The Constitutional Theory of the Working Constitution

Mark Graber

For the Balkinization 20th Anniversary Symposium 

How constitutions work and can be made to work better is the fundamental question of constitutional theory.  Façade constitutions exist.  Witness China and the former Soviet Union.  Nevertheless, most constitutional reformers are interested in securing results.   The Federalist framers wanted to strengthen the national government. The persons responsible for the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of the United States hoped to destroy slavery, the slave power, and the slave system.  Proponents of congressional Reconstruction did not simply want parchment barriers that would be ignored in the former slave states or words on paper that would give domestic and foreign audiences the impression that the United States was committed to destroying slavery, the slave power, and the slave system. 

Words matter, but as efforts to achieve particular results, not merely as conveyers of linguistic meaning.  A constitution that declares, “the federal government has no power to interfere with slavery in any state” is unlikely to be as effective an instrument for abolishing human bondage as a constitution that declares, “Neither slavery nor involuntary servitude shall exist.”  Nevertheless, what matters for constitutionalism are the mechanisms for implementing these sentiments and how these mechanisms work. A constitutional ban on slavery constitutionally implemented in large part by officials from former slave states in a regime committed to federalism works differently than a constitutional ban on slavery constitutionally implemented by a Congress controlled by antislavery advocates and abolitionists.

The meaning of constitutional words is inextricably linked to the constitutional mechanisms for implementation.  Larry Kramer and other popular constitutionalists remind us that words designed to be implemented by courts are far more likely to have legal meanings than words designed to be implemented by a dominant political party or virtuous elites in the elected branches of national government.  What people think they are accomplishing when they ratify a constitutional provision protecting free speech depends in part on whether they think judges, legislators, or juries will be responsible for determining the scope of that right.  Constitutional originalism investigates what framers are doing when they add language to the Constitution and is only incidentally concerned with possible public meanings of that language at the time of ratification.

Constitutions work when the people are able and willing to operate constitutional institutions in ways that achieve constitutional ends.  Stephen Elkins has long pointed out that functioning constitutional regimes consist of a set of values and ends, institutions designed to achieve those values and ends, and a people who share those ends and can operate the institutions in ways that achieve those ends.  Regimes become dysfunction when severe disharmonies exist between constitutional ideals/values, constitutional institutions, and the constitutional people.  The constitutional problem is almost always not that the constitution is being misinterpreted, but that constitutional institutions are no longer securing constitutional purposes, or that the constitutional people either no longer share those constitutional purposes or cannot operate constitutional institutions in ways that achieve constitutional purposes.

Consider the different perspectives an advocate of abortion rights might take on the contemporary politics of reproductive choice in the United States. The problem might lie with constitutional values.  The Constitution of the United States, properly interpreted, might not protect abortion rights or constitutional protections for abortion rights might be sufficiently unclear that persons in good faith might believe that states are constitutionally empowered to protect unborn life at the expense of the pregnant woman’s choice.  The Constitution of the United States, properly interpreted, might protect abortion rights, but dysfunctional constitutional institutions are presently empowering unsympathetic constitutional authorities in the courts and in many states who are committed to banning abortion.  The Constitution of the United States, properly interpreted, might protect abortion rights, but the constitutional people are failing the Constitution either because the number of people committed to protecting abortion rights in the United States is too few to enable constitutional institutions to protect abortion rights or the people who favor abortion rights are incapable of operating constitutional institutions in ways that protect abortion rights.

The following paragraphs offer a vocabulary for thinking about how constitutions work and do not work.  As numerous posts in this 20th anniversary celebration indicate, a vocabulary exists for constitutional interpretation.  My forthcoming volumes on the post-Civil War Amendments attempt to provide a language for thinking about how constitutions work. Feedback both on the vocabulary and the substance is very welcomed.

Constitutions work in four ways.  Constitutions constrain politics when political actors refrain from acting on their all-things (but the constitution)-considered best judgment because that judgment is inconsistent with constitutional norms.  Abraham Lincoln hated slavery but declared throughout his political career that he would return people escaping slavery to their putative masters.  Constitutions create politics when constitutional texts empower political actors to act on their all-things-considered best judgment.  The Thirteenth Amendment empowered antislavery advocates to ban slavery in the former confederate and border states.   Constitutions configure politics when governing institutions are structured in ways that privilege the selection of particular powerholders and particular policies.  The Constitution of 1787 created institutions the framers thought would guarantee that slavery would be abolished (or buttressed) only when a bisectional consensus supported emancipation (or expansion).  Constitutions constitute politics when constitutional texts help fashion a citizenship that shares the values underlying those texts.  At least some framers thought the absence of the word “slavery” in the constitutional text would communicate to the constitutional citizenry that human bondage violated natural law.

Most constitutional provisions reflect efforts to constrain, create, configure, and constitute politics.  Consider constitutional protections for free speech.  Such provisions may constrain persons who would otherwise be inclined to suppress political dissent.  Such provisions may empower proponents of free speech, perhaps in the federal judiciary, to constrain state actors inclined to suppress political dissent.  A regime in which free speech is relatively unrestricted configures politics in ways that empower those people who can best master the communicative technologies of their time. Constitutional provisions that protect free speech may help fashion a citizenry committed to protecting free speech.  State equality in the Senate constrains persons who believe in representation by population, configures politics by enabling low population states to receive far more than their fair share of federal funds, and constitutes politics when people assume that equal state representation is a natural feature of governance in the United States.

Constitutional provisions may not work as reformers intended for numerous reasons.  Unsympathetic constitutional authorities may disobey constitutional commands. Many slaveholders held persons as slaves even after the passage of the Thirteenth Amendment.  Unsympathetic constitutional authorities may neglect to exercise constitutional powers.  When Democrats regained control of Congress in the 1890s, they immediately repealed legislation implementing the Fifteenth Amendment.  Unsympathetic constitutional authorities may deny that violations of constitutional rights are taking place or the need to exercise constitutional powers.  Democrats and former slaveholders repeatedly claimed that free persons of color were adequately protected by local officials from very sporadic violence by white supremacists.   Unsympathetic constitutional authorities may invalidate constitutional provisions that they claim are inconsistent with fundamental constitutional commitments or were not adopted by constitutionally processes.  Prominent Democrats in the 1860s insisted that the Thirteenth and Fourteenth Amendments were unconstitutional on both substantive and procedural grounds.  Unsympathetic constitutional authorities may capture constitutional provisions by using those provisions to advance different ends than those championed by the original constitutional reformers.  White supremacists after the Civil War claimed that Reconstruction violated the post-Civil War Amendments by giving special rights to persons of color.  Unsympathetic constitutional authorities may circumvent constitutional provisions by finding another constitutional path for achieving purposes antithetical to the constitutional reform.   Former confederate states first substituted various voting tests and poll taxes, and then gerrymandering and onerous registration requirements for bans on African-American voting.  Unsympathetic constitutional authorities may circumscribe constitutional provisions by unduly narrowing their scope.  The Supreme Court in The Civil Rights Cases (1883) held that racial prejudice was not a badge or incident of slavery and in Plessy v. Ferguson (1896) held that separate but equal was not race discrimination.

Sympathetic constitutional authorities confront problems of incompetence, inadequacy, inconsistency, and inefficiency when implementing what they believe are desirable constitutional reforms.  Problems of incompetence occur when the people and constitutional institutions combine to generate a leadership class that does not know how to implement constitutional reforms successfully.  Reconstruction failed in part because many Republicans did not realize that ordinary southerners could not be induced to support racial equality once the antebellum southern elite was politically neutered.  Problems of inadequacy occur when the constitution denies constitutional authorities the powers they need to implement constitutional reforms successfully.  Many Republicans thought constitutionally problematic ongoing martial law in the former confederate states and presidents who recognized the need for a military presence could not on their own provide the funding for the number of federal troops necessary to protect persons of color and former southern Unionists.  Problems of inconsistency result when constitutional authorities discover that as a result of unanticipated circumstances various constitutional goals conflict.  Republicans who cried "Free Soil, Free Speech, Free Men, Fremont," in 1856 discovered in 1866 that allowing such southern racists as William McCardle to speak freely threatened black liberty.  Problems of inefficiency result when the constitutional processes for implementing a constitutional reform are too cumbersome to enable constitutional authorities to make timely decisions or create gridlock between sympathetic constitutional authorities who dispute the best means of achieving consensual constitutional ends.  Disagreements among Republicans delayed consensually needed legislation during the short period in which substantial northern support existed for racial equality. 

Constitutional theory that explores how constitutions work and do not work stresses how constitutional politics are configured, treating constitutional constraints as a largely peripheral matter.  Constitutional purposes typically require reformers seeking to constrain constitutional politics to rely on such gross or essentially contested concepts as “liberty,” “equal protection,” or, for that matter, “diversity.”  Unsympathetic constitutional authorities have too many means for frustrating constitutional reforms that rely on such constraints, even when opponents of a constitutional reform do not engage in outright disobedience.  Constitutional reforms are likely to be secured in practice only when they configure constitutional politics in ways that privilege the selection of sympathetic constitutional decision makers and constitute constitutional politics in ways that maintain and increase the number of citizens who support and identify successfully sympathetic constitutional decision makers.

Constitutional reformers in the United States during the eighteenth and nineteenth centuries recognized that constitutions work best when constitutions configure constitutional politics in ways that empower constitutional authorities with the right combination of capacities, interests, and values to pursue constitutional ends.  The persons responsible for the Constitution of 1787 and the Constitution of 1868 emphasized constitutional politics, spending almost no time expounding on what anachronistically came to be called “the original public meaning” of constitutional constraints and constitutional powers.  Alexander Hamilton captured the constitutional spirit of the founding generation when in Federalist 31, by far the most important of the Federalist Papers, he declared, “all observations founded upon the danger of usurpation, ought to be referred to the composition and structure of government, not to the nature of extent of its powers.”  Representative Thaddeus Stevens called for constitutional reforms that reconfigured constitutional politics when, opening the congressional debate on Reconstruction in the Thirty-Ninth Congress, he insisted that the fundamental purpose of proposed post-Civil War constitutional amendments was to “secure perpetual ascendancy to the part of the Union . . . so as to render our republican Government firm and stable forever.”

Efforts to configure and constitute constitutional politics have pitfalls.  Reformers misconfigure (better word desperately needed) constitutional politics when either because their initial assumptions about constitutional politics were wrong or became outdated, the constitutional politics they create has different biases than those intended.  When population before the Civil War flowed northwestward instead of the expected southern direction, the House of Representations became a bastion for the free states rather than the expected bulwark for slavery.  Reformers missocialize (again, better word desperately needed) constitutional politics when practices thought to fashion a citizenry with one set of values fashion a citizenry with a different set of values.  Contrary to Republican expectations, Section Three of the Fourteenth Amendment's brief political neutering of the antebellum southern political elite did not foster the rise of a more racially egalitarian southern elite.

Post-New Deal Constitutionalism was Publian in structure, but not in theory.  The Constitution during the mid-twentieth century worked to protect to some degree free speech and racial equality because fairly non-ideological parties foisted constitutional problems on to elites in the judiciary (and executive branch) who, regardless of partisan affiliation, tended to have liberal opinions on the constitutional issues of the day.  Kevin McMahon documents how Republicans and Democrats in the executive branch sought to empower courts to strike down Jim Crow schooling.  Academic theory dismissed structure.  Obvious to the political foundations of this constitutional regime, many law professors pronounced federal courts as a “forum of principle” that could be counted to stand above constitutional politics no matter how the rest of the regime was configured.  The only constitutional theory worth doing was constitutional interpretation that explained to various judges how they could interpret the Constitution correctly.

The truncated constitutional theory of the New Deal order is outdated.  The Roberts Court has taught some, but not all law professors that courts are part of the political regime, even as the judiciary does not precisely mirror the sentiments of any other part of the political regime.  How the Constitution configures politics matters when the issue is whether courts will protect abortion rights or whether Congress will impeach and convict a president for inciting an insurrection.  Those who wish for a different constitutional politics, or for that matter, wish to sustain contemporary constitutional politics, should return to a more traditional constitutional theory that explores how constitutions work and consigns to a relatively tiny corner concerns with what constitutional provisions mean.