Will “Liberal Constitutionalism” Survive the Joint Attacks from “Illiberal” and “Democratic” Constitutionalism?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Sandy Levinson

            I have been teaching courses on American constitutional law for almost 50 years.  During most of those years, it was a given first that the United States was an exemplar of “liberal constitutionalism” and that, perhaps more importantly, “liberal constitutionalism” was the only valid form of constitutionalism.  What did “liberal constitutionalism” entail.  Roughly speaking, it is a notion that a constitution, along with setting out the basic structures of the polity, at the same time establishes limits on what the polity can do.  These are commonly viewed as “rights,” and a major purpose of a constitution is thought to be the safeguarding of rights against what is often, especially in the United States, termed the “tyranny of the majority.”  One way of safeguarding minorities against such tyranny is to make it hard for popular majorities in fact to legislate.  Thus we have notions of both separation of powers and checks and balances to set up a variety of veto-gates to serve this purpose.  After all, for any legislation to pass, it must not only procure sufficient support in two quite different legislative branches, but gain as well presidential signature.  To be sure, Congress can overrule a presidential veto, but, over our entire history, presidents have been successful in sustaining their vetoes roughly 95% of the time.  Moreover, the very threat of a veto turns the legislature into a de-facto tricameral institution insofar as the House and the Senate alone cannot in fact work its will save in extraordinary situations.  But even if a bill does become a law, all of us are increasingly well aware that that is not the last step.  The federal judiciary, with the Supreme Court at its head, feels altogether free to exercise its own veto, based, of course, on often controversial readings of what limits are established by the Constitution itself.  

            I have for many years been critical of what I’ve called “our undemocratic Constitution,,” but there is no doubt that the Constitution was constructed by Framers extremely dubious about the capacity of “we the People” to engage in actual rule and, as importantly, was supported by most Americans who were taught from an early age to venerate the Constitution and view it as a basically sacrosanct scripture that defined what it meant to be American.  And, as suggested, even critics of one or another part of the Constitution—the electoral college, say—did not extend that criticism to the idea of “liberal constitutionalism” itself and to suggest to new countries writing their own constitutions after World War II that the United States Constitution represented the basic template of “constitutionalism” in general.

            Thus many many years ago, when two colleagues of mine at the University of Texas Law School and I decided to teach a brand new course on “comparative constitutional law,” we argued in front of the students whether Saudi Arabia had a genuine “constitution” inasmuch as it was decidedly illiberal in a variety of dispositive ways.  It establishes rule by a basically unaccusable monarchy that ostensibly is itself committed to following the commands of the Quran.  Protection of individual rights, to put it mildly, is not a motif of that constitution.  The critique of the Saudi constitution was quite different from that directed, say, at the Soviet Constitution of 1936 or its successors.  One might read the text as rights protective in important sense; the critique was that it was a “sham” constitution, on paper quite admirable, but, alas, providing almost no guidance to the actuality of Soviet politics and the distribution of power.  A basic notion of legal sociology is the difference between “law on the books” and “law in action,” and the Soviet Constitution was indeed relegated to the “book” part of the library, filed under “fiction.” 

            In addition to the aforementioned protections of minority rights against majoritarian overreach, some analysts also argued that a “real constitution” must be relatively hard to change, as distinguished from the ordinary legislative process.  This might raise questions, for example, about the status of the Swedish or Austrian constitutions, both of which acceptable to most liberal theorists in terms of articulated values, but are, at the same time, far more permeable, to change than is the case with, notably, the United States Constitution, probably the most difficult-to-amend constitution in the entire world.  Until relatively recently, Article V and the hurdles it presented to formal constitutional amendment was seen as a feature rather than a bug, especially if one credited the constitutional theories of esteemed scholars like David Strauss or Bruce Ackerman.  For Strauss, we were graced by a “common law constitution” that enabled sagacious judges in effect to update the Constitution as necessary; Ackerman, on the other hand, created an elaborate theory by which amendment outside the barriers established by Article V was legitimate precisely because proponents could capture the various institutions of American politics that would then be responsive to desires for reform. 

            It is not irrelevant that the leading American—and perhaps world-wide—jurisprude of the era was Ronald Dworkin.  “Taking rights seriously” was precisely what a constitutional order was supposed to do, and courts, the “for a of principle” had a mission to do that.  Dworkin expressed ill-concealed disdain for legislative institutions, which were fora for often illogical compromises.  To be sure, he received his share of criticism from those who believed that his principals tended to be those of the Democratic or British Labour parties, but few attacked his most basic premise that taking rights seriously was the foundation stone of any regime worth honoring with the name “constitutional.” 

            I think it is fair to say that most (even if not all) American teachers of constitutional law viewed their mission as not only describing the working American constitutional order, but also inculcating in students a respect and devotion to the Constitution as a document.  I described this as “constitutional faith” in my book of that name.  I devoted a chapter to the critique by Paul Carrington not only of Critical Legal Studies as a way of analyzing law, but of the proposition that “crits” should necessarily be welcome within the American legal academy.  Carrington viewed law schools as more akin to seminaries than to detached academic departments, and the role of seminaries is indeed to maintain the faith by teaching its premises to the young.  Moreover, Americans were good evangelists, attempting to spread that faith when, especially after 1989, many American professors were asked to “consult” with new groups of would-be “framers” in a variety of countries.  Copies of The Federalist were often shipped abroad by the United States Government. 

            I believe that I may be describing an age that is past or, at least, is coming under increasing attack even within the United States itself.  I have now begun, for roughly the tenth time, a course that I teach at U.T. with my friend Victor Ferreres, who visits UT from Barcelona every spring, on “comparative constitutional design.”  When we began teaching, together over a decade ago, I think we basically shared the assumption underlying the debate from long ago that “real” constitutions are, generally speaking, “liberal constitutions.”  As delineated particularly in an essay by the distinguished German scholar and former member of the German Constitutional Court Dieter Grimm, from the Oxford Handbook on Comparative Constitutional Law, the basic text that we use, the constitutions that most of “us,” i.e., contemporary legal academics, focus on  tend to share certain attributes that can be traced back, say, to the “fathers” of liberal political theory like Locke and Montesquieu, as well as the American and French constitutional orders established in 1787 and 1791, respectively.  They do adopt some version, however complex, of “separation of powers” and, more to the point, define their purpose, as delineated in the Preamble to the United States Constitution, as securing the “Blessings of Liberty.”  The many contemporary NGOs that will immediately try to intervene in any contemporary projects of constitution drafting are, with rare exceptions, devoted to emphasizing the importance of one or another bundle of rights, whether or individuals or of groups. 

            Modern constitutional theory, especially in the United States, focuses almost exclusively on how to “interpret” the Constitution in ways that will optimally protect the rights that the particular interpreter will regard as most important.  For some, these are rights of, say, freedom of expression or free exercise of religion; for others, reproductive choice or, concomitantly, the right of a fetus not to be aborted; yet others will emphasize the importance of protecting property rights against an invasive state.  But all agree that the basic task of a constitution is to make sure that government is not so strong as to be able to override the all-important sets of rights whose protection is the ultimate justification for having a government in the first place.

            But, to return to Saudi Arabia, it is, shall we say, a “self-evident truth” that not all regimes in the world today are “liberal” and therefore rights-oriented.  Iran and Pakistan, to take two other prominent examples, proudly view themselves as “Islamic states.”  The task of the state is to instantiate the commands of Islam.  Indeed, if one believes, ontologically, in the existence of a Divine Sovereign, and conjoins that belief with the epistemological confidence that one can ascertain what the Divine Sovereign requires of us, it is difficult to understand why that wouldn’t be the central focus of the state.  Israel, with its devotion to being a “Jewish” as well as a “democratic” state, is becoming, according to some (Jewish) critics, ever more theocratic in terms of defining a “Jewish state” not only sociologically but also by reference to fidelity to the presumptive demands of the Torah and halachic Judaism.  Certain contemporary self-defined American critics of liberal constitutionalism appear to embrace one or another version of “Catholic integralism,” by which the state would become the servant of the political and social views articulated by that Church, which does, after all, proclaim itself the “Rock” upon which the Christian faith stands. 

            Of course, even a “sociological” definition of Israel as Jewish state presents problems for many liberals inasmuch as that is taken to mean, by the current Israeli government, that the state is legitimately primarily concerned with the welfare and flourishing of only one subset of its national population, i.e., those who are Jewish, rather than being a state that genuinely treats all of its citizens, including non-Jews, with what Ronald Dworkin taught us to call “equal concern and respect.”  See the Basic Law of the Nation-State of the Jewish People, https://en.wikipedia.org/wiki/Basic_Law:_Israel_as_the_Nation-State_of_the_Jewish_People#Content_of_the_Basic_Law, mandating that Israel is fundamentally the state of the Jewish people, with all others presumably being secondary.   Israel, perhaps, should be classified with other ethno-national states—think of contemporary Poland and Hungary—that are unabashedly particularist (and ascriptivist) in their political visions.  There are an increasing number of Americans who feel comfortable suggesting that the United States itself should be defined as a Christian state, some because they believe, falsely, that that was desired by Framers whose wishes should be followed, others because they believe that a secular state is almost by definition a decadent one and that only submission to the truths of Christianity can save us.   At the same time, there is an increasing cohort of American critics of the Constitution, mostly on the left, who agree with me that it is way too “undemocratic” and in need of fundamental reform, including clipping the power of the Supreme Court. 

            So in teaching contemporary constitutional law, it is a fundamental error to assume that the only candidates, as it were, are “liberal” and “illiberal” constitutions, with the latter subdivided between theocratic constitutions like Saudi Arabia’s or Iran’s or ethno-nationalist ones.  Instead, it seems quite obvious that “liberal constitutionalism” is increasingly under attack from what might be called “democratic constitutionalists” who are skeptical of the “guardrails” placed on popular governance in the name of abstract and inevitably controversial “rights.”  For example, last year saw the publication, by the Harvard University and Cambridge University presses, respectively, of books by two distinguished scholars, the British Martin Loughlin, Against Constitutionalism, and the Argentine Roberto Gargarella, The Law as a Conversation Among Equals.  I owe my familiarity with them to an incisive unpublished review by Mark Tushnet, himself, of course, a distinguished defender of “popular constitutionalism” (or “populism) against its liberal critics.  Both Loughlin and Gargarella are harshly critical of liberal constitutionalism inasmuch as it limits the scope of democratic politics by removing too many legitimately controversial issues from the play of political contention, usually by creating courts that will feel free to veto enactments, however popular, that are said to violate the constitution in question.  Moreover, and crucially, it has become clear that a younger generation of left-leaning American constitutional lawyers and theorists in no way share the infatuation with the Warren Court that characterizes the mindset of their older colleagues.  These “youngsters” include Sam Moyn, now at Yale (after leaving Harvard), Ryan Doerfler (now at Harvard after leaving Chicago), and Niko Bowie (at Harvard), all of whom have little use for what might be called classical liberal constitutionalism and who embrace a far more “democratic” vision of what constitutionalism should mean.

            It is not that these scholars reject the idea of constitutions completely.  I doubt that they would suggest the United States emulate New Zealand and Israel (and, of course, the United Kingdom) in abjuring any formal “written constitutionalism” at all.  I suspect they would agree that it is a good idea, in a large society, to spell out very basic features involving decision-making structures.  Who will be entitled to pass laws, by what procedures?  How will they be selected, and for how long will they be allowed to serve?  It is impossible to imagine any modern society relying on tacit “conventions” to answer such questions.  Even a local garden club might wish to have a one-page “constitution” setting out answers to these very basic questions.  But this is obviously very different from limiting what the leaders can in fact do while they inhabit their legal roles.  If the “leaders” turn out to be legislatures elected by “the people,” for example, one might justify legislative supremacy in classic “democratic” terms.  One might emphasize the Lincolnian phrase “government by the people” instead of simply “of” or “for” the people, which can in fact easily justify rule by political elites confident in their ability to know the people’s interests.  James Madison in Federalist 63 proudly emphasized that his version of “republican government” left no room at all for any “direct democracy.”  Everything is to be done through representatives who, empirically, may or may not be genuinely accountable to “the people.”   Genuine “self-government” is not a key feature of the Constitution.  Many American state constitutions, literally from Maine to California, allow their electorates far more of a role in actual governance than does the United States Constitutions.  The point of these state constitutions is that the people themselves should be able to engage in self-government.  The more one agrees with this view, which I call “democratic constitutionalism,” the less one will applaud the restrictions placed by ostensible “guardrails” that serve to limit such government.  That is the essential difference between “democratic” and “liberal” constitutionalism.

            The democratic critique of “liberal constitutionalism” can be traced back to James Bradley Thayer, Oliver Wendell Holmes, and Felix Frankfurter or, for that matter, ‘Brutus,’ who offered prescient critiques of the 1787 Constitution in terms of the possibility of generating a far-too-powerful judiciary that would trench on democratic politics.  All of them prioritized “democracy” over judicially-protected “guardrails.”  Indeed, Frankfurter is the subject of a long and admiring new biography by Brad Snyder titled  Democratic Justice.  And the late-19th century movement, particularly in the American West, to establish procedures for initiative and referenda, was based in part on the altogether accurate perception that “representative” legislative institutions could all too easily be captured by wealthy elites indifferent to the general public interest. 

             Perhaps the most important late 20th century book of American “constitutional theory,” John Hart Ely’s Democracy and Distrust, can be placed within this tradition.  Ely presented a valiant defense of much of the Warren Court’s handiwork inasmuch as it was designed to make the American system of government more truly democratic.  That is, it was legitimate for the judiciary to intervene in order to strike down impediments to majority rule, to engage in what Ely notably called “representation reinforcement.”  Thus he defended what some people believe contributed to Frankfurter’s own stroke, the Reapportionment Revolution that was begun by Baker v. Carr (1962), in which Frankfurter wrote his final, completely anguished, dissent.  It is not that he defended the propriety of Tennessee legislators violating their own constitution by refusing to redraw legislative districts in response to the fact that the current districts gave disproportionate voting clout to minorities of farmers and other non-city dwellers.  Instead, he wrote that the only remedy was for the affected majorities to try to “sear the consciences” of the legislators in ways that would presumably lead them to mend their ways.  I wrote my own Ph.D. dissertation on Holmes and Frankfurter and, as a good 1960s liberal, scoffed at Frankfurter’s pathetic advice and reliance on what I called a “democratic faith” that objectively served only to serve the entrenchment of an illegitimate minority ruling class. 

            But if Ely defended quite aggressive “representation reinforcement,” he was a notable critic of several important decisions that arguably had nothing to do with enhancing the procedures of American democracy and everything to do with implementing controversial substantive values.  Thus he wrote a savage critique of Roe v. Wade in 1973; he even went so far as to suggest that the dissenting justices Hugo Black and Potter Stewart were right to dissent in the earlier case Griswold v.  Connecticut, involving that state’s prohibition of contraceptives even for married couples.  The fact, as Stewart wrote, that it was an “uncommonly silly law” or, as Black conceded, a clear invasion of marital privacy, did not, they (and Ely) believed, translate into judicial authorization to declare that it violated the United States Constitution.  Such an argument, of course, underlies Justice Alito’s opinion in Dobbs:  The Constitution says nothing specific about reproduction choice (and much else, for that matter); therefore, the people of each state should have carte blanche to make their own decisions as to the relative protection of pregnant persons or their fetuses. 

            It therefore is no longer adequate simply to assume that the only relevant constitutions in today’s world, either descriptively or normatively, are liberal constitutions of most “Western” countries or, for some, their illiberal counterparts in, say, Hungary, Poland, Saudi Arabia, or Singapore.  A vitally important worldwide debate is now taking place about the merits of any guardrails against majority rule.  (Israel appears to be on the verge of stripping its judiciary of any authority to limit Knesset’s power, regardless of consequences for the “equal concern and respect” or “dignity” of the losers under the legislation.)  To be sure, many of the critics of “democratic constitutionalists” argue that an unfettered majority would be inclined to pass illiberal legislation, which is undoubtedly true.  Oliver Wendell Holmes, after all, almost luxuriated in his willingness to uphold what he might privately regard as “tyrannical” laws, and he wrote the British philosopher Harold Laski that if the American people wished to go to hell, it was his job, as a judge, to help them get there.  Americans, with their obsessional concern about “tyranny of the majority,” have always had an uncertain relationship with “democracy.”  For better or worse, most of “us” tend to be Madisonians or Hamiltonians, who basically fear popular rule, rather than Jeffersonians, who proclaim to welcome it.

             Even as we rightly wish to protect “liberal constitutionalism” against decidedly illiberal critics like Victor Orban or, at least in some respects, Adrian Vermeule, who would gladly support a constitution that would regulate sexual behavior in ways repugnant to most contemporary liberals, we also have to grant the strength of the criticisms directed at the actualities of the American version of “liberal constitutionalism.”  That constitutionalism has, from the beginning until the present day, often served to safeguard the power of existing ruling elites and to make it difficult, if not impossible, for the promise of what Willy Forbath and Joey Fishkin call an “anti-oligarchic” Constitution to realize itself through popular politics.  Their own contribution to this symposium discusses the critiques offered by Moyn and others.  In any event, that is an important debate that transcends the topic of “constitutional interpretation” that so obsesses the legal academy.  We must, at the same time, confront essential issues of constitutional design and the extent to which we wish to eliminate certain issues from the sphere of “politics” instead of leaving them to the rough and tumble of political debate, in which, of course, “we” might lose.  Defenders of “the Warren Court” as myth and symbol are increasingly facing a pincer attack coming from the Right and Left alike.  The actuality of the American constitutional order depends on whether those attacks can be repulsed and, if not, which side wins.  There is no particular reason to be confident as to what the future will bring in this regard.