On Parasitic Growths and America’s Rigid Constitution

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Andrea Katz 

In 1905, an Australian parliamentarian observing the United States used an unusual metaphor to describe our Constitution. Years before, Henry B. Higgins (not George Bernard Shaw’s professor of linguistics!) had been on a trip to the forests of New Zealand and had seen a massive pine tree, the rimu, gracefully encircled by a flowering vine called the rata. To his surprise, Higgins learned from his hosts that with time, “the fair and clinging” rata would grow stronger and thicker, eventually choking the rimu to death. Higgins reflected, “So it may be with America’s rigid constitution and [its extra-constitutional] parasitic growths.”

As Higgins saw things, by the early twentieth century there were several “parasitic growths” encircling the U.S. Constitution: for one, the fact that during wartime, the American president became “a dictator with almost unlimited powers.” The mighty impeachment power, intended to punish presidents who disregarded the law, seemed to be reduced, in Higgins’ words, to a “mere scarecrow,” while extralegal conduct by presidents like Jefferson, Jackson, Lincoln and Roosevelt was tolerated, even celebrated. Higgins noted, too, that the Vice President was essentially a figurehead. And he was disgusted by a Congress dominated by money and political partisanship, and by a judicial appointment process suffering from the same defects.

Today, Higgins’ arboreal metaphor is unusual, not because he pointed out the gaps between America’s constitutional regime on paper and the one it has in practice, but because of the conclusions he drew from that fact. Today, almost all progressive constitutionalists extoll the “living constitution” and the judge-made rules that keep the Constitution up to date with current mores and values (here, Professor Levinson stands out as the rare, outspoken exception). Meanwhile, constitutional conservatives see the same extra-constitutional developments (viz., the administrative state, reproductive rights, same-sex marriage, &c.) as a fall from grace; they view text, properly read, as static, a view famously illustrated by the late Justice Scalia’s claim that the Constitution is “dead, dead, dead!” 

Today, Higgins would fit into neither camp. Unlike today’s liberals, he was unconvinced that creative judging could make a government work despite the strictures of its founding text. But unlike today’s originalists, Higgins understood that a constitution could no more stop growing than a tree could: a government that developed within the constraints of a “rigid constitution” (i.e. one that is difficult to amend) was like a sapling bound by a thick iron band, liable to grow “deformed, stunted, wanting rondure and completeness.”

Higgins’ reputation was made in his home country of Australia as a High Court justice (1906-1929), but in his short turn as a social scientist, he seems to have had a knack for prediction. Over 115 years later, America is still grappling with the same two problems he identified of imposing limits on the presidency, as well as the toxic effects of partisanship and money on the separation of powers. Critically, Higgins was right, too, that the practical un-amendability of the Constitution has led to a reliance on judges to solve the great issues of the age. We have become Court-centric, “lost our ability to write,” in Bruce Ackerman’s phrasing. 

As written, our Constitution doesn’t seem to provide easy answers for these great problems, and today, judicial resolution of them looks incomplete, at best. Our system of rights protection is uneven and haphazard, developed through (and, by the same token, abridged by) judicial doctrines like “incorporation” of the Bill of Rights, “substantive due process,” and the “state action doctrine,” missing in the rest of the world. The U.S., for instance, is the only Western democracy that lacks a provision for sex equality in its Constitution. While the world witnesses the spread of authoritarianism, our eighteenth-century system of democracy defense looks underdeveloped and vulnerable: many other countries feature attorneys general and prosecutors independent from the executive, for example; we do not, as the Mueller investigation and its blunted findings conspicuously reflect. Our federal elections are notoriously badly run compared to other wealthy Western democracies: no other country decentralizes so many of its core election-administering decisions; none elects their executives via an Electoral College (a system that has produced confusion and disillusionment, as Professor Levinson has pointed out for years); and almost unthinkably in the 21^st century, the U.S. Constitution stands alone in lacking a constitutional “right to vote”—what protections do exist for this right depend on the (apparently waning) political will of judges. 

Article V of the Constitution imposes notoriously high hurdles on formal amendment, but what renders that threshold unreachable, as opposed to merely onerous, is culture—constitutional culture. In early twentieth-century America, it was not uncommon to find critics using metaphors like Higgins’ tree to indict a Constitution that seemed impossible to change: a steam boiler ready to burst, a straitjacket, a dam on which a wall of water was bearing down, a suit of children’s clothes an adult man was vainly trying to squeeze into. These images spoke of a people being suffocated by a text instead of mastering it. Between Reconstruction and the Progressive Era, Americans’ faith in the amendability and wisdom of the Constitution had withered, many coming to believe radical amendment to the Constitution was necessary. (Tellingly, this meant that in the Progressive Era it was mainly legal conservatives who defended judge-made “evolving” constitutional meaning, mainly as a way to head off more radical proposals.) After the Sixteenth through Nineteenth Amendments proved that Article V was not broken, amendment fever cooled off again, and we entered the present period of constitutional history, in which the Court has taken first billing in steering constitutional change. 

Of course, constitutional upkeep-by-judiciary is necessary—to a point. Any constitutional democracy with judicial review will experience change to its constitution both by formal amendment and by judicial interpretation. Sometimes these are complements, other times substitutes: the balance shifts continually, as American constitutional history shows. In the late twentieth century, particularly during the era of Chief Justice Earl Warren (1953-1969), conservatives harangued against “judicial activism” and advocated constitutional amendment instead; now that the Court is firmly conservative, the idea belongs to the political left, for the same reason. Regardless of the seesawing politics surrounding the idea, it is crucial to realize that judicial constitutional development is incomplete as a mode of democracy maintenance for two reasons: one, it’s only as reliable as the identities of the justices on the bench and, two—more importantly—it produces its own system-wide distortions, namely a typical conservative policy bias, a decline in popular mobilization, a lack of manageable textual limits on government power, plus fatigue and cynicism in the population. Professor Levinson has also for years shed light on how parts of the Constitution that distort democratic inputs—Senate malapportionment, the unrepresentative Electoral College, the veto power, and so forth—cannot easily be remedied with anything short of amendment. Garbage in, garbage out, in other words… 

What, if anything, might trigger a return to our popular constitutional culture of yore? One possibility is that, as in the Progressive Era, growing judicial backlash catalyzes a return to a more “popular” idea of what the Constitution means, one in which law and politics are not so neatly compartmentalized, and where the Court’s opinion is just a starting point. One topical example: the leaked draft Supreme Court opinion purporting to overrule Roe v. Wade and the cataclysmic fallout thereto, which is prompting some commentators to expect a wave of electoral turnout against the opinion and in favor of federal reproductive rights legislation. 

Another possibility is that government dysfunction gets bad enough that it provokes the formation of a reform movement, hopefully before leading to full-blown political crisis. Again, the Gilded Age/Progressive Era provides a model, as ubiquitous political corruption and the rising power of capital led a deeply divided Reconstruction-era public to unite around the civil service reform agenda, managing to apply enough pressure to legislators to get them to vote against their own self-interest and pass the 1883 Pendleton Act. Today, American elections are similarly ripe for reform: poorly run and distorted by skewed electoral maps, unchecked spending, and voter disenfranchisement, not to mention a judiciary content to let said phenomena flourish unchecked for ostensible political gain. One illustration of a nascent solution: a handful of states have delegated mapmaking duties to newly-created electoral commissions as opposed to self-interested legislatures (a move, by the way, with parallels in the Progressive Era’s creation of independent commissions). 

Of course, in today’s polarized and disillusioned America, it is hard to think of changing the Constitution, much less building a broad coalition of any kind. But it seems to me there is a chicken-and-egg problem at work: a real constitutional politics is indeed impossible to sustain if we accept that problems of governance should be solved by the Supreme Court. Popular constitutionalism depends on what my co-panelist William Blake calls “constitutional faith,” by which he means that what is sacred in our constitutional democracy is not the text of the Constitution itself, but the people constituted by it. Constitutional faith takes trust in institutions and trust in each other. Both are in short supply today, but here history tells us, in a potentially reassuring way, that polarization and depolarization have a way of being cyclical. Needless to say, political realignment always starts with electoral politics, not a Supreme Court opinion. Perhaps we’re due for a reminder that a truly democratic constitutionalism looks more like popular mobilization than judicial supremacy, and that constant change itself is a natural and regular process of constitutionalism, much like the lifecycle of Higgins’ rimu tree. 

Andrea Katz is an Associate Professor of Law at Washington University School of Law in St. Louis. You can contact her at andrea.katz@wustl.edu.