Balkinization: Is an inclusive constitutional democracy possible?

Is an inclusive constitutional democracy possible?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Olatunde Johnson

Congratulations to Balkinization on its 20th Anniversary. I have always found the blog an especially valuable resource for debates about constitutional methodology. The blog’s domain extends beyond theory and interpretation, of course. And so I am curious to see how the blog evolves over the next twenty years.

Given threats to democracy, increased political violence, fervent and polarized social movements, and a Supreme Court willing to overturn settled precedent, I am drawn to conversations about the ideal role of constitutionalism in American society. Some commentators offer strong arguments against constitutionalism as a mode of governance, and make entreaties to progressives, at least, to focus less on expanding the constitution and instead on diminishing the power of the Supreme Court, and furthering a democratic politics of inclusion.

These arguments have resonance to me. When the Balkinization blog was born in 2003, I was a civil rights litigator. A blog about constitutional law theory was interesting but far afield from our racial justice work which primarily involved the implementation of statutory and administrative law. Our federal constitutional law work (at least in our civil cases) was often defensive. Asserting Congress’s power under Section 5 of the 14th Amendment to enact statutory disparate impact standards. Preserving an educational institution’s ability to consider race and ethnicity as factors in admissions or to promote integration against a “colorblind” view of the 14th Amendment.

A few years later when I entered academia, I was often surprised by the amount of public law focus on constitutional methodology and the Supreme Court’s constitutional law decisions. Often, it seemed to me, this emphasis came at the expense of exploring the work of Congress, state legislatures, administrative agencies, or even state, trial, and appellate courts. Given my concern about equality and discrimination, it seemed that the federal constitution was where hope perished, offering a sadder, more limited range of tools than those used by real-life lawyers and advocates.

Democratic politics, now urged by those skeptical of constitutionalism, was already a core part of our law reform work when I was in practice. We often represented clients that were not individuals, but groups engaged in multiple forms of advocacy outside courts. We knew that rights articulated by courts were only the beginning, and that those rights needed to be implemented by legislatures and administrators to be meaningful. Today many grassroots civil rights and racial justice oriented social movements would go even further. The constitution is certainly not central to their theory of change, and they even eschew courts (except perhaps to defend their rights to protest). Their aim is to build power and reform institutions through electoral politics, mass mobilization and movement-backed advocacy.

Hesitancy about placing too much stock in constitutional rights and remedies continues to define my outlook as a teacher and a scholar. And yet at this moment, I am perceiving risks to overstating constitutional skepticism. Even if the constitution is not the site of our broadest claims for justice (understanding of course that “justice” is a contested notion), one cannot depend on the democratic arena without a constitution that ensures core citizenship rights, enables fair representation and participation, and provides political equality. As has become common to note, many features of our constitutional structure do the opposite --- including the design of the Senate, the Electoral College, the absence of judicial term limits, and the structure of Article V. These and other structural anti-democratic features of our constitution can be exploited at a time of highly polarized politics. And even as the current Supreme Court majority urges a move to the legislative arena over judicial rights (as in Dobbs), it does so selectively (see for example Bruen). The Court’s voting rights and equality law doctrine also creates obstacles to full participation of women, people of color and others whose rights are not assumed to be foundational to the constitutional order.

And as a practical matter even seeking relief through democratic institutions is not always sufficient. Matters that appear settled by political and institutional branches become inevitably constitutional questions. Take the Harvard and UNC cases that raise once again the question of the constitutionality of race-conscious admissions . The holistic admissions approach practiced by many public and private institutions seems fully consistent with the Court’s precedent in Grutter. But this seeming democratic settlement for a mild form of inclusion has not warded off the constitutional challenges. A victory for the challengers risks further eroding any remaining anti-caste conception of the 14th Amendment. The consequences could extend beyond higher education, with implications for racial remedies in K-12 education, environmental justice, federal loan programs, and housing. In the face of these challenges, I support those commentators who remind us of the original abolitionist public meaning of the 14^th Amendment – shaped by legislators, advocates, and enslaved persons. Not because I venerate the constitution or believe in originalism, or even have faith that these arguments will be convincing for courts. But because it reminds us of a moment in which social movements shaped the meaning of the constitution.

Where I land is hoping for more varied discussions in constitutional law. Conversations that might provide resources for creating the inclusive, multiracial democracy we have never yet been. To start, this might require consideration of Supreme Court term limits, redesigning the Senate, granting statehood to additional districts or territories, reforming Article V, or drawing on state constitutions. We should be talking about all of this and more, whether we agree or not. After January 6th, 2021, we at Columbia launched the Constitutional Democracy Initiative. Despite the title, we did not place the current American constitution at the center of our conversations. In the beginning we sought to engage students, academics, and practioners in a broad set of conversations about democratic resilience against authoritarianism, ways to enhance more deliberative and participatory democracy, and promoting political and social equality. In essence, democracy’s possible futures at a time of division and threat. As we approach the second year, we are turning to the problem and challenges of American constitutionalism. Our humble hope is to help spark fresh ideas about the role American constitutions might play in the democracy some of us hope to create.