Balkinization: What Teles Can Tell Us About Constitutional Change

What Teles Can Tell Us About Constitutional Change

Because constitutional change is a focus of my research these days, I thought I might say a few words about how Steve Teles' book The Rise of the Conservative Legal Movement is important to contemporary theories of constitutional change. Teles' book discusses how competition between different ideological groups occurs outside of the electoral process: through institution building, norm development and norm proliferation. These mechanisms are quite important to understanding constitutional change, and legal change more generally.

To understand the importance of Teles’ book for constitutional theory, start with Bruce Ackerman and his well-known theory of constitutional moments. At certain points in American history, constitutional norms become markedly different from what they had been before. The watershed produced by the New Deal is one central example; the civil rights era of the 1960s and early 1970s is another. Constitutional law and the underlying assumptions of constitutional law are very different in 1940 than they were in 1920; we can tell a similar story about the differences between 1955 and 1975. Very significant changes occurred in a little more than a decade and very different assumptions became dominant. The formal presence of constitutional amendments is not necessary for these changes to occur. No amendments occurred during the struggle over the New Deal; amendments did occur during the civil rights era, but they were either irrelevant to that struggle (the 25th) or at the periphery (the 24th and the 26th).

Ackerman argues that big constitutional changes occur through a succession of different constitutional regimes begun by quasi-revolutionary periods he calls constitutional moments. Constitutional moments produce fundamental change outside the Article V amendment process; they require the mobilized support of the American people. This support is signaled, demonstrated, and confirmed through a series of defining elections. So in Ackerman’s model the New Deal transformation begins with the 1932 election and it is consolidated with the 1940 election. The civil rights revolution begins with the Supreme Court’s 1954 decision in Brown v. Board of Education, and it is ratified in the 1964 election and consolidated (in Ackerman's view, not mine!) in the 1968 election.

Contrast Ackerman's model with the model of change that Sandy Levinson and I have proposed. We argue that constitutional change occurs in small steps as well as large ones. The key issues for us are (1) who gets to staff the courts and (2) how the courts usually reflect and support the constitutional commitments of the dominant national coalition. Thus, we explain constitutional change (at least in doctrines) through partisan entrenchment in the judiciary. Constitutional change occurs because parties and affiliated social movements press to appoint jurists who have similar views to their own; when parties are able to appoint enough of these judges to be added to allies already on the bench, the judges start to change doctrine. If enough judges are added in a short period of time, what you get looks like almost revolutionary change.

Thus, for example, although the Supreme Court stops opposing Roosevelt in 1937, the big doctrinal changes begin to occur (and become more or less permanent) over the next six years, when Roosevelt gets to fill eight seats on the Supreme Court (and one seat twice). A Supreme Court filled with adherents of the New Deal is likely to have a transformative effect on doctrine, and so it did. The Civil Rights Revolution is due to (1) the cumulative effect of presidents from both parties appointing racial liberals to the courts; and (2) Felix Franfurter's retirement in 1962, and the appointment of Arthur Goldberg, which cemented a five person liberal majority just as political liberalism was ascendant in the political branches. Supported by (and supporting) a liberal President and a liberal majority in Congress, the Warren Court upheld new civil liberties laws and imposed the liberal majority's values on regional majorities, especially in the South.

Ackerman's model is interested in big changes at the level of new regimes; Levinson's and my model, by contrast, is interested in changes great and small. For Ackerman, We the People must self-consciously understand that the Constitution is being amended outside Article V and give their consent through a series of key elections. In Levinson's and my model the people don't have to have this self-conscious understanding. Elections matter, but primarily because they decide who becomes President and who holds the balance of power in the Senate, thus affecting who gets appointed to the courts. Social mobilizations matter a great deal too, but they matter especially because they change public opinion, social mores and constitutional common sense. This affects the assumptions of judges on the bench, as well as what kinds of people will get appointed to the bench later on.

How does Teles' book intervene in this debate between Ackerman’s model and Levinson’s and mine? Teles points out that partisan competition outside of the electoral process and in civil society is very important to understanding political success. This competition doesn't necessarily involve judicial appointments, although obviously civil society groups can be heavily involved in the fight over judicial appointments. But Teles points out (correctly) that there are important venues for entrenchment other than the judiciary. Entrenchment in civil society may be just as important and, in some respects, just as long lasting. Indeed, entrenchments in institutions of civil society may be altogether necessary for partisan entrenchments in the judiciary to occur and to be effective.

To put it simply, John Roberts and Sam Alito did not appear out of nowhere. They got their start in the Reagan Justice Department in the 1980s. They were also part of a larger social movement that produced a team of ideological allies who could become qualified for the federal bench and perhaps someday the Supreme Court. Teles' book shows us, if any demonstration were necessary, that it is not enough just to win elections. It is true that you must have the opportunity to appoint new judges, but you also have to have a stock of reliable people to choose from when you get that opportunity. You have to have a litigation support system to bring cases for those judges to hear. You have to have a group of think tanks and institutions that will work out ideas and figure out which cases to bring. You have to have a cadre of ideologically committed people in civil society, in think tanks, in journalism and in the media who will support you and who are in it for the long haul. It takes about twenty five years to grow a Supreme Court Justice, as the Roberts and Alito nominations showed. Long term investments in civil society are necessary to produce significant changes in constitutional doctrine.

Teles emphasizes the struggle over constitutional common sense that is played out in civil society, or what I like to call the battle over what is "off the wall" and "on the wall." Professionals-- and lawyers and judges are nothing if not professionals-- like to think of themselves as reasonable and definitely not crazy. So what is "on the wall" and what is "off the wall" matters intensely to them and their sense of professional identity. The ability to change the boundary between these categories pays extra dividends in shaping professional legal discourse and legal thought in addition to its effects in ordinary politics. When civil society organizations help shape what is "on the wall" and "off the wall” in constitutional thought, they move the ideological goal posts, so to speak, allowing certain views that once were out of the mainstream to be seen as reasonable, or within the sphere of the reasonable.

Teles points out that success in changing the law and legal culture in the late twentieth century required a shift from grass roots organizations, businesses and Republican elected officials to a "new class" of ideologically motivated actors in think tanks, in the academy, in public interest organizations, in the mass media, and above all, in foundations, who served as the major patrons for the new class. These people created a counter-establishment in law, journalism, media, and the academy that could support constitutional and legal change. Here Teles draws on Charles Epp's very important work on the legal support structure for rights revolutions. In the process, he extends Levinson's and my idea of partisan entrenchment from the judiciary and the elected branches to the institutions of civil society.

Teles' triple focus on non-electoral competition, on the neglected supply side for constitutional change, and on the importance of shaping constitutional common sense, offers a distinctive take on how constitutional regimes change over time. In many ways it is more hospitable to Levinson's and my model than Ackerman's theory of constitutional moments. Ackerman's model focuses on relatively swift changes in basic constitutional values ushered in by pivotal elections. Instead, Teles defines regimes as multiple reinforcing sources of durable political advantage, both in electoral politics, and outside it (for example, in civil society, in legal argument, in litigation, and so on.). If Teles is correct, then regime change can't happen all at once, or even within a decade, as Ackerman's theory suggests. Rather, regime chance, when it occurs, occurs gradually, and in different sectors at different times. For example liberal legalism does not emerge full blown in 1932, or even in 1940, when the New Deal transformation occurs. The establishment of Liberal legalism occurs over many years, and some features actually blossom after the 1964 election, when the liberal establishment is about to lose its hegemonic status.

I close with one last point about Teles’ relevance to contemporary constitutional theory: During the last twenty years or so there has been, primarily on the left, a focus on so-called "popular constitutionalism"-- the idea that constitutional interpretation should be taken back from the courts and returned to "The People." Liberal legal academics were partly attracted to the idea of popular constitutionalism because of the rise of conservative forms of “judicial activism," in the 1990s and 2000s-- in particular, the Rehnquist Court's increasingly robust use of judicial review to strike down liberal laws and policies in the name of conservative constitutional values.

There is enormous irony to the liberal embrace of popular constitutionalism, at least as a normative matter. One reason why the Rehnquist Court was doing what it was doing was that in some sense the people had spoken-- they had repeatedly elected conservative Republicans to office, making them the dominant party in the United States. The work of the Rehnquist court did reflect the constitutional vision of popular social movements, just not liberal social movements.

Teles' book suggests another reason why the liberal embrace of popular constitutionalism on the left is mostly a romantic vision. The "new class" that does much of the work of promoting constitutional and legal change cannot be equated with the unwashed masses, grass roots organizations or the "average American." Rather, the "new class" consists in a series of ideologically committed intellectuals, members of the media, academics, public interest lawyers, bureaucrats, judges, and members of the organized bar. What Teles offers us is not a battle of the grass roots versus the establishment, or of We the People versus an imperial judiciary, but a struggle between an existing liberal elite legal establishment (and its resources) and a rising counter-establishment with its own elites (and its own resources). That is to say, Teles argues that what liberal scholars have tended to label "popular" constitutionalism is actually a struggle between different sets of elites.

[Cross-posted as part of a symposium at Crooked Timber]

Posted 10:50 AM by JB [link]