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Balkinization Symposiums: A Continuing List                                                                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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Constitutional Revolutions and the Judicial Role Therein
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Sunday, January 17, 2021
Constitutional Revolutions and the Judicial Role Therein
Guest Blogger
For the symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020). Leslie F. Goldstein The book Constitutional Revolution presents itself as a conceptual analysis.
It sets forth a variety of other scholars’ analyses of constitutional
revolutions, even of revolutions simply, and explains a variety of grounds on
which versions of the concept in the work of others are lacking. After some
initial critiques of the definitions by others, they settle on a definition of
constitutional revolution that is truly a mouthful, and an unwieldy one at
that: “a paradigmatic displacement …in the conceptual prism through which
constitutionalism is experienced in a given polity” (p.19). I much prefer the more succinct version that
they offer up in Chapter 3 (p.61): “a constitutional revolution….is a change
that amounts to a paradigm shift in the basic principles or features of the
constitutional order.” So, for instance, the amendment that restricted a U.S.
President to two terms in office did not amount to a revolutionary change; only
one of all the presidents had ever served more than two terms; the amendment
simply entrenched typical practice. By contrast, the 13th, 14th,
and 15th Amendments to the U.S. Constitution, even if one were to
concede that their mode of adoption and ratification satisfied legal forms
(which I do not), decidedly amounted to a revolutionary transformation. The 13th
(December 1865) deprived the South of its most important source of wealth and
primary means of production—slave labor. The 14th (1868) announced
that the one third of the Southern population theretofore treated as chattel
property were now to be citizens, equal under the law to all other citizens.
The 15th (1870) gave the vote to these former chattel, who in a few
of the states even amounted to a majority of the population.[1] The transformation was so radical that the
South waged a century of guerrilla warfare against it. Much of the warfare took
the form of vigilante violence, and by 1900 the South was cloaking its
anticonstitutional behavior in the form of laws neutral on their face but
applied with bloodthirsty vengeance to keep Southern blacks thoroughly
subjugated (e.g., by uniformly rejecting black applicants to vote using a
variety of discriminatory subterfuges, and even by murdering blacks who
attempted to register to vote and refraining from punishing the perpetrators).
The revolution of the 13th, 14th, and 15th
Amendments was not completed until The Civil Rights Acts of 1964 and 1965 assured
black Americans of equal treatment in the public sphere, and sent federal
enforcers to the South to guard black Americans from being deprived of their
right to vote. Jacobsohn and Roznai take pains to clarify
that a revolution can proceed by way of lawful amendments, not only by violent
ruptures, and that revolution more typically than not is an extended process,
not a single moment. For instance, they see the series that began with the
Declaration of Independence of 1776, and included the Articles of
Confederation, and culminated with the document of 1787, as all one extended
constitutional revolution. I prefer to
see each of these three as a different constitutional revolution, albeit within
a single constitutional era. Until I read and thought about this book, I had
not considered the Declaration itself a constitutional revolution, in effect
THE constitution of the 13 original former colonies. Indeed, it was their only confederation-wide
Constitution until the Articles of Confederation were ratified in 1781.
Irrespective of my specific view of these three constitutional formations, the
authors stress the point that constitutional revolutions are evolutionary
processes, often stretching over decades, and that every constitution always
evolves. Certainly, I would grant them that the Civil War constitutional
amendments did revolutionize the USA, even though they did take a hundred and
one years to do so. Perhaps, I should say, a hundred and three years, because
the fruits of the 1965 Voting Rights Act did not mature until the 1968 national
election, where one could observe that the number of African American voters in
the South had more than doubled since 1964. Unmentioned by Jacobsohn and Roznai
was the additional revolution in women’s rights wrought by the U.S. Supreme
Court in the decade of the 1970s. While the Court’s double innovation of that
decade, first, establishing that laws discriminating on the basis of gender
would be quasi-suspect under the Constitution, and, secondly, establishing that
women and their medical practitioners could no longer be criminally punished
for abortions is not widely viewed as having produced a “paradigm shift” in the
way Americans experienced their Constitution, it probably should be. Court
decisions of the 1970s did dramatically shift the kinds of things laws could do
to women as a group, or to men as a
group, from then on, in effect dramatically transforming the legal rights of
the entire population. In terms of the long range prism that
the book encourages for viewing constitutional revolutions, one should perhaps
acknowledge that the women’s rights revolution began in the late 19th
century when reforms of married women’s rights to property swept across the
states, and when states one by one, gradually began to grant suffrage to women.
This first wave of women’s rights culminated in the Nineteenth Amendment to the
U.S. Constitution in 1920, making suffrage rights national. One might
acknowledge that there was a long two-phase revolution in women’s right, the
first in 1850-1920, and the second in the 1970s. This seems to be the book’s perspective, but
my guess is that in terms of citizens’ perceptions, these felt like, and were,
two separate revolutions. This book references dozens of countries’ constitutional
changes and I found those discussions by far the most interesting aspects of
the book. They reveal an impressive array of variation in constitutional
arrangement around the world. They also offer up the sobering realization that
a constitutional revolution is not always a set of measures to guard against
governmental abuse of power; it can also put in place a set of measures to
strengthen authoritarian domination of the population, as has happened already
in Hungary and seems be happening today in India. These two cases plus the case of Israel, to
my mind, presented the most interesting lessons in the book. A number of other scholars (Alexander Bickel, Barry
Friedman, and Sanford Levinson, to name a few) have drawn attention to the fact
that constitutional courts engage in a kind of extended, negotiation-type
dialogue with the other branches of government and with the citizenry, with no
one branch having a final, definitive say.
Jacobsohn and Roznai reveal that dimensions of this dialogue in India
have been particularly dramatic. Upon India’s break from the British Empire, a Constituent
Assembly was elected by the respective assemblies of the provinces. After the
violent Hindu-Muslim conflict that ensued, ending with the separation between
Pakistan and India, the Assembly met for two more years, producing a
Constitution that took effect in January 1950. At that point it became the
Provisional Parliament, to be replaced by the official first Parliament after
democratic elections in 1952. The 1950 Constitution contains a Section III
listing Fundamental Rights and a Section IV listing Directive Principles. Tensions between these two sections have
undergirded much (though not all) of the back and forth between the Indian
Supreme Court and the Parliament. Perhaps uniquely among constitutions of the world, the
Indian Constitution commands positive ameliorative action by the political
branches. Article 38, for instance, says: “The State shall strive to promote the welfare of people by securing and
protecting as effectively as it may a social order in which justice, social,
economic, and political, shall inform all the institutions of national life.”
On more than one occasion, the Supreme Court has decided that certain of the Fundamental
Rights create checks on Parliament’s efforts to obey this mandate. Here is a
synopsis of the constitutional negotiation highlighted in the book that has
resulted from this constitutional tension. 1. Parliament initially adopted land
reform. 2. The Supreme Court promptly declared it a violation of the right to
property, specified in the Constitution. 3. Parliament then, in 1951, adopted
the First Amendment of the Constitution, providing, inter alia that property reform to help the poorer sections of society
could not be ruled unconstitutional. 4. The Court, capitulating, ruled in 1952,
that constitutional amendments have higher standing than ordinary laws. 5. Then
in 1967, the Court reared its head again, ruling that certain constitutional
amendments can be beyond the scope of the legislative power that the
Constitution established, and the Court had the power to declare such
amendments void, as here, specifically, when they interfered with the
fundamental right to property (Golak Nath
decision). 6. In 1971 Parliament gave itself power to create non-overridable
Constitutional Amendments, because it, Parliament held the constituent power of
India. 7. It then immediately enacted the 25th Amendment,
restricting the right to property, and accorded to Parliament the final say
over what would be appropriate compensation for property acquired by government
for a public purpose. 8. Two years later in the Kesavananda decision of 1973, the Court put forth the doctrine
that there is a basic structure to the Indian Constitution that may not be
violated by any action of Parliament, even a purported constitutional
amendment. It would be up to the Court to say whether any constitutional
amendment had to be declared void as in conflict with this basic structure, but
the Court did uphold the curtailment of the right to property. A second set of Court vs. Parliament negotiations took
place over affirmative action. The Constitution forbids the government from
“discriminating against any citizen on grounds of religion, race, caste” and so
forth. But it also mandates “The state shall promote with special care the
educational and economic interest of the weaker sections of the people, and in
particular of the Scheduled Castes and Scheduled Tribes.” Early on, a
government policy reserving a set number of seats in state universities for the
lower castes was struck down by the Supreme Court as unconstitutional
discrimination (n.96, 328). Immediately, Parliament responded by putting into
the First Amendment the rule that such affirmative action shall not be
interpreted as religious or caste-based forbidden discrimination. This
interbranch negotiation continued in 2005 when the Supreme Court struck down a
state policy reserving seats for the lower castes even in privately run
colleges. Again, Parliament used its Constitution-amending power directly to
override the Court’s decision. The Constitution of India not only forbids religion-based
discrimination but also declares India to be a secular state. In its famous Bommai decision (1994), India upheld an
emergency national takeover of state governments on the grounds, of a “failure
of constitutional machinery,” in three states that had been the site of, in the
words of Jacobsohn and Ronzai, “an orgy of Hindu-Moslem violence.” To justify
the takeover, the Court announced that secularism requires the equal treatment
of all religions (167). This book’s
discussion of India brings out the fact that this interbranch dialogue, or
negotiation, involves constitutional courts not only with branches of
government but also with the voting public. Despite the Bommai case pronouncements, the Indian public put into power in
2014 the BJP Party, led by Prime Minister Modi, an expressly ethno-nationalist,
pro-Hindu party. The party then amended the Constitution to destroy the
independence of the Supreme Court, but the Court declared that amendment
unconstitutional in 2015. After the book went to press, the Indian public in
2019 gave an even more commanding majority to Modi and his BJP. They then used
their power to enact a law that in certain sections of India grants citizenship
priority to non-Muslim immigrants. We can anticipate that the
judicial-political negotiation of the meaning of the Indian Constitution will
continue beyond the present moment. Similarly,
the book describes in both Israel and Hungary, a Supreme Court that actively,
albeit not without warrant in the officially adopted Basic Laws or Constitution,
established secular, cosmopolitan, liberal norms. In both states, a popular, ethno-nationalist
reaction then drove political changes to the Constitution. In Hungary the
changes entrenched the authoritarian powers of nationalist leader Victor Orban;
and in Israel, the Basic Laws were amended to declare that the “State of Israel is the national home of the Jewish people
. . . . [and] the right to exercise national self-determination in the
State of Israel is unique to the Jewish people.” The original Declaration of
the State of Israel had announced that the State of Israel “will ensure
complete equality of social and political rights to all its inhabitants
irrespective of religion.” Has the new Basic Law, undone this earlier
constitutional provision? Nothing is clear at this point. I
once wrote of the U.S. Supreme Court that judicial review uses the Constitution
as a kind of moral rope that to pull the public closer to justice, but if the
Court pulls too hard or too fast that rope can break and reaction could set in.
My reading of these stories in this book has confirmed my view that this
reality functions in constitutional republics the world over. Leslie F. Goldstein is Judge Hugh M. Morris Professor of Political Science Emerita, at the University of Delaware.
[1] I
speak loosely. Only males could vote in the U.S. in 1870. The 15th
established that race could not be the grounds of vote deprivation (It was
silent on what could be other grounds, such as gender, ability to read or pay a
tax, and so forth).
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