an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Scalia Vacancy and Informal Constitutional Change
controversy over how to fill Justice Scalia’s seat illustrates the uncertainty
over the place of informal practices within American constitutionalism. This is a topic I’ve addressed in a recent
paper. In this post, I’ll use the
approach I present in that paper and elsewhere (especially my 1996 book, AmericanConstitutionalism) to try to advance the discussion. I stress that this is a “theory” post not
meant to advocate a view on whether a Supreme Court nomination that could shift
the balance of the Court should be allowed to go forward in an election year.
basic intuition is that constitutions, like the American Constitution, meant to
operate as legally effective documents (as opposed to aspirational or precatory
declarations) are hampered by their necessarily self-enforcing nature. Yet the self-enforcement problem can be
overcome through a process of institutionalization or state-building. So to understand what the Constitution means
or comes to at a given moment requires exploring how it has been operationalized
within a particular historical context.
Further, to the extent lawyers and judges are involved in the process of
implementing the Constitution, they do this through “legalization” or
“judicialization,” understanding the Constitution by making analogies to
documents familiar to them such as statutes and contracts.
another example of legalization is treating instances of constitutional
interpretation and constitutional controversies in the legislative and
executive branches as if they were “precedents” – like judicial
opinions in concrete cases. I think this
is largely a false trail for analysis, unless it is shown that these instances
were themselves institutionalized or resulted in state-building, the meaningful
alteration of the structures in which political action takes place.
that’s a bit abstract, but in that light let’s consider Senate Biden’s 1992
statement, recently highlighted on this blog.
Or past statements of a similar character by Senators McConnell and Grassley. Are any of these statements “precedents” or evidence
of constitutional “conventions?”
put it another way, did they change the way we should understand what the
Constitution requires in the present? Answering
this question involves addressing the problem of informal constitutional change,
the problem I discuss in my article. To
put it mildly, there is no one approach to understanding informal change or,
for that matter, American constitutional change in general. This is partly due to having a long-lived
document and the lack of formal amendment, but the real root of the difficulty
is the Constitution’s accepted status as supreme law. This status is not replicated in the British
system, which is why I am skeptical of the analytical potential of regarding
Biden’s statement and others as putative conventions.
you think that informal rules and practices can have a strong role in judicial
nominations, I urge you to read this informed account by Miguel Estrada and
Benjamin Wittes. Judicial nominations
have an obvious constitutional dimension.
But the circumstances in which they take place are best
understood by building an account of our contemporary constitutional order,
something that would clearly involve exploring the implications of our
polarized politics. It is perhaps unfortunate that we
can’t by simple force of analytical will impose structures like conventions
over that order. In saying this, I’m not
making the point that politics always matters to key constitutional processes
like filling Supreme Court vacancies.
I’m rather saying that what really matters most is the powers and
government capacities created (or not) by the supreme text. Put another way, if the text doesn’t enable
us to stop “extreme” moves like the one just made by Senate Republicans on the
Judiciary Committee (and it doesn’t even address the existence of political
parties!), then it is unlikely we could do so by inventing a
tradition-convention that is not in the text.
This doesn’t show the idea of constitutional conventions is wrong, just
unhelpful in a system based on constitutional supremacy.
is said that on the British understanding, constitutional conventions are about
proper conduct. They are matters of
political morality and are not legally binding.
But the critical point is not so much whether conventions are best
conceptualized as “legal” or not, but understanding the reality that in Great
Britain they are (presumably) considered to be relevant, and immediately so, by key constitutional actors. They would be therefore properly be
considered part of the rule of recognition for the British constitutional
system. Now maybe this works in a
country with a more unified and homogeneous political and legal elite, but not
in the US. Here constitutional supremacy
means that any assertion of a precedent or convention can be trumped by the
text. In fact, they can be trumped by
the mere silence of the text.
wouldn’t rule out the constitutional relevance of informal rules or
practices. Even under my approach, the
filibuster and, for example, its 2013 alteration by then-Senate Majority Leader Harry Reid
count as informal changes to our constitutional order. This is because the filibuster is a rule of
Senate – in other words, it might have started as a “practice,” but it became
institutionalized and so difficult to change.
Aspects of our system like the filibuster are indeed parts of our
constitutional order. And we may notice
that like other aspects of that order, they are quite difficult to change
(though obviously not impossible). That is the
best way to understand informal constitutional change – to be part of the constitutional
order, in other words, practices like the filibuster had to become legally
enforceable, at least in a sense, and not merely matters of habitual conduct or an appealing common morality. They had to become like
the Constitution itself and take on a law like aspect. Thus to me, treating them as conventions
misses the distinctive character of American constitutionalism. It also misses that politics has a nasty way
of using the text to suddenly override practices or conventions that were never institutionalized like the filibuster.
As Estrada and Wittes point out, this is what has happened to the
practices or conventions everyone thought were governing the nomination
process. They have gone by the board
because they could be easily dispensed with in a pinch – the text didn’t
mandate them and they were never institutionalized.