Collaborative and Abusive Constitutionalism

Guest Blogger

For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023).

Stephen Gardbaum

Aileen Kavanagh’s The Collaborative Constitution is a rich and wise book.  It has an adult in the room quality by comparison with the quarrelling pro-legislature and pro-courts camps, which have distracted us while the executive has quietly and nearly invisibly extended its domination almost everywhere.  With its emphasis on unwritten norms of cooperation, collaboration, and self-restraint among the three branches as perhaps the central feature of well-functioning constitutional government, the book provides a major and important corrective to both the Madisonian model of the separation of powers and the aspirations of institutional designers.

The timing of the book is both good and bad.  Good because in the current context of highly polarized, adversarial, and conflictual democratic politics around the world, it serves as a valuable reminder of a key ideal that is becoming increasingly rare in practice.  In Kavanagh’s words, one of the book’s aims is to “call us back from the brink.”[1]  The timing is bad because it may already be too late.  In many democracies, relevant actors occupying, or seeking to occupy, the branches of government (as well as large swathes of electorates supporting them) do not appear to want to be called back or amenable to such reasonable and mature constitutional discourse as the book prescribes.  In these contexts, the very term “collaboration” may be reacquiring its negative connotation of working with the enemy.                 

The book is framed as focused on protecting rights.  It begins as an intervention in the longstanding debates about the respective roles of courts and legislatures in this task, rejecting the binary in which one or the other has the “final word” on rights issues in favor of a division of labor and complementary roles of all three branches.  Here, the UK’s Human Rights Act 1998 serves as the central case study for the type of fine-grained, contextual description and analysis of practice that Kavanagh calls for methodologically, in combination with the more abstract  consideration of constitutional and political theory.  And yet, it quickly becomes obvious that this is only the book’s entry point and what it aims to provide is a more general account than a collaborative approach to rights protection.  For its analysis does not at all seem limited to the rights context and in the central chapters of the book, especially chapter three, this context plays little role in the argument for collaboration.[2] 

But what precisely the central object of analysis is, what the more general account is an account of and how much more general, remains a little elusive to my mind.  At times, it appears to be a reconceptualization of the separation of powers, offering an alternative to the Madisonian tradition in which the centrality of institutional design and rivalry is replaced by unwritten norms and partnership.  But at other times, the object seems more general still, offering an account not only of this key component of constitutional democracy but of the whole thing, or even of constitutionalism per se.      

 As mentioned, one of the central themes of the book is skepticism about the value of constitutional and institutional design, and an emphasis on the importance of norms, not forms.   One question that arises is how strongly to understand this claim.  A relatively strong version would be that the key difference among more and less successful constitutional systems and democracies is simply whether, and to what extent, they adhere to the norms of collaborative constitutionalism, regardless of all other differences, including various institutional ones.  But if well-functioning constitutional democracies have the same basic and essential formula everywhere -- the existence of three branches of government with some real degree of autonomy plus adherence to the norms of collaboration among them, with anything else relatively unimportant and epiphenomenal -- then for an analysis that emphasizes the need for fine-grained contextual analysis, this seems somewhat oblivious to context. 

Moreover, are there no institutional implications of the analysis beyond this bare bones formula, variations that make adherence to the norms more likely?  For example, is judicial review of constitutional amendments, or life tenure for judges, helpful or harmful?  As is well-known, institutional variation helps to create different basic structures of democratic politics, with, for example, the choice of voting system and whether to hold separate elections for the executive and legislature resulting in different priorities and permutations among the standard values of democratic governance: stable, effective, accountable, and representative government.  Are these variations essentially cosmetic only?  How do these values interact with the norms of interbranch collaboration and partnership?              

Although one of the book’s great merits is to bring a heavy dose of real-world practice to bear on constitutional discourse, there are two areas of contemporary practice that pose questions for its account.  The first is, again, the continuing growth and appeal of authoritarian populism and democratic backsliding around the world.  As both cause and effect of our highly polarized politics and by distinctively employing the exclusionary we-they, friend-foe mode of discourse, adherents of this style of politics occupying state institutions (including, in some places, courts) are of course increasingly deaf to the claims of comity and self-restraint. 

Moreover, Kavanaugh’s account assumes the relative independence of the three branches and focuses on how they should conduct themselves, in collaborative versus conflictual ways.  But this is a big assumption currently, when undermining the independence of all other institutions, including courts and legislatures, has been the signature move of backsliding executives.  In this light, perhaps the priority is protecting and maintaining the independence of the branches before prescribing how they should exercise it. 

Kavanagh does, at various points in the book, note the challenge to her account posed by such contemporary forces, deny that she is writing a eulogy to well-functioning constitutional democracies, and respond by arguing that this is why a reminder of the collaborative ideal is so urgent as a call to step back from the brink.  But there is not much beyond repeating the appeal to reasonableness.  What would be helpful here is an analysis of the preconditions for such an appeal to be successful.  Or guidance on how to develop collaborative norms where they are either lacking in the first place or have been deeply eroded.        

The second area of contemporary practice is the important role of political parties in the concrete operation of the separation of powers.  Like the vast majority of scholarship on the topic, the book focuses almost exclusively on the branches of government and largely overlooks the centrality of political parties to how they function in practice.  To be fair, there are a couple of pages on the role of the opposition party, although they are mostly about how this role is itself framed and shaped by the norms of comity, collaboration, and self-restraint,[3] and political parties are mentioned in the conclusion as among several other constitutional actors meriting future research.  But the practical centrality of political parties to almost all of the values in the “multi-value ideal”[4] of the separation of powers arguably demands greater attention. 

As is well-known, political parties concentrate or disperse political power, in large part by unifying or dividing branches of government.  By aggregating different interests and perspectives into coherent public policy bundles on which to run for, and implement in, public office, parties facilitate effective and responsive policymaking in government.  Apart from the important role of the opposition, the other major check on the executive and source of its political accountability, especially in parliamentary systems, is also effectively party-based, rather than branch-based.  This is the accountability of the governing party leaders who fill high executive offices to its backbenchers and (other) party members.  Frequently, it is the threat or reality of loss of confidence by backbench and rank-and-file governing party members, rather than by the legislature as a whole, that constrains the party leaders in their executive capacity or (less frequently) results in their loss of power and branch office.  And specifically with respect to norms of inter-branch collaboration and cooperation, political parties play a key role.  Because the executive and legislative branches are significantly occupied by members of the same political parties in all forms of government, the parties transcend the branches and so are capable of smoothing the relations between them.  In other words, political parties are superimposed on, and thereby can reduce (as well, to be sure, as increase), the purer, Madisonian conception of interbranch rivalry.      

Notwithstanding the questions and concerns raised above, The Collaborative Constitution is an elegant and deeply impressive contribution to constitutional law and theory.  It is sure to join the handful of other seminal works in the separation of powers pantheon.     

Stephen Gardbaum is the Stephen Yeazell Endowed Chair in Law at UCLA School of Law.  You can reach him by email at gardbaum@law.ucla.edu.