E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The re-emergence of an important political convention and why it matters
Guest Blogger
Miguel Schor
Our written
Constitution can make it difficult for Americans to understand how Washington
operates. We think that we live in a dichotomous world where rules structure
constitutional disputes but not political competition. The reality is very
different. No bright line separates constitutional law from politics, rules
structure constitutional arguments but seldom settle disagreements, and
democratic politics becomes an impossible game without the existence of tacit
understandings between political elites who may agree on little else.
The British
call these understandings political conventions. These are rules of political
morality that structure politics. They consider such rules to be an important part
of the study of constitutional law. The late political scientist Robert Dahl
wrote about the importance of informal, quasi-constitutional mutual guarantees
between political elites. These informal guarantees matter since they inform
elites that neither side will act in a way that turns politics into a destructive
rule free zone. The point is that unwritten conventions provide the necessary
putty for the text of the Constitution to do any real work.
The story
of the debt ceiling illustrates the importanceof political conventions. The debt ceiling was established in 1917 and
did little real work—except for a Newt Gingrich inspired hiccup in the
1990s—until 2011 when Tea Party Republicans decided that the debt ceiling was a
fabulous tool by which a party in control of one branch of government could
dictate terms to the other two branches controlled by Democrats. The popularity
of Republicans in Congress tanked when they threatened to use the debt ceiling
as a means of implementing their preferred policies. The recent capitulation by
Republicans on the debt ceiling illustrates that the status quo ante has been
restored. Both parties understand that the debt ceiling may be not be used as a
means to obtain major concessions from the other party. This convention
re-emerged because it serves the self-interest of both parties.
The
re-emergence of the debt ceiling convention matters, though, in a non-obvious
way. The supposed wall between the Constitution and politics means that the
Supreme Court lacks the intellectual tools to play a constructive role in
buttressing the political conventions necessary for democratic politics to
flourish. Let me provide an example. Justice Kennedy in Vieth v. Jubelirer wrote that although state legislatures had lost
all sense of “decorum and restraint” in gerrymandering districts, it was not
the Court’s job to prevent political factions from entrenching themselves in
power. He is mistaken. The Court should seek to nurture the emergence of
conventions that facilitate political competition. To that end, we, as scholars
and teachers of constitutional law, need to find a way to educate law students
about the importance of political conventions.
Miguel Schor is Professor of Law at Drake Law School. You can reach him by e-mail at miguel.schor@drake.edu