Constitutional Theory in Crisis?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Julie C. Suk

When I graduated from law school twenty years ago, as Balkinization emerged in the blogosophere, con law folks were still reeling from the Supreme Court’s latest crisis of legitimacy known as Bush v. Gore.  Bruce Ackerman advised aspiring constitutional theorists of my generation to learn German.  French and Spanish, too.  If you want to do constitutional scholarship, look elsewhere, he urged. For a field that had long been about court-watching, the U.S. Supreme Court was not much to look at. Constitutional theory desperately needed some better things to watch.

Even before law school, as a doctoral student in political theory at Oxford in 1998, I was struck by the British debate about the proposed Human Rights Act, with so much skepticism about something Americans have always taken for granted: the empowerment of judges to declare statutes invalid because of their violation of human rights. That power, eventually adopted, was limited to ensure that Parliament, rather than the judiciary, rewrite laws deemed contrary to the European Convention on Human Rights. At Oxford, I attended the last of Ronald Dworkin’s lecture series at Oxford on “What is Law?” and “What is Justice?” in spring of that year, in which he defended the “moral reading of the Constitution”. Dworkin insisted that the American Constitution’s text articulated objective moral principles that Supreme Court Justices had the ability and responsibility to apply to concrete cases, exercising fresh moral judgment. The best moral answer did not come out of nowhere, though—judges were like authors of a chapter of a chain novel that must make sense in light of the existing story and its anticipated future as a whole. 

For Dworkin—and many American constitutional theorists of the second half of the twentieth century—the existing story made Brown v. Board of Education the protagonist and paradigm.  Brown was “moral reading of the Constitution” at its best, illustrating the judge’s potential as moral hero in a constitutional democracy.  That same term, Justice Breyer visited Oxford to deliver the H.L.A. Hart Memorial Lecture on “The Work of an American Constitutional Judge.” He presented Brown in a somewhat different light, as a practical rather than moral judgment, made to stem the “disastrous practical impact that the phrase ‘separate but equal’ had on American life.”  I later learned that Dworkinian “moral reading” of the Constitution had fallen out of favor with liberal constitutional theorists in the United States. Its reliance on philosopher-king-judges seemed less compatible with the commitment to democratic self-government under the Rehnquist Court. After reading Bush v. Gore’s equal protection paragraphs as a 1L, I couldn’t disagree. 

The decline of the moral reading of the Constitution among liberals coincided with the rise of originalism as the constitutional theory of the conservative legal movement.  This dynamic created some interesting challenges for constitutional theory on the left. In the decade that followed, Jack Balkin proposed a “living” originalism, embracing the constitution’s original design as a framework for democratic governance rather than the constraint on modernization it would be if the intention and meanings emanating from the Founding Fathers controlled. The rejection of the moral reading of the Constitution propelled liberals to find heir own way of embracing history and tradition.  For instance, in the abortion fights over the last thirty years, stare decisis became the strongest constitutional argument for abortion rights, rather than the moral commitment to women’s equal citizenship.  In Dobbs, many see the Court’s abandonment of precedent, its originalist method cherry-picking from the historical record —more so than the Court’s abandonment of women and their moral claims to control their own destinies—as constituting its widely proclaimed crisis of legitimacy. 

Immediately following Dobbs, the New York Times published Linda Greenhouse’s “Requiem for the Supreme Court,” which pronounced the Court dead.  Channeling a reaction shared by many liberal constitutional scholars, Greenhouse wrote, “What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.” The sentiment among the dissenting Justices and liberal constitutional thinkers that the decision to overrule Roe v. Wade irreparably damaged the Court’s legitimacy returns us to the same question we grappled with twenty years ago: What happens to constitutional theory after the Supreme Court can no longer be taken seriously?  When the law made by the Court is no longer worthy of theorizing, is constitutional theory also on its death bed? 

Several legal scholars, including Erwin Chemerinsky in a recent book and Reva Siegel in a forthcoming article, cast originalism as a major cause of the Court’s eroded legitimacy. Meanwhile, the originalist Justices who now form the five-Justice majority to reach conservative outcomes on “culture wars” issues like guns and abortion seem to believe that it’s judicial departures from the Constitution’s original meaning in Roe and other egregiously wrongly decided cases that threaten the Court’s legitimacy.  Without the anchor of history and tradition, originalists warn, judges are unleashed to make policy in the guise of legal interpretation. 

Constitutional theory’s intensive focus on originalism as an interpretive method, its ideological ties to the conservative legal movement, its selective and inconsistent (perhaps hypocritical) uses of history, its potential as a strategy of liberals and progressives, its compatibility with living constitutionalism, is unique to the United States. There are other worlds of constitutional theory, shaped by the experience of constitutions adopted in the twentieth century, with constitutional courts designed initially by an Austrian legal philosopher (Hans Kelsen) and developed after modern democracies internalized the lessons of legal realism and world war. Liberated from Brown as the North Star and Lochner as the bête noire, constitutional theory can explore a broader range of frameworks for democratic governance, in which a moral reading of a constitution makes sense because it empowers the people rather than judges. 

Outside the United States, constitutional amendments play a much more central role in shaping and changing constitutional meaning, including its moral commitments.  Amendments allow the people and their elected representatives to determine and update the big questions of political morality, instead of relying on judges as moral readers.  But this valve of healthy constitutional democracies is not discussed or theorized enough in the United States, for obvious practical reasons. Not only do we have one of the oldest constitutions in the world; it is also perhaps the most difficult to amend. Article V, because it requires two-thirds of Congress and three-fourths of the states, is, as Sandy Levinson has put it, functionally dead. Many peer democracies deal with disagreement about the Constitution’s meaning by initiating – and often completing—amendment processes that clarify and settle the issues with participation by the people and/or their elected representatives.  In recent years, as exemplified by the Irish referendum on abortion in 2018, the participation of the people through randomly selected Citizens’ Assemblies has helped to shape compromises on divisive issues. 

After Dobbs, French legislators immediately introduced and debated bills that would explicitly establish a right to abortion in the French Constitution, which had, in November, its first reading in the National Assembly.  When the French Conseil constitutionnel (Constituitonal Council, the body charged with constitutional adjudication) struck down gender quotas for women in politics in 1982 and women on corporate boards in 2006, constitutional amendments were adopted to clarify the permissibility of quotas and settle the matter.  The frameworks for democratic governance created by more modern constitutions enable lawmaking institutions and interbranch processes more fit to solve twenty-first century problems than the governance framework of the U.S. Constitution. Shouldn’t it plausible, even if not easy, to pursue a constitutional amendment in response to debatable court decisions?  Furthermore, the Irish experiment with Citizens’ Assemblies shows how plebiscitary innovations not mentioned in a constitution’s text can be incorporated into twenty-first century efforts at constitutional renewal. 

Even before events that enabled the court composition responsible for decisions like Dobbs—namely the death of Justice Ginsburg and her quick replacement by Amy Coney Barrett—Jack Balkin observed in The Cycles of Constitutional Time  that the political framework created by our Constitution was in a state of rot, requiring significant renewal. Can our constitutional framework really be changed? And how, if not through the Supreme Court, nor through Article V,  nor through ordinary legislation unlikely to be adopted by a malapportioned representative institutions that are in a state of rot? 

In 2023 and for Balkinization’s next two decades, perhaps constitutional theory can take a break from watching the U.S. Supreme Court and work on these questions instead.  A requiem for the Supreme Court need not become a requiem for constitutional theory.

Julie C. Suk is Professor of Law at Fordham University School of Law. You can reach her by e-mail at Jsuk4@fordham.edu.