continue that work but also defend those statutes in court before often judges, who often have originalist tendencies. 

ELIZABETH WYDRA: That’s so right. It’s a great way of putting it. Lifting up different voices from history that’s so important. And finally as we close out we want to have a lightning round of a fun fact about all of you. Because in addition to being super smart lawyers to be as everyone just saw demonstrated over this last 20 to 30 minutes. You are also wonderful people and wonderful humans in and of yourselves. So, let’s go. Lightning round, fun, fact. Dylan, I’ll start with you.  

DYLAN HOSMER-QUINT:I used to be a pretty good harmonica player.  

ELIZABETH WYDRA: Wow! I did not know that. We need to have a CAC concert.  Gilbert. 

GILBERT ORBEA: I can speak Chinese. 

ELIZABETH WYDRA: Nice! that’s great. Saja. 

SAJA SPEARMAN-WEAVER:I’m really praying that we’ll have a CAC softball game at some point because I used to be a pretty good Fastpitch Softball pitcher.  

ELIZABETH WYDRA: Wow. That’s very impressive. 

SAJA SPEARMAN-WEAVER: Or one against Harvard. I’d take that too.  

ELIZABETH WYDRA: Okay, I think that’s a challenge everybody.  

ELIZABETH WYDRA: Thank you so much for being with us today, and chatting about your thoughts and your work, and who you are, and what you believe in and fight for, I’m honored that I get to work with you this summer and that you joined all of us at CAC and can’t wait to see all the good that you do in the world. Thank you so much for joining us. Thank you for everyone watching. You can find out more about CAC at Please be well. Thank you.