Balkinization: The Shrinking Constitution of Settlement

The Shrinking Constitution of Settlement

David Pozen

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

In the afterword to the 2011 edition of Constitutional Faith and in his 2012 book Framed: America’s Fifty-One Constitutions and the Crisis of Governance, Sanford Levinson introduced a distinction between the “Constitution of Settlement” and the “Constitution of Conversation.” The Constitution of Settlement comprises those aspects of the Constitution that are clear, well established, and resistant to creative interpretation: for example, the two-senators-per-state rule. Precisely because they are seen as straightforward, these provisions tend to be taken for granted. The Constitution of Conversation, in contrast, comprises those aspects of the Constitution that are sufficiently open-textured as to invite ongoing debate and litigation: for example, the Equal Protection Clause. The distinction between the Constitution of Settlement and the Constitution of Conversation has been embraced by scholars from diverse disciplines and now features prominently in the celebrated constitutional law casebook that Levinson coauthors.

From the moment he put forward this “famous[]” distinction, Levinson has been an indefatigable critic of the Constitution of Settlement. In scores of articles, blog posts, and books, he has argued that its structural pillars—from the Electoral College to congressional bicameralism to the apportionment of senators to the presidential veto to the Senate filibuster to the requirement that the president be a “natural born citizen”—violate basic principles of democracy and breed political dysfunction. Lawyers like to obsess over relatively indeterminate phrases such as “cruel and unusual” or “due process.” But it is the more prosaic terms of the Constitution of Settlement that demand our attention, in Levinson’s telling, as these “static, decidedly nonadaptive aspects” of the constitutional order are destroying any hope of realizing “the magnificent vision” that the framers set forth in the Preamble. To vindicate the Preamble’s promise today, Levinson asserts that nothing less than a second constitutional convention is needed so that Americans can rewrite the canonical document and resolve its foundational flaws.

Levinson’s letters in Democracy and Dysfunction repeatedly return to this theme, with a Trumpian twist. The parts of the Constitution of Settlement that make lawmaking so difficult, Levinson suggests, have created a perpetual “crisis of governance,” which in turn creates a hospitable political environment for a populist demagogue like Donald Trump. And as we all know, the Electoral College allowed Trump to ascend to the White House even though Hillary Clinton received millions more votes.

Responding to Levinson, Jack Balkin contends that certain features of the Constitution of Settlement limit President Trump’s ability to do lasting damage to the republic, for which we should be grateful. Balkin further contends that the most serious defects in our constitutional system can be remedied through subconstitutional measures, such as a new federal statute allowing multimember districts for the House of Representatives or a new interstate compact guaranteeing the presidency to the candidate who receives the most votes nationwide. Holding a constitutional convention, accordingly, would be unnecessary and unwise.

Balkin’s arguments about the possibilities for constitutional reform under conditions of formal unamendability gesture toward, and seek to advance, a phenomenon that I wish to highlight: The Constitution of Settlement is becoming unsettled. Not in the books, but in action. That is to say, many different features of Levinson’s Constitution of Settlement no longer look as “static” as they used to, as growing levels of political frustration and polarization have roused a growing number of actors to seek to challenge or circumvent them without necessarily pursuing a constitutional amendment. (The so-called New Deal Settlement regarding the scope and distribution of federal government power is also becoming unsettled, at least around the edges, but that is another story.) An appreciation of this phenomenon can help us to assess both Levinson’s thesis and the state of contemporary constitutional politics.

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Some of the ways in which the Constitution of Settlement is becoming unsettled are indirect. In these areas, politicians, activists, and academics have not for the most part contested the traditional understanding of the relevant constitutional limits; April Fools’ jokes aside, they have not, say, advanced an alternative interpretation of Article I, Section 3’s directive that the Senate “shall be composed of two Senators from each State.” Rather, they have engaged in behaviors that have the purpose or effect of changing the practical implications of those limits. For example:

As of this writing, fifteen jurisdictions have signed on to the National Popular Vote compact, which would effectively neuter the Electoral College and nationalize presidential elections if states controlling a majority of electors were to join it. Other ideas for state-level Electoral College reform seem to be gaining traction as well.

Proposals to grant statehood to the District of Columbia and Puerto Rico through federal legislation have moved from the margins to the mainstream of the Democratic Party. Meanwhile, a proposal to break up California into three states nearly made it onto the ballot last November. Such reforms would bring the Senate closer (albeit only modestly) to the one-person-one-vote norm without disturbing the two-senators-per-state rule.

For a variety of reasons, recent presidents have wielded the veto—a tool Levinson describes as “very anti-democratic”—significantly less often than their twentieth-century predecessors: fewer than two times per year since the turn of the millennium. (Perhaps unhappily from Levinson’s perspective, recent presidents have also been relying less on their Article II power “to make Treaties,” subject to two-thirds Senate approval, and relying more on congressional-executive agreements, sole executive agreements, and legally nonbinding political agreements.)

Since the 1970s, congressional leaders have increasingly resorted to “unorthodox lawmaking,” bypassing committees and conferences and making greater use of omnibus vehicles and informal bargaining practices. These deviations from the “textbook” legislative process have allowed Congress to remain reasonably productive in the face of rising partisan rancor, mitigating the efficiency costs of Article I, Section 7’s bicameralism and presentment requirements.

While the Supreme Court still refuses to declare partisan gerrymandering unconstitutional and the Elections Clause still gives “the Legislature” of “each State” primary responsibility for congressional districting, the Court ruled in 2015 that voters may, by ballot initiative, force their state to adopt an independent commission for the drawing of all districts. Assisted by this ruling, grassroots activists have made significant strides since 2015 in promoting anti-gerrymandering redistricting commission initiatives.

Other ways in which the Constitution of Settlement is becoming unsettled are somewhat more direct. In these areas, politicians, activists, and academics have not tried to find clever workarounds for disputed constitutional arrangements, so much as to alter the arrangements themselves through legal (re)interpretation or political action. For example:

The Senate filibuster rules had seemed so entrenched for so long that Balkin characterized them in prior writing as part of the (unwritten) Constitution of Settlement. No more. Senate majorities eliminated the filibuster for all non-Supreme Court nominations in 2013 and for Supreme Court nominations in 2017. The legislative filibuster may meet the same fate shortly.

“Suddenly,” Stephen Carter remarked this past fall, “everybody wants to explore term limits for Supreme Court justices.” Carter may have put the point hyperbolically, but prominent commentators and advocacy groups on the left and the right now tout an idea that used to be considered an academic pipe dream, as do ordinary Americans in surveys. Supporters of this idea, moreover, are coming to insist that it could be implemented through ordinary legislation, on the view that Article III’s Good Behavior Clause should not be read to require life tenure as an active-duty justice.

Although still a fringe position, constitutional scholars have begun to suggest that the Natural Born Citizen Clause may have been implicitly “repealed” by the Fourteenth Amendment (which, as construed by the Supreme Court, places sharp limits on national origin discrimination). More saliently, controversies over John McCain’s and Ted Cruz’s presidential eligibility ended up solidifying support for the position that children of U.S. citizens born abroad are “natural born citizens” within the meaning of the clause.

Last fall, President Trump announced he was preparing an executive order that would deny birthright citizenship to children born in the United States to parents unlawfully in the country, notwithstanding the Justice Department’s consistent stance that such a move would violate the Fourteenth Amendment’s Citizenship Clause. Trump appears to have abandoned this plan, at least for the time being, but his revisionist understanding of the Citizenship Clause may soon become Republican Party orthodoxy.

Many of above-listed developments have the potential to make our constitutional system fairer and more rational by Levinson’s lights. Yet as this last example reflects, efforts to reshape the patterns and principles of governance can cut in the opposite direction as well. The fact of constitutional norm change, in itself, is normatively ambiguous.

Whether for good or for ill, all of this constitutional “unsettling” has been occurring outside the confines of Article V. Balkin is right that “the Constitution of Settlement can be changed . . . without a constitutional amendment, much less a new constitutional convention.” To varying degrees across different domains, such change is always already underway.

Furthermore, at the same time that the Constitution of Settlement has been becoming less settled, the Constitution of Conversation has been becoming less, well, conversational. Julian Nyarko, Eric Talley, and I recently enlisted computational methods to study the evolution of constitutional debate on the floor of Congress. On a variety of metrics, we found that Democratic/liberal and Republican/conservative members are now talking past each other in their constitutional rhetoric to a greater degree than ever before—a state of affairs more Schmittian than Habermasian. If Levinson arguably paints too grim a picture of the Constitution of Settlement, he may paint too rosy a picture of the Constitution of Conversation. His metaphors seem increasingly inapt.

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Constitutional movements and zeitgeists are hard to pin down. The list of “unsettling” developments that I’ve sketched might be challenged, caveated, or augmented in any number of respects; I hope others will refine and revise it. But if the overarching claim about the intensifying pressures being placed on the Constitution of Settlement is sound, it would seem to have significant implications for Levinson’s thesis and for the country. Let me close by suggesting a few.

First, the distinction between the Constitution of Settlement and the Constitution of Conversation is more complicated—and more fluid—than Levinson suggests. On multiple occasions, Levinson has described himself as differentiating “sharply” between the two. The norm-bending behaviors catalogued above suffice to show that the current constitutional landscape is quite a bit fuzzier.

Nor was there ever any sharp boundary here. As Curtis Bradley and Neil Siegel have documented in detail, the perceived clarity of any given piece of constitutional text, and therefore the degree to which the text is seen as constraining political actors, is “constructed” to a significant degree by constitutional argumentation and other social practices. Those same practices can destabilize preexisting perceptions of clarity and constraint just as they can stabilize such perceptions. Even if the words of a constitution never change, the mix of elements that are thought to be settled versus unsettled may vary over time.

Second, Levinson needs a theory of democracy to ground his critique of the Constitution of Settlement. He maintains that institutions such as the Senate and the Electoral College are fundamentally undemocratic and must be reformed for that reason. President Trump and his supporters, however, are apt to extol the “genius” of these institutions, not to mention of Trump himself, and to assail birthright citizenship as an “undemocratic” “scam.” I agree with Levinson on these matters and disagree with Trump. But appeals to “democracy,” or to subsidiary principles like majority rule or one-person-one-vote, will not tell us which parts of our constitutional order deserve to be celebrated and which deserve to be overhauled without an account of democracy’s purposes, preconditions, and normative priority.

Third, Levinson needs a theory of constituent power or collective will-formation to ground his call for a new constitutional convention. Even if Levinson is correct that the Constitution of Settlement is undemocratic, it does not necessarily follow that an Article V convention (or any other sort of convention) is the best method for remedying its defects. In practice, a convention might lead to an even worse Constitution; as David Super has emphasized, much depends on how a convention is organized and run, matters to which progressives have thus far devoted little attention. In principle, it is not entirely clear why a convention should enjoy greater popular or moral legitimacy than the more diffuse and informal processes of constitutional reform that are happening all around us.

What’s so special, in short, about a convention? Unless Levinson can offer a good nonconsequentialist answer, why shouldn’t those who are troubled by the constitutional status quo simply make a practical political judgment about where their reform efforts are likely to have greatest impact? That calculus, presumably, will often point them away from Article V.

Finally, the unsettling of the Constitution of Settlement raises the stakes of electoral politics. Those stakes are high, of course, even in periods of relative constitutional quiescence. In a period when previously taken-for-granted constitutional institutions and distributions are increasingly subject to revision through subconstitutional means, they are higher still. More first principles of governance are up for grabs.

This observation is alarming but also invigorating. Counterpoised against Trump’s own reactionary “democratic” reform agenda, the rapid mainstreaming of proposals to end partisan gerrymandering, to nationalize the presidential vote, to rein in the Supreme Court, and to grant statehood to the District of Columbia and Puerto Rico strike me as especially hopeful developments. Levinson’s conceit of a Constitution of Settlement underscores just how transformative—how reconstitutive of our democracy—these sorts of structural changes could be. His contempt for that Constitution underscores just how overdue they are.

Posted 9:30 AM by David Pozen [link]