Rob Hunter

Judicial Review, Economic Inequality, and the Power of Money

Earlier today the Supreme Court refused, in a 5-4 party line vote, to reconsider Citizens United and struck down a century-old Montana law regulating corporate spending in state elections. You can read all about the gory details elsewhere (it’s worth noting that the ruling might not be that much of a setback to proponents of campaign finance reform); but here are my two cents:

First, the Court simply assumed its own facts and basically ignored the Montana legislature’s findings of fact. The incredibly compressed reasoning of the majority seems to come down to this: “The ruling in Citizens United applies in this case; despite what the Montana Supreme Court may say, we say that this case is not meaningfully different, and therefore Montana may not limit corporate campaign contributions.” Much like in the oral arguments in which the justices considered the Affordable Care Act, several of the Court’s conservative justices suppose themselves to be policy experts and are apparently uninterested in deferring to legislatures.

Second, there is the possibility, at least, that this case may help to galvanize a counter-mobilization against Citizens United by linking conservative constitutional principles—in this case, the authority of state legislatures, or “states’ rights”—to the cause of campaign finance reform. A quick glance at the various online redoubts of right-wing activism suggests that many movement conservatives are cheering the majority’s decision, but I wonder about the extent to which they are simply closing ranks with co-partisans. At any rate, the state of Montana may make for a more sympathic protagonist in the fight against corporate “speech” sanctioned by the Supreme Court.

Finally, political scientist Henry Farrell’s take on the broader problems that are limned by this case is well worth reading; I tend to agree with him that deeping economic inequality coupled with an increasingly formal—not to say literal—reading of freedom has the practical consequence of further empowering the wealthy and depriving the increasingly numerous poor of any real political agency. Today’s ruling will certainly do nothing to reverse this trend, or to make it any easier for the majority of persons who are not corporations to have their voices heard.

Popular Constitutionalism and Political Parties

Parties as Platforms for Popular Constitutionalism

The major parties in the contemporary U.S. are ideologically polarized and, currently, come closer now than they often have in the past to acting with parliamentary levels of discipline. (Well, alright, maybe only the Republicans are currently capable of acting with a high level of intra-party discipline, to the detriment of Senate comity and federal budget policy.)

We can complain about how (asymmetric) ideological polarization between the two parties is detrimental to democratic politics, to policy-making, to the state of political discourse, and so on. Certainly, extreme, hostage-taking antics from hyperpartisans did no one any favors during what is now apparently only the first of many debt ceiling battles, back in 2010. But for better worse, the parties are now closer to being ideological coalitions, rather than sectional congeries, or uneasy alliances of groups with interests that sometimes overlap and sometimes conflict.

What the major parties are not are “factions,” which James Madison worried about at length in the Federalist. Madison comes from a long line of political theorists worried about groups within larger communities using power to enrich themselves at the expense of the public good. But ideological parties are not factional parties in this sense; instead they seek to advance particular agendas or visions of how the economy should be structued and regulated, whether and how certain rights or liberties should be enforced, how the country should conduct its foreign relations, and so on. There can be better or worse approaches to these questions – that is to say, some ideologies are to be preferred over others. But both parties today pursue ideologies at the national level. In glib terms, the Republicans favor austerity, while the Democrats favor social provision; the Republicans favor national unity, while the Democrats favor cultural pluralism, and so on. These are not, however, “factional” agendas that are pursued simply or solely for the sake a partiular sub-group. For examples of that kind of behavior we have to look to the past – for example, to the antebellum Democrats, dominated by a powerful southern pro-slavery wing. Nowadays, although individual party politicians strive to serve their local constituencies (of course!), they do so in concert with a broader ideological agenda that has implications for the nation as a whole.

Popular constitutionalists should, I think, embrace partisan politics. They should not join the discordant and ultimately futile chorus of those who decry parties as divisive or (gasp!) “negative.” Politics consists of disagreement, and political disagreement can run deep – hence party polarization. For the purposes of popular constitutionalists, who want to democratize the interpretation of cosntitutional meaning, modern parties offer powerful tools for advancing new constructions of constitutional meaning and giving them force and efficacy in the social world. The Republicans – at least insofar as they are substantially constrained by various internal factions such as the Tea Party – are currently in a better position to do this than the Democrats, who remain somewhat less of an ideological party and more of a “big tent” party.

It’s important to note that embracing parties in the pursuit of constitutional change means abandoning, or at least devoting less energy to, the “traditional” process of constitutional amendment that is outlined in Article V. Such a shift should, I think, be welcomed – but that’s a topic for another post.

Constitutional Dysfunction and Constitutional Criticism

Sanford Levinson has a post on the New York Times’s “Campaign Stops” blog, in which he presents a condensed version of the argument that he’s been making for the better part of a decade elsewhere: specifically, that the U.S. Constitution is profoundly undemocratic, undermines political equality, and is unnecessarily difficult to amend through electoral politics. It’s a brisk and – characteristically for Levinson – entertaining cri de cœur about the need for reviving the “democracy” part of “constitutional democracy.”

It’s hardly surprising that so many of the comments on the blog are negative. Constitution-worship is close to a secular religion in the U.S., where the invocation of the authority of the Framers is an inevitable feature of political discourse, from campaign rhetoric to barstool bullshitting (although I don’t mean to imply there’s necessarily a large gap between the two). It seems that one of the biggest barriers to a democratic reinvigoration of of constitutional politics, on popular constitutionalist lines, is the absence of political culture in which constitutional self-criticism is not only tolerated but encouraged. As Levinson notes at the end of his post, the framers of the Constitution were themselves harsh critics of the Articles of Confederation. The Constitution was born out of disruption, not continuity. Criticism of the Constitution’s own manifest flaws and shortcomings should be welcomed, not dismissed.

Capital Punishment and Popular Constitutionalism

I recently led classroom discussions on the Supreme Court’s death penalty rulings in Furman and Gregg. Unsurprisingly, my students weren’t impressed with Furman’s mélange of concurrences supporting (for different reasons) the per curiam holding that the capital sentencing in the case was cruel and unusual. In general, students are drawn to absolutes and decisiveness. They want exceptionless rules, unambiguous standards, and, all in all, an ordered universe of constitutional law. To their minds, Furman is a muddle, and Gregg’s clarification of its reasoning is scant improvement. Even when my students can’t agree on the morality or constitutionality of the death penalty, they want the Supreme Court to issue a decisive statement on the latter count (or perhaps both counts).

I think that my students have the bulk of academic opinion on their side – at least insofar as they don’t read these as “great cases.” If you think that the job of the Supreme Court is to serve as a “forum of principle,” you’re likely to be disenchanted by the diversity of opinions and the contradictory reasoning across the concurrences and dissents. If you think that the Court should be clear in describing to the nation what the content of constitutional law is, you’re likely to be distressed by the justices’ decision to issue a per curiam opinion unsupported by reasoning that can have robust precedential authority. If you share Justice Roberts’s purported desire for consensus on the Court, you’re likely to be dismayed by a 5-4 split and, more damningly, a serious split within the majority, between the two justices (Brennan and Marhsall) who think the death penalty is unconstitutional per se and the three who don’t (Douglas, White, and Stewart, who would write for the Court in Gregg). And if you think that the Courtis an apolitical body you might be disheartened that justices in both the majority and the minority pay a great deal of attention to (what they take to be) the state of public opinion with respect to capital punishment.

Did the Court stray its brief in its death penalty cases? Should it have refused cert? Or, as many of my students argued, should it have sought to impose a nationwide standard for capital punishment, whether thumbs up or down? I’m not so sure. I think popular constitutionalists have to consider seriously the possibility that cases like Furman and Gregg exhibit just the kind of judicial behavior they want. In both cases you see the justices struggling to reconcile the different modalities of constitutional interpretation – text, history, political development, principle – while at the same time refraining from dictating a one-size-fits-all solution for the country as a whole. The justices certainly could have done a much better job – it’s hard to see how the clarifications of Furman in Gregg really make much more sense, and there’s a tension, between Stewart’s concept of “human dignity” and his endorsement of the use of character-based factors in capital sentencing, that’s hard to resolve – but they could have done worse. I don’t see why the state should have the power to kill, and I have even less confidence in the way that power has been used in this country; but I find it hard to fault the interpretive posture of the justices in these cases. A more assertive Court might very well have required the states to have the death penalty, rather than leaving the matter up to the states themselves; and our experience with judicial supremacy in the twentieth century is that when the Court does decisively intervene in policy, the results can be very hard to change or undo.

Past and Future Popular Constitutionalism

I’ve recently started reading Stephen Engel’s American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power, an historical overview of the conflict between political actors and the Supreme Court over constitutional interpretation. As the title suggests, Engel is more concerned with political leaders acting from within and on behalf of political institutions, parties, and coalitions, and not so much with mass movements on behalf of constitutional change or maintenance (but more on that later). One the aspects of the book that I like is Engel’s portrayal of changing attitudes about the permissibility of constitutional disagreement. In the early republic, according to Engels, the predominant modality of constitutional deliberation was one of “civic republicanism,” in which politicians making constitutional claims perceived themselves to be explaining what the Constitution actually meant or required, and their opponents were, in fact, acting unconstitutionally or failing to uphold correct constitutional readings. In the aftermath of the Civil War, civic republicanism gave way to “liberal pluralism,” in which persistent disagreement over the Constitution is tolerated, and politicians may legitimately advance different constructions of constitutional meaning.

There are interesting linkages here to the historical study of popular constitutionalism. In Larry Kramer’s The People Themselves, popular constitutionalism is presented as the default mode of constitutional discourse, which was over time supplanted by judicial supremacy as the Court’s authority to interpret the Constitution through judicial review gained acceptance and support. Engel’s concept of liberal pluralism seems to map on to this later period: as constitutional disagreement becomes legitimate, attacks on the Court become less existential and more circumscribed, and politicians rarely attempt to call the Court’s institutional role or legitimacy into question. This raises a question for enthusiasts of good old-fashioned popular constitutionalism, however: is it possible, or indeed desirable, to return to the civic republican model of constitutional discourse, in which one’s rhetorical opponents are treated as enemies of the constitutional system and dangers to political order?

I would argue that a return to the rough-and-tumble constitutional politics of the early republic that Kramer esteems is unwarranted. Perhaps more to the point, however, it’s impossible: materially, ideologically, and rhetorically, a mass movement predicated on the idea that it is the guardian of the Constitution against anti-constitutional politicians or judges is not going to get off the ground in 2012 (not even the Tea Party comes close to fitting this description). Popular constitutionalism in the liberal pluralist epoch, and in contemporary politics, must necessarily consist of interactions between elites and mass publics. Constitutional construction and counter-construction will inevitably be articulated within political parties and be advanced by political leaders, and it will require engagement with existing political institutions. The popular constitutionalism of the future (if there is any) will not resemble the popular constitutionalism of the past: it will be occur within a matrix of institutions, parties, and norms that did not exist in the post-revolutionary or Jacksonian eras.

The Ninth Amendment and Popular Constitutionalism

While leading a discussion section on Griswold yesterday, I had what has now become a familiar experience: students tend to prefer, by a large margin, Justice Goldberg’s Ninth Amendment-based reasoning to Justice Douglas’s liberty reasoning, insofar as they both identify a constitutional right to privacy. Many students tend to be chary of Douglas’s “penumbras” and “emanations,” which they see as Lochnerizing – substantive due process rearing its ugly head. They see Goldberg’s reasoning as the more restrained option, in fact: they think that because he hangs his hat on the Ninth Amendment, he has a firmer textual basis for his argument than Douglas, who relies on a structural reading of the relationships between, and implications of, different rights guarantees, precedents, and principles. In my students’ eyes, Goldberg is a more principled textualist, at least in comparison with Douglas, whom they regard as ambitious, far-reaching, or activist.

Of course, virtually all other justices, before and after Griswold, have been reluctant to interpret the Ninth Amendment to mean that there are more, judicially enforceable, rights than those rights against the federal government that are enumerated in the first eight amendments. Most justices and legal commentators have construed the Ninth Amendment to mean that the Court may not strike down legislation simply because it refers to fundamental rights that are not among those enumerated in the Bill of Rights, but that it does not mean that the courts may positively identify additional unenumerated rights. From the point of view of many of my students, Ninth Amendment has been in near-desuetude for pretty much the entire length of the history of judicial review, although it has also attracted some scholarly attention as a possible, better alternative to due process as an anchor for the modern Court’s individual rights jurisprudence (see Dan Farber’s Retained by the People for a compelling, but to my mind still ultimately satisfactory, account of how the Court should rely on the Ninth Amendment to support its rights jurisprudence, rather than, say, due process).

I sometimes do get a contingent of students who support Black’s dissent in Griswold: he argues that where no rights are enumerated, the Court has no business talking about them. Black’s absolutist textualism can sometimes be appealing, no doubt. But it smacks of a certain political naïveté, in my view. Judicial review is now seen as the major – perhaps the only – engine for constitutional change, and for better or worse most political actors seem to think that the Court is the only appropriate venue for articulating (constitutional) rights claims. Perhaps, if he could have been convinced that the Court played an unavoidable role in national politics, Black would have enthusiastically endorsed extrajudicial constitutional interpretation. But perhaps not.

In any event, the Ninth Amendment poses some difficult questions for popular constitutionalists, at least insofar as they endorse extrajudicial constitutional interpretation. The Ninth Amendment has been construed both by conservative originalists like Antonin Scalia and liberal nonoriginalists like Laurence Tribe to mean only that the Court should not construe the enumeration of rights in the Bill of Rights to be exhaustive of the rights that the government must respect. The claim that it explicitly authorizes the expansion of rights claims (through judicial interpretation of the constitution) has never commanded a strong following in jurisprudence or legal scholarship. And yet (anecdata alert!) it seems to me that many, if not most, nonspecialists, when confronted with the text of the Ninth Amendment, interpret it to mean that the Court is authorized – even compelled – to identify “new” or unenumerated rights through judicial review. Judicial supremacy has become so entrenched – in our political practice and in our culture – that, to many minds (especially my students’), “of course” the Court has a responsibility to interpret the Ninth Amendment, whether the case is about gun rights or privacy or whatever. The possibility of extrajudicial interpretation – whether or not it’s grounded in putative “Ninth Amendment principles” – doesn’t occur to my students. Constitutional interpretation is something that the Supreme Court does, or so their thinking goes. The justices may balk at that notion; but one of the (rather perverse) outcomes of the political construction of judicial supremacy is the emergence of the cultural expectation that the Supreme Court can, should, and must solve all dilemmas and conundrums of elaborating the Constitution’s meaning.

Not all conceptions of popular constitutionalism hold that “the people themselves” are always or infallibly correct in interpreting their own constitution, but the intent, text, and legal history of the Ninth Amendment seem to be at odds with many popular expectations or understandings today. That fact, in and of itself, doesn’t bother me – as a popular constitutionalist I privilege contemporary interpretation and feel compelled to take it seriously, whether that leads to originalist, living constitutionalist, or anti-judicial supremacist results – but what does bother me is the idea that “we, the people” must find a textual warrant for interpretive control of our own Constitution. We don’t need the Ninth Amendment as an excuse or permission slip for asserting popular control over the processes of constitutional change; we should feel confident in so doing because it’s an exercise in democratic self-government. But it must be admitted that this is not a proposition that is self-evident to many people.

Another Lesson on the Difficulty of Reconciling Judicial Supremacy With Democracy

There’s a recent article by Slate’s Dahlia Lithwick about a ruling from the DC circuit, in which Judge Janice Rogers Brown writes a concurrence that dwells on an economic libertarian vision of economic liberty. This liberty, despite not being mentioned by name in the Constitution’s text (which conservatives usually think matters in determining whether or not something is a legitimate liberty interest), has allegedly been under constant assault by “a democratic process” that Brown considers beholden to unnamed “powerful groups.” Lithwick, echoing the concerns of Erwin Chemerinsky and others, thinks that the story here is one of norms of professionalism and propriety, but I think that’s something of a non-issue; that cat walked out of the bag a long time ago. Insofar as the Supreme Court has emerged as a consequential political institution in its own right, it is inevitable that current and aspirant justices will employ politicized rhetoric in their decisions.

What’s more interesting to me is Judge Brown’s theory of constitutionalism. She lambastes the Supreme Court for its decisions in Carolene Products and other cases on economic regulation, arguing that they abandoned the economic liberties that are often held to have been characteristic of the Lochner era. On the basis of the reasoning in her concurrence, constitutional constraints are in place in order to thwart the products of democratic institutions if they run afoul of certain principles, and it is the Supreme Court’s job to see the thwarting through. It would seem that Brown subscribes to the judicial supremacist vision of constitutionalism – according to which constitutions serve as barriers to the excesses of democratic politics – rather than the popular constitutionalist vision – according to which constitutions are tools by which democratic polities maintain control of their governmental institutions. It seems to me that popular constitutionalists are far better equipped to explain the legitimacy of the post-New Deal settlement – which features an administrative state capable of responding to and regulating the national economy in the public interest – than judicial supremacists are. It would seem that judicial supremacists must defend the Court’s post-New Deal jurisprudence largely on the basis of stare decisis and little else. (And, it must be admitted, stare decisis is apparently the only thing that would Judge Brown’s hand if she were a Supreme Court justice hearing cases involving federal economic regulations. However, if stare decisis is all that stands in the way of justices enacting their own policy preferences, wouldn’t eliminating judicial review of federal statutes be the best option? But I digress.)

If, as the thumbnail link in Slate’s sidebar suggests, Judge Brown is relying on “Tea Party ideology” to inform her judicial decision-making, then she’s serving to illustrate the point that the Tea Party’s goal of “restoring” a constitutional order that was “lost” during the New Deal is, of course, a judicial supremacist goal, and not a popular constitutionalist one. Whatever its other merits may or may not be, the Tea Party’s constitutional vision can hardly be described as democratic. And even if Judge Brown does not identify as a Tea Partier or fellow traveler, it would still be hard to characterize her constitutional philosophy as deferential to democratic institutions.

Finally, Lithwick notes that Brown is likely to be a potential Supreme Court nominee should Romney win in November, so we may well be hearing more from her in the future.

5th Circuit Judge Thinks Criticizing Judicial Supremacy Is Beyond the Pale

President Obama noted on Tuesday that, were the Court to take the “unprecedented” step of striking down the Affordable Care Act (ACA) as unconstitutional, it would be engaging in exactly the kind of “judicial activism” that conservatives have been decrying for the better part of half a century. This has prompted a flurry of pearl-clutching and overblown criticism, much of it disingenuous and strictly partisan – which is of course not news. Obama clarified that his point was that it would be unprecedented – unheard of since Wickard v. Filburn – for the Court to vitiate the modern understanding of the Commerce Clause in order to declare unconstitutional a law regulating the essentials of an industry that is essential to the American economy. If by “judicial activism” one means “thwarting the will of democratic majorities” – and this is what we’ve been told it is, by critics of the practice – then the Justices voting to overturn ACA would certainly look like activists.

What is news is that someone has reached for the ridiculous interpretation of Obama’s remarks – that is, that he somehow said that judicial review itself is illegitimate – and, furthermore, that someone is Judge Jerry Smith of the 5th Circuit, who in a separate ACA case demanded that DOJ lawyers write a report explaining Obama’s remarks, clarifying whether or not he thinks that federal courts have the power of judicial review. (In a nice touch, he specified the length and spacing of the report as well.) It’s not clear how Judge Smith thinks he has the jurisdiction to make such a demand, or why he thinks a political speech by the President is germane to his case. It will be interesting to see whether the Justice lawyers comply with this, well, unprecedented demand.

Against Political Stability

It is true that what is settled by custom, though it be not good, yet at least it is fit. And those things which have long gone together are as it were confederate within themselves: whereas new things piece not so well, but though they help by their utility, yet they trouble by their incomformity. Besides, they are like strangers, more admired and less favoured. All this were true, if time stood still, which contrariwise moveth so round that a froward retention of custom is as turbulent a thing as an innovation; and they that reverence too much old times are but a scorn to the new…

Francis Bacon “Of Innovations” (1625)

One of the core objections leveled against popular constitutionalism is that it is destabilizing. Popular control over constitutional change, on this view, would too easily allow rapid, heedless changes to constitutional law and doctrine. This is a mistaken characterization of popular constitutionalism, but more fundamentally it’s a mistaken understanding of the value of political stability.

It is a commonplace in political rhetoric to think of “stability” as something that slowly builds up over time, and that it is fragile and delicate – and therefore in need of constant care and protection. Political stability, on this reading, is like a coral reef in that it can only grow and develop slowly, but it can be damaged or destroyed overnight if it isn’t protected. This is what being “conservative” used to mean – being protective of established institutions and skeptical about radical change. Burke said this; so did G. K. Chesterton, and Michael Oakeshott, and other (sans-“neo”) conservatives. The problem is that they’re rather mistaken.

Burke argued that “[c]ustom reconciles us to all things” in art as well as political life, and is often held up as example of principled conservatism; that is, a conseratism that is an ideology – valuing establishing institutions, trusting tradition, and skeptical of radical change – rather than a tendency, a preference for the old and familiar simply for familiarity’s sake. Oakeshott is often held up as a more recent example of a skeptical conservative in the so-called “classical liberal” tradition. Both thinkers cautioned against an enthusiasm for change or sweeping reform, on the grounds that doing so could usher in unanticipated consequences and instability. They emphasized a view of the development of political institutions in which they are built slowly over time, and those bits which survive over long stretches of time should be regarded as “fit” or serving some useful purpose.

Chesterton – who is not always thought of as a political thinker – says much the same, but with rather more flair:

It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. (from The Thing: Why I Am a Catholic)

Burke, Chesterton, and Oakeshott were all subtle thinkers; they did not treat political institutions as sacred, and they recognized – sometimes implicitly, sometimes explicitly – that they would change over time. They weren’t necessarily paleo-conservatives, of the kind lampooned in Borges’ story “Averroës’s Search,” who believe that that what is old is ipso facto good and justified. (It should be noted, however, that Oakeshott, along with Friedrich von Hayek and Carl Schmitt, was part of what Perry Anderson called ”the intransigent Right;” and there are good reasons to suppose that Burke’s conservatism was less principled than might be supposed.) But they and others like them looked back in time, not forward, in order to understand how political stability and institutional continuity might be preserved. Change, especially rapid change, was suspect; reforms should be piecemeal, and enthusiasm met with skepticism. This is a mistaken notion, I think, at least with respect to constitutional development in the United States.

One of the loci classici in the study of political stability is J. H. Plumb’s The Growth of Political Stability in Early Eighteenth-Century England, 1675-1725. In the book, Plumb notes that

There is a general folk belief, derived largely from Burke and the nineteenth-century historians, that political stability is of slow, coral-like growth; the result of time, circumstances, prudence, experience, wisdom, slowly building up over the centuries. Nothing is, I think, farther from the truth…Political stability, when it comes, often happens to a society quite quickly, as suddenly as water becomes ice. (quoted in Tony Judt’s Postwar)

The periods of comparative political stability in U.S. history – such as the Era of Good Feelings, Reconstruction after the Civil War, the state-building period at the beginning of the twentieth century, the post-World War II economic boom, the Reagan era – were not the result of “slow, coral-like growth.” They were temporary respites from the churning of political contestation, often bought at a high price in institutional power, political coalitions, or even lives, and they were often charactered by superficial or perceived levels of stability that concealed deeper divisions and ongoing conflicts and disagreement. And when disagreement upsets stability, it is not the case that the resulting destabilization is sui generis. We would be mistaken to infer, for example, that no one was agitating on behalf of black civil rights before the Civil Rights Era; but national and Southern elites managed to suppress the institutional and cultural precursors to the Civil Rights Movement during the Depression, World War II, and into the Eisenhower presidency. Political stability didn’t suddenly evaporate in the South when “Bull” Connor turned firehoses and police dogs on protesters in Selma in 1963. Instead, the bargains, cultural logics, and configurations of power that had sustained white supremacy finally began to fray. And the stability that had preceded the protests was not the result of wisdom or prudence or the generally relaxed attitude commended to us by Chesterton; it was actively maintained by the Jim Crow system and through the power of political institutions dominated by whites.

A more recent formulation of Plumb’s view can be found in the works of political scientist Terry Moe, who argues against the idea that “institutions emerge as good things, and it is their goodness that ultimately explains them: they exist and take the forms they do because they make people better of. This is why people choose them and stick with them.” It’s a cousin of the “just world fallacy,” the Panglossian view that things are already the way they’re supposed to be. The folk wisdom that Plumb and Moe rightly reject – the idea that it must somehow be the case that we have the institutions that we have because they’re good – has a lot of rhetorical purchase, which is why it’s necessary to resist it when thinking about popular constitutionalism and constitutional change. The Constitution is not a delicate flower that grew and blossomed slowly over time; it began as a disruptive, destabilizing move in the national politics of the early republic, and the meaning and authority of its text and the institutions it describes have been contested ever since.

Popular Constitutionalism

The Supreme Court has made its grab for power. The question is: will we let them get away with it?

One of the core themes of my dissertation is popular control of the evolution of constitutional meaning. The Constitution’s meaning changes all the time, through developments in docrtine and constitutional law, through inter-branch conflict (Congress and the President fighting over constitutional powers and authority), and through the efforts of social movements and mass participation in politics. (For various reasons, one way that is not especially favored is through the amendment process specified in Article V). Of these three ways of affecting the meaning of the Constitution and constitutional law, the first is the kind that is going to receive most attention in courses on constitutional law, and it’s the kind that most frequently comes to mind for academic observers of U.S. politics. And not without reason – many of the most controversial and high–profile developments in national discourse about the Constitution have been spurred by Supreme Court decisions. Roe v. Wade, Casey v. Planned Parenthood; Bowers v. Hardwick, Lawrence v. Texas; Bush v. Gore; Citizens United; and so on. It’s certainly the case that the Court has been the motor driving several instances of constitutional change in the twentieth century (even if that constitutional change doesn’t always conduce to social change).

Arguably, what we have right now is a constitutional regime of what is known as “judicial supremacy,” in which the Court is held to be the highest – and most authoritative – expositor of constitutional meaning. I think that we are mistaken in paying so much attention to the Court; we ought to be paying closer attention to changes “on the ground” in our political institutions, our political practices and values, and our political culture. It is at that level that a lot of important constitutional change takes place, which is why it’s a shame that it’s so under-theorized relative to the Supreme Court. In fact I think a normative constitutional theory needs to begin at this level. I thus have at least one foot in the camp of constitutional theorists that have been called “popular constitutionalists.”

Popular constitutionalists argue that interpretive authority over constitutional meaning – the authority to say what the Constitution permits, requires, and forbids – rests fundamentally with the people, and not with courts. In the coming posts I will clarify and develop this position, but here are some useful links to what others have said about popular constitutionalism:

Larry Kramer’s The People Themselves is an excellent historically-grounded introduction to popular constitutional politics.

During the high water mark of the “Tea Party,” the New York Times ran a story about academic observers and theorists of popular constitutionalism.

Corey Brettschneider has a useful review of Kramer’s The People Themselves, as well as other important recent works of constitutional theory, available as a Scribd document.

Barry Friedman’s “Mediated Popular Constitutionalism” serves as a quick introduction to his opus, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.

You can watch a video of Jack Balkin describing various conceptions of popular constitutionalism on YouTube.

Finally, some critics of popular constitutionalism: Robert Post and Reva Siegel have a response to Kramer’s objections to judicial review that does double duty as a survey of the three big schools of theories of how we should institutionalize constitutional interpretation: popular constitutionalism, “departmentalism,” and judicial supremacy; Keith Whittington argues that judicial supremacy is actually the product of decisions and policies adopted by political institutions, rather than an assertive Court; and Larry Alexander and Lawrence Solum have a curmudgeonly response to Kramer’s book in the Harvard Law Review. Some of Kramer’s responses can be found here.