Taking back the Constitution in an era of high polarization

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Mark Tushnet's Taking Back the Constitution is one of his very best books (and he has written a fair number of them.) Among the most remarkable things about the book is its ability to discuss complex theoretical and legal issues in an easy, relaxed style. The closest analogy I can think of is John Hart Ely's writing—and that is high praise indeed.

There is considerable agreement between Tushnet's arguments and the arguments I make in my own book on the cycles of constitutional time, which is out next month. That is not surprising. First, both Tushnet and I are working with the ideas of Yale political scientist Steven Skowronek about the cycle of political regimes in the United States. Tushnet has long been interested in regime theories-- his Harvard Foreword in 1999 offered a variation on these themes.

Second, both Tushnet and I think that the Reagan regime that has dominated American politics since the 1980s is on its last legs, and that the country is about to embark on something new. What that new thing is, however, is yet to be determined. That is why the book alternates between describing the constitutional commitments of an extended, Trumpist regime, and the possibility of a new progressive regime.

Third, both Tushnet and I also argue that how people feel about judicial review depends on where they are in the rise and fall of regimes. At the close of the Reagan regime, Republicans control the courts, so they are likely to be far more enamored of judicial power than progressives. Tushnet wants progressives to lean into this skepticism. He wants them to embrace an idea he has long been associated with—popular constitutionalism. This was the subject of Tushnet's 1999 book of a similar name, Taking the Constitution Away from the Courts.

Popular Constitutionalism 2.0

Twenty years later, we can see a subtle shift in how Tushnet uses the term "popular constitutionalism." In 1999, he offered a more direct frontal assault on judicial review. Today, he opposes popular constitutionalism to judicial supremacy. That leaves room for judicial review as long as it is not supreme. Tushnet's 2020 version of popular constitutionalism is not about taking the Constitution away from the courts so much as sidestepping them, or asserting popular responsibility for the Constitution. In many ways, his vision of popular constitutionalism has grown closer to Robert Post's and Reva Siegel's democratic constitutionalism, which was developed in the same period as his popular constitutionalism.

Tushnet argues that popular constitutionalism can take many different forms, including pressing for state constitutional interpretations, federal constitutional amendment, a new federal constitutional convention called by the states, and popular mobilization for adopting of new constitutional norms and practices by legal officials. He embraces proposals for reshaping the courts like court packing, which retain and even depend on judicial review. At one point he argues that if the public likes judicial review and wants to keep it, that decision is consistent with popular constitutionalism, too. It may seem as if Tushnet is trying to have it both ways. But what he is actually doing is calling on the public to take responsibility for the Constitution, and the kind of constitutional norms they live under. This basic principle of taking responsibility can be cashed out in many different ways, in many different institutional forms. What Tushnet cares about is less which form of popular constitutionalism wins out than that people make the effort, that they "tak[e] back the Constitution."

At one point in the book, Tushnet says he likes my idea that formerly "off the wall" ideas may become "on the wall," but he doesn't understand the metaphor I'm invoking, so he prefers the term "on the table." But his own book shows what the underlying metaphor is! When it comes to popular constitutionalism, Tushnet is willing to throw things against the wall and see what sticks to it. Things that stick (because of social mobilization and social influence) are "on the wall." In fact, over time, they may become part of the wall, like a particularly bad food stain, and it may take considerable work to get them off the wall again.

Polarization and regime change

Tushnet is well aware that if the left gets to exercise popular constitutionalism, so does the right, including the Trumpist version of the right.  Trumpist popular constitutionalism would have very different values from left popular constitutionalism. As a person of the left, Tushnet has written this book in the hope that the Trumpism will lose. That is why its second half emphasizes progressive popular constitutionalism.

This brings me to a set of issues where the analysis in his book and the analysis in mine differ.

My book argues that there are three different cycles at work in American constitutional politics. The first is the rise and fall of regimes, which forms the basis of both of our books. But I also focus on how polarization has increased, decreased, and then increased again over American history, and what this means for politics and the Constitution. I have also argued that American history has featured episodes of "constitutional rot," when democratic and republican norms decay or are cast aside, followed by periods of constitutional renewal. The three episodes of rot occur in the 1850s, the First Gilded Age, and today, in our Second Gilded Age.

Throughout the book Tushnet recognizes that American politics is polarized, but he does not really integrate that fact into his theory of regime change. For me, it's really important whether regime change occurs in a period of intense polarization (as in 1860) or in a period of relatively depolarized politics (as in 1932 and 1980). If politics is depolarized, the transition between regimes goes relatively smoothly. To be sure, there is great anxiety about the country's direction, but as soon as the new regime is in place, that anxiety is mostly forgotten, even as partisan disagreements persist. That is because in a depolarized politics, compromises are still possible and members of both parties still can win some victories.

But when regimes change in a highly polarized politics, things are quite different. The party losing dominance knows that it disagrees with the other party on virtually everything. Grounds for compromise are fewer, so if the other party successfully begins a new regime, the older dominant party fears that it will lose everything. As a result, it fights as hard as it can to stop the transition from happening. Desperate times call for desperate measures.

If this logic is correct, then the coming transition is going to be very hard indeed, much harder than 1932 or 1980. The Trumpist party will not go gentle into that good night. We can only hope that there will not be actually constitutional failure, as there was in 1860. But the transition will not be a smooth ride.

The Trumpist party-- the faction of the Republican Party that remains loyal to Trump's brand of demagogic politics, if not Trump himself-- will continue to remain a force in American politics for some time to come. A Democratic victory in 2020 will not necessarily usher in an era of political peace or a return to normalcy. Even if that happens, it will take a while, and Trumpism or other forms of demagogic conservative populism may still make a comeback. We are not out of the woods yet. Not even close.

Constitutional hardball and constitutional rot

As the regime decays during a period of deep polarization, and income inequality rises, the country may also experience constitutional rot. My focus on constitutional rot marks another difference between Tushnet's account of regime change and mine. For me, the decay of constitutional norms that accompanies constitutional rot is worrisome. For Tushnet, not so much.

One of the most theoretically important chapters of Tushnet's new book is his discussion of constitutional hardball, a term Tushnet coined that is now in common use.

This chapter is important and bears careful attention. Tushnet argues that people worry about constitutional hardball much more than they should. He associates constitutional hardball with regime change. As its power weakens near the end of a regime, the dominant party may use constitutional hardball to stay in power. Or members of the newly dominant party may use constitutional hardball to consolidate their power.

For these reasons, Tushnet is mostly sanguine about the use of constitutional hardball. You've got to break a few eggs to make an omelet. Moreover, the point of constitutional hardball is that a party's hardball is technically legal but its propriety is contested. Once a new regime has stabilized, things tend to settle on a new normal.

Put another way, Tushnet is more forgiving of constitutional hardball because he sees it as a sign of transitional politics. That is why he argues that the liberals and progressives should not be afraid of adopting hardball tactics (for example, court packing) in order to establish a new progressive regime. Why should Republicans have all the fun?

This also explains our different views on court packing. I am wary of court packing because I think it exacerbates our existing polarization. In my book I propose reforms-- like term limits-- that are designed to lower the stakes of judicial politics. Because Tushnet does not see either polarization or rot as central problems of our era, he disagrees. He notes that the parties may continue to engage in constitutional hardball for a time, but eventually things settle down. One party establishes a new normal, and the other party acquiesces.

Tushnet's account of constitutional hardball is an optimistic rejoinder to my views about constitutional rot. He argues that what I see as threats to republican government are actually the ways that a new regime establishes itself. Constitutional hardball is not necessarily the enemy of democracy; it may be the corrective that a democracy needs every now and then. For that reason, Democrats should not fear using constitutional hardball if it is necessary to establish a political regime that will restore and protect American constitutional values (at least as Democrats understand them).

There is something deeply seductive about this account of constitutional hardball-- as a problem that is not really a problem, and as a threat to democracy that is not really a threat. I am also encouraged by Tushnet's optimism (I am a professional optimist myself). But I fear that stormy times lie ahead.