Balkinization: Bad Faith Constitutionalism

Bad Faith Constitutionalism

Guest Blogger

This post was prepared for a roundtable on Constitutional Crises, 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.

Keith E. Whittington

Generally speaking, constitutional crises are best understood to refer to realistic threats of a breakdown in the constitutional order. The term was once largely unknown in American political rhetoric, and when it was deployed it was mostly to account for political events abroad. We could readily see that President Slobodan Milosevic’s refusal to concede defeat in the 2000 Yugoslavian election was a constitutional crisis. (Milosevic eventually stepped down a few weeks later after the army and constitutional court recognized the opposition leader as the electoral victor, a general strike paralyzed the country, and a large mob rampaged through the parliament building.) Similarly, President Alberto Fujimori’s successful autogolpe in 1992 in Peru presented a clear constitutional crisis. (Facing mounting political opposition, Fujimori dissolved Congress, reorganized the judiciary, suspended the constitution, and arrested opposition leaders.) Cries of constitutional crisis have become commonplace in the United States over the course of recent decades. The result has mostly been a debasement of the term as its use multiplied and became a partisan weapon. Despite its overuse, however, there is a real phenomenon that the idea of a constitutional crisis can helpfully characterize. A constitutional system can sometimes cease to function, and we need the language to talk about such a possibility.

I have long found it useful for understanding American constitutional history to conceptualize constitutional crises as coming in two varieties. A crisis of constitutional operation arises when important political disputes cannot be resolved within the existing constitutional framework. Whether through a change in circumstances or through a flaw in constitutional design, political actors may find themselves unable to resolve political disagreements within the confines of established constitutional procedures. A crisis of constitutional fidelity arises when important political actors are no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions. Part or all of the constitution may simply be ignored as political actors seek to resolve their political disagreements and advance their goals in ways that are at odds with the putative constitutional arrangement. And, of course, a crisis of operation may well lead to a crisis of fidelity.

I have reluctantly come to the conclusion that a third category might be needed to encompass the range of constitutional crises that have emerged. A crisis of constitutional bad faith may occur when political actors refrain from repudiating the inherited constitutional system but nonetheless subvert it by only giving lip service to constitutional requirements.

I have come around to this possibility only reluctantly, not because bad faith does not exist but because it is too hard to recognize. My initial concern with this topic was to try to wrest the concept of a constitutional crisis from common political parlance and recover an analytical tool that could help us make sense of constitutional systems and how they operate. A central goal was to separate out the small kernel of what can be usefully understood to be genuine constitutional crises from the large set of ordinary constitutional politics that partisans might have interest in characterizing as crises. The tool would not be very useful if we cannot recognize constitutional crises, even in hindsight, or we cannot reach any agreement on when they occur. As a piece of political rhetoric it had already degenerated into a particularly emphatic way of attacking political enemies. Like judicial activism, constitutional crisis might become inherently subjective and exist only in the eye of the beholder, a way of describing political actions that one’s opponents engage in.

Of course, accusations of bad faith generally have also become quite common. At least in the political context this is perhaps unsurprising given increasing polarization and political separation. As political and social groups become more homogeneous and the distance between the political camps grows, it becomes all the harder to understand, let alone empathize with, those with whom we disagree. Political actions by the other side seem less explicable as simple good faith disagreements about political ends and means. It becomes easier to imagine that our political foes act in bad faith than that they just have reasonable disagreements with us.

The challenge of distinguishing bad faith behavior from good faith disagreement is at least as serious in the constitutional context. When our shared understandings are extensive and our disagreements are small, it is straightforward to imagine that we are all playing the same game under the same rules. Our disagreements might be important and meaningful, but they are understandable and at least theoretically possible to overcome. As our common bonds fray, however, those disagreements begin to seem more sinister. One starts to suspect that one’s antagonist is not even trying to play the same game anymore. It is hard to credit their constitutional arguments as sincere and worth taking seriously. The disagreements are so deep that it is hard to believe that the other side is even being sincere in saying that they too are just trying to understand, live within, and elaborate on our common constitutional inheritance. From the perspective of conservative jurists, the New Dealers and their scholarly allies were not just mistaken but no longer even trying. Their success meant the Constitution was “gone”; it has been “swept away.” From the perspective of conservative jurists, the Warren Court and its scholarly apologists were not just wrong but were lawless, unbound by and unfaithful to constitutional strictures. Of course the reformers did not take such complaints seriously. After all they saw themselves as acting in good faith (I think). They were perhaps creative, they would say, but they were still playing the same old game. They were still using the familiar constitutional grammar even if they were using it to reach new conclusions. Accusations of bad faith were just the whining of the political losers and could be dismissed as such. Trying to create a conceptual category of bad faith constitutionalism risks degenerating into endless partisan bickering that neither clarifies nor helps.

Despite such concerns, the possibility of a crisis of bad faith constitutionalism seems all too real and so perhaps cannot be ignored if we want to adequately understand the workings of constitutional politics. Functionally it does similar work to constitutional infidelity. It effectively excises components of the constitutional system and renders them inoperative, and does so without any legitimate or recognizable process of constitutional amendment or change. Crises of constitutional infidelity have been exceedingly rare in American history, or least so I have argued. Part of what makes infidelity rare is that the United States has traditionally had a robust culture of constitutional veneration. No matter how dysfunctional the constitutional system might seem, the political costs of simply stepping outside of that system have been high. Elites and citizens alike have demanded that any viable political movement and would-be political leader declare their loyalty to the constitutional faith. In a political culture of constitutional veneration, the constitution cannot simply be suspended. There is no substantial constituency willing to back the play of a leader tempted to announce an explicit departure from the inherited constitutional order, and so successful political leaders refrain from making such announcements.

But what one cannot openly announce one might still be able deceitfully to do. Bad faith constitutionalism might be a viable alternative to faithless constitutionalism. One can comply with the constitutional forms while emptying them of their substance. One can claim adherence to the constitutional letter while subverting the constitutional spirit. The constitutional order has still broken down. Politics is no longer confined within and structured by the ostensible constitution. Political actors can still pledge allegiance to the old constitutional order without having to concede to the inconveniences of constitutionalism. Political will triumphs over constitutional judgment without acknowledging the achievement.

Perhaps bad faith constitutionalism is just how constitutional infidelity works in a culture of constitutional veneration. All the pressures that lead to constitutional infidelity still exist, but the infidelity dare not speak its name. But even if bad faith constitutionalism is theoretically a meaningful phenomenon, we might still not have much luck in identifying it. We might be able to see the speck in our brother’s eye but neglect the beam in our own. We might be able to recognize such a crisis if we observe it happening in other countries. We might even be able to recognize it in our own history, at least if those controversies are sufficiently detached from our own. Unfortunately, when the alleged bad faith crisis is entangled with our own contemporary controversies, we are unlikely to be able to achieve the kind of objectivity necessary to separate out the bad faith actions from the good faith, if intense, disagreements.

Despite such concerns, however, it might be necessary to recognize that the wolf of constitutional crisis sometimes comes dressed as a sheep. Descriptively and analytically, we would want to know what political actions initiate a departure from an established constitutional order. Normatively, we would want to know what political actions threaten a constitutional order that we want to sustain—or are necessary to leave behind a constitutional order that can no longer be justified.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and a Visiting Fellow at the Hoover Institution. You can contact him at kewhitt@princeton.edu.

Posted 9:30 AM by Guest Blogger [link]