Balkinization  

Wednesday, August 18, 2004

Do the Democrats Have a Constitutional Vision?

Mark Tushnet

David Strauss has an interesting article in the current issue of Legal Affairs, arguing that the Republicans have an agenda for constitutional law while the Democrats do not. ("Not that there's anything wrong with that.") He's right in one sense, but wrong in another, I think.

Strauss ends his article by discussing the Court's recent "federalism" decisions, calling that part of the Republican agenda the "sleeper" issue. For Strauss, those decisions threaten to "eviscerate Congress's power over important areas of national life." The interesting question, I think, is why Democrats should -- because of their constitutional commitments -- care about ensuring that Congress have ample power. That is, it's hardly attractive to favor national power just for the heck of it.

And Democrats don't. They care about national power because of how that power has been exercised. Democrats take pride in having created the Social Security system and Medicare. Add to those the range of national antidiscrimination laws -- including most recently the Americans With Disabilities Act, the potentiality of which the conservative Court (joined fairly often by some of the Court's "liberals") has substantially scaled back -- and you can indeed get a sense of the Democrats' constitutional vision.

No one has really given that vision a good label, but something like "equal dignity and respect" will do provisionally. The statutes that are at the heart of the Democratic constitutional vision are all designed to promote the equal dignity of and respect given all Americans (a class that, at least for some purposes, probably includes some permanent resident aliens). Note that I've been speaking of statutes that embody the Democrats' constitutional vision. My idea here is related to, but somewhat different from, Bruce Ackerman's thought that sometimes political developments really amend the Constitution even though the text remains unchanged, and Cass Sunstein's description of constitutive commitments, relatively stable normative commitments -- embodied in statutes or executive policies -- that come to be understood by Americans as capturing fundamental aspects of national identity. Ackerman and Sunstein are concerned more than I am, I think, about how courts deal with non-textual amendments or constitutive commitments (although I wouldn't want to place too much weight on that assertion).

The difference between my approach and Ackerman's and Sunstein's indicates one problem with the Democrats' constitutional vision, which also emerges in Strauss's article. Strauss acknowledges that Democrats do have an agenda, the preservation of choice with respect to abortion. Plainly that commitment is consistent with one understanding of "equal dignity and respect" (although not with every such understanding). So too the likelihood, which Strauss also acknowledges, that Democratic appointees to the courts will be somewhat more receptive to claims by gays and lesbians than has been the case in the past. As Strauss puts it, Democratic judges would probably "slightly accelerate the trend" visible in Romer v. Evans and Lawrence v. Texas. So -- not that it should come as a surprise -- courts as well as legislatures can promote equal dignity and respect.

And here's where the problem arises for the Democrats' constitutional vision. As I have described it, that vision has no significant institutional component. By "institutional component," I mean some aspect of the constitutional vision that says, "These aspects of the promotion of equal dignity and respect are best done by the legislature, while these other aspects are best -- or at least appropriately -- done by the courts." For Democrats, I believe, statutes can promote equal dignity and respect. So can court decisions.

The absence of an institutional component leaves Democrats committed this vision open to the charge of opportunism: They will take "equal dignity and respect" wherever they can get it. If Congress provides a favorable venue, fine; if not, try the courts; if the courts are unfavorable too, defend the prerogatives of state legislatures and city councils to act as laboratories of experimentation (as has happened with domestic partnership legislation, for example, or "living wage" ordinances). (David Barron's aticles on local government bring this out quite dramatically.) Strauss writes, "the issues that the Democratic Party most cares about these days?jobs, health care, helping the middle and working classes overcome economic dislocations, protecting Social Security and Medicare?are not ones about which the courts can do very much." But, guided by a commitment to equal dignity and respect, courts could actually do something about those matters. (Sunstein argues that doing so was on the agenda of the Warren Court when it ended with Richard Nixon's appointments to the Supreme Court.)

Now, from a couple of points of view, there's nothing discreditable about opportunism. Political activists take their victories however they can get them, as is clear from even a brief conversation with activists who work on issues associated with equal dignity and respect. And, of course, no political scientist would be surprised to discover that a political party was opportunistic with respect to getting its principles embodied in public policy.

So, the question I have about the Democrats' constitutional vision is this (or, are these): Is there already some institutional component to that vision, one that I haven't been able to discern? If not, what might the institutional component be? Or, is there anything wrong with a constitutional vision that lacks an institutional component (and is thereby left open to the charge of opportunism)?

(I ask the question in this final form to raise the possibility -- which I believe to be true -- that Republicans don't even have a constitutional vision, but are (merely) opportunistic. What Republicans have done, though, is capture the rhetorical high ground by asserting that opportunism is bad and that they are principled while Democrats are opportunistic.)

Comments:

> '...Democrats do have an agenda, the preservation of choice with respect to abortion. Plainly that commitment is consistent with one understanding of "equal dignity and respect" (although not with every such understanding).'

I want to appreciate Professor Tushnet's courtesy here in at least acknowledging the bona fides of at least some opponents of abortion in this way (as he's consistently done in his other academic work). He frames the issue in careful terms here, and the civility of his language is welcome. It is a refreshing change from the usual shrill rhetoric of many prominent supporters of legalised abortion ("anti-choicers hate women and want to chain them to the kitchen..." [etc]) which, apart from being inaccurate and offensive, is simply ineffective as a device of persuasion. Nobody hears their position described in such a way, with malicious motives imputed, and responds, "Hmmm, yep, that's me".

Professor Balkin, too, deserves credit for his high standards of civility on topics such as these. I disagree with many of his conclusions, but I do not feel as if he is an adversary in some to-the-death cultural war when he presents his views and the reasons for them.
 

"By "institutional component," I mean some aspect of the constitutional vision that says, "These aspects of the promotion of equal dignity and respect are best done by the legislature, while these other aspects are best -- or at least appropriately -- done by the courts."The definition of the aspects of different institutional components is normative; one man's judicial review is another's judicial law-making. One man's lawmaking is another's judicial review. (e.g., the Florida legislature in the euthanasia case). So if you phrase the question this way, you're bound to end up with ideological opponents accusing each other of opportunism and lack of principles.
 

I don't know, I paid pretty close attention to the Schiavo case in Florida, I live down here. And I have to tell you, if there's one man who can see a law that expires in 15 days and can only possibly apply to one person, designed specifically to overrule a Court's Order as to that person's care, and implemented improperly as lawmaking and not adjudication, I'm not sure I want to meet him.

And its an excellent example, too. House Speaker Johnnie Byrd and Governor Bush intended, clearly, to overrule that Court. Speaker Byrd has repeatedly referred to our Fla. court system as "activist," and espoused legislation for the sole purpose, imho, of expanding the power of the other two branches of our state's government in relation to the judiciary.

And in the Schiavo case, instead of seeing to it that a law they felt was improper was changed, or the choice at least put to the voters, they stepped into the interpretation of the law and usurped the Court's determination of what components of dignity and respect were theirs to judge. This, to me, is no less dangerous than a Court rewriting a law it feels clashes with the needs of the people on that sole political ground.
 

Perhaps I was not precise enough. My point is that the question of the role that institutions play in the respective Republican or Democratic constitutional ideologies implicitly, and mistakenly, accepts the terms that the Republicans have established. Both political parties are motivated by politics and will conform their institutional values to their political goals and ideologies (as evidenced by Schiavo, but also by the Mass. Supreme Court in the gay marriage debate, although I think the latter is probably more defensible on its own terms, but that's my bias.).

If we're talking politics, I think one of the things Republicans have been more successful at is the marketing their rhetoric of respect for institutions and based on sound and settled ideas; hence the question at the center of this post implicitly accepts their critique of a Democratic or liberal interpretation of the Constitution. That's a deficiency the Democrats must overcome, and a difficult, one at that, because it's hard to counter the argument for "traditionalist" institutional purity with an argument that evolution and intuition actually constitutes institutional purity.

Arguably, the Democrats have a greater respect for the integrity institutions; of course, the Democratic vision of institutions is more pluralistic, so it's easier to at least maintain consistency with one's own rhetoric.
 



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