Balkinization  

Friday, February 14, 2014

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 importance  of 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

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