Saturday, February 27, 2016

The Scalia Vacancy and Informal Constitutional Change

Stephen Griffin

The 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, American Constitutionalism) 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.

My 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.

Now 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.

Well, 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?”

To 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.

If 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.

It 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.

I certainly 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.

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