Balkinization  

Monday, March 10, 2008

A Belated Note on "Popular Constitutionalism"

Stephen Griffin

This is a note on Larry Kramer's "popular constitutionalism" thesis that I posted today on the H-Law listserv. It's belated because I was first thinking of making it about...well, two years ago! Better late than never. For me, the debate over Kramer's book was frustrating because I thought everyone was missing at least one of his main points. To exaggerate a bit, everyone was so interested in his argument about contemporary judicial review that they missed the wonderful original research about the intellectual origins of constitutionalism in the eighteenth century. Also, the critiques of his book had too much of a "flavor of the month" dismissiveness about them.

I know from personal experience how difficult it can be to find early evidence of American thinking on constitutionalism and judicial review. Quick -- what's the best intellectual (as opposed to doctrinal) history of the origins of judicial review? (I mean prior to the 1770s when all the fun begins) In my experience at least, the biblio is a little thin, something Gordon Wood noticed in the 1980s. That's what makes Kramer's book so valuable in my view. It is one of the few intellectual histories available. But to understand Kramer's argument, you have to grasp his main point.

Many of the discussions of Kramer's book have been frustrating in that
they have not grasped that point. The point cannot be that there is a relationship between public opinion and constitutional meaning or that there is an inescapable "political" element in any republican or democratic constitution. These points are too familiar to require a new extended treatment that involves (among other things) a careful review of eighteenth-century evidence.

Kramer's most important point can be understood on two levels: conceptual and historical. The conceptual point is that republican or democratic constitutions must be self-enforcing. This has further implications. We may try to treat the constitution as ordinary law, but this project cannot be carried out (at least not fully) because the reality of self-enforcement guarantees that constitutions will not behave as ordinary laws do. The historical point, shown by Kramer's evidence, is that Americans had to struggle and come to grips with the reality of self-enforcement as they tried to determine exactly how the constitution could be regarded as supreme law. The more familiar idea of popular enforcement as an ultimate backstop or guarantor of the Constitution's status as ultimate law is what they came up with. This idea then gets diffracted by events, especially as the Constitution becomes institutionalized in the early decades of the new republic. Kramer's early history also allows us to see subsequent figures, such as Andrew Jackson and Abraham Lincoln, trying to keep faith with the original eighteenth-century idea of a constitution as a fundamental law.


If someone can point me to a discussion of Kramer's book in which these ideas are presented, I would be grateful. I develop the conceptual point in a paper available on SSRN.


Comments:

I frankly don't see how a constitution, or any other body of law, being just text, could possibly be "self" enforcing. If those charged with following a constitution decide en mass to do something else instead, what's the constitution going to do, give them a paper cut?

Is this just some funky way of saying that constitutions are dependent on external norms that they are to be followed, while ordinary statutes have police hired by the government that enacted them to do the enforcing?

Perhaps when the Constitution finishes it's current decline into irrelevance, we can put some work into finding a way to provide a constitution with an actual enforcement mechanism which isn't run by the very people who suffer under the temptation to violate it. The last century's history certainly suggests some such mechanism is needed.
 

SHAG FROM BROOKLINE SAYS:

Article III is quite short. Judicial review as we know it today is not explicitly, or even implicitly, referenced. There is much ambiguity or vagueness about Article III in the sense of originalism, whether intent, meaning, understanding, or whatever. Does the oath for the Executive and Legislative branches require obedience to the Constitution as construed only by SCOTUS even on a 5-4 basis? Perhaps the Constitution cannot survive (or dare I say "live") without judicial review as we know it today. (The late Thomas Reed Powell described judicial review as follows: "Like Topsy, it just 'growed.'")
 

To Brett (two comments up)--the self-enforcement mechanism to which you refer is not all that strange. In a republic, it is the people that must hold up and defend the Constitution against governors who violate it. This is, I believe, the point. Madison's continual reference to "the people themselves" calling their governors to account is part of that self-enforcement.

I'm also a little confused by what you might consider an independent enforcement mechanism. Would that be a council of unelected "constitutional guardians" that had plenary police power to enforce the Constitution? And who would tell them what the Constitution meant when its meaning was in dispute? This sounds dangerously like a Praetorian Guard.

Not that I mean to be facetious. I just haven't solved the puzzle of an enforcement mechanism that works outside the system and yet can still be responsible to the system.
 

"I'm also a little confused by what you might consider an independent enforcement mechanism."

Prior to the 17th amendment, the federal judiciary functioned tolerably well as an 'independent' enforcement mechanism. Independent in the sense that it was enforcing a federal constitution, but you couldn't get into the judiciary without confirmation by Senators, who were agents of state governments.

With the 17th amendment, of course, the Senate's function of representing state government in the federal government was abolished, and members of the judiciary owed their positions entirely to the level of government the constitutionality of whose actions they ruled upon. Nominating and confirming the judge in your own case has proven to not be much of a step above being the judge in your own case.

I don't see much prospect of reversing that fatal mistake by repeal of the 17th amendment. But when we create a new constitution, (The present one, I'm guessing, doesn't have more than a decade or two left to it, it's honored mostly in the breach now.) we might keep this mechanism in mind: The judges who decide upon the legitimacy of one level of government should be chosen by a different level of government, if federalism is to survive the ambitions of the federal government.
 

"Prior to the 17th amendment, the federal judiciary functioned tolerably well as an 'independent' enforcement mechanism"

I can't accept this as historically true. The federal judiciary did little in the way of constitutional enforcement before the Civil War. Nor did the Court have a venerable record in enforcing Reconstruction and protecting the rights of freedmen. The signal "constitutional enforcement" of this period, it would appear, was protection of the "liberty to contract," epitomized in the now-discredited Lochner era.

Nor do I see how the popular election of Senators made the judiciary any more dependent on the federal government than they were before. The Seventeenth Amendment did not change the conditions upon which judges serve. (And, lest we forget, the President does the nominating in any case.)

The real point is that the federal judiciary has only relatively recently assumed the role of absolute constitutional expositor and therefore guardian. Certainly in the antebellum era (before the Civil War Amendments), different enforcement mechanisms were imagined, effected, and argued over. Popular constitutionalism offers something of an explanation as to how the Constitution can still be maintained and enforced outside (as well as inside) the judiciary. Perhaps there is hope for the Constitution yet...
 

SHAG FROM BROOKLINE SAYS:

A follow up on Baker's point is well illustrated by Gautham Rao's recent article titled "The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America" in the Law and History Review Vol. 26, Issue 1, available at:

http://historycooperative.org/cgi-bin/printpage.cgi

And didn't Jefferson and Jackson have something to say about the enforcement of federal court decisions? Quite a few changes took place to permit Ike to take the Little Rock action to enforce a federal court order. It required a lot of funding to provide the federal government with enforcement capabilities. I hope no one is suggesting that we go back to the good old days.
 

Larry Solum’s “Legal Theory Lexicon: Originalism” posted at his Blog this past weekend ties into Stephen Griffin’s post here and his earlier post on Originalism. Solum provides a brief but informative history of Originalism since Paul Brest’s 1980 article “The Misconceived Quest for the Original Understanding” demolishing Originalism 101 (“original intent”) following which the New Originalism emerged with versions that continue with variations on the theme to date, with perhaps more to come. It would seem worthwhile preparing an Originalism Guide listing the various versions as they have developed, identifying their proponents among ConLaw scholars and the founders/ratifiers they rely upon. (Some commenters on this Blog continue to assert Orginalism 101 (“original intent”) despite Brest’s persuasive article.) Such a Guide might serve as a handy reference for further discussions on Originalism at this Blog and elsewhere. We may all (most of us?) be Originalists now but not of the same version.

Solum does recognize recent challenges to Originalism, including by Stephen Griffin who as noted had earlier posted here on the subject.

Solum provides an extensive Bibliography and Papers Online (including several by contributors to this Blog) for his Lexicon revised as of Mar. 15, 2008.
 

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