Thursday, July 08, 2021

American Constitutionalism as Political Development

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Daphna Renan

Deeply researched and beautifully written, Phantoms of a Beleaguered Republic takes a close look at the Trump presidency and reveals “a polity driven to wit’s end by two wildly different conceptions” of what good government entails (p. 11). The Deep State and the Unitary Executive “are both distillations of ambition and fear, larger-than-life projections onto issues and arrangements that are all too real” (p. 193). As the authors recognize, either phantom—an executive branch that privileges depth or one that trains on unitary authority—could plausibly claim a foothold in the U.S. Constitution (p. 201). But it is the Unitary Executive that has assumed the “lawyer’s brief” (p. 9, 29), unfolding, in the hands of lawyers and jurists, as an argument about immutable constitutional commitments anchored in legal text and rooted in some imagined original consensus. That legalistic rhetoric has obscured and distracted from the central normative question that the twin phantoms pose—in the authors’ crisp articulation, “whether we value what depth has to offer” (p. 195-198).

In this sense, Phantoms of a Beleaguered Republic is a meditation on the perils of structural constitutional legalism as an instrument of American state-building. Indeed, the authors lament a “doubling down on the Constitution” that has made “[o]ur thinking about separation and checks . . . correspondingly narrow, rigid, and reactive” (p. 202). And they yearn for an earlier time when the Constitution got what it deserved: “a wink and a nod” (p. 201).

What I want to suggest, however, is that the problem is less American constitutionalism than the legalism that today passes for it. When it comes to the design of the state, the question need not be whether extra-constitutional measures are politically feasible. It can be a different way to understand the Constitution itself. In exposing the pathologies that our court-centric, formalist, and purportedly fixed Constitution has fueled, Phantoms of a Beleaguered Republic invites, implicitly at least, a more developmental approach to constitutional interpretation itself.

What might a developmental approach to constitutional interpretation entail? As Stephen Skowronek has argued in earlier work (co-authored with Karen Orren), “the insistence on treating every state of affairs as in transition, a state as it were, in the process of becoming, sets [American Political Development’s] understanding of politics apart” (The Search for American Political Development, at p. 19). This idea of a state in the process of becoming—or what I have elsewhere discussed as the provisionality of our constitutional order—is at the crux of a developmental approach to constitutional interpretation as well. In centering provisionality over fixity, a developmental approach to constitutional interpretation suggests a different role for history, a different goal for constitutionalism, and a different set of sources to look to in comprising it.

A developmental approach to interpretation rejects the premise that careful historiography of the Founding era can uncover a clear, static meaning to the criteria for state-building expressed in Article II. Rather, it understands the central role of history in constitutional inquiry to be destabilizing: to illuminate the contingency of current governing arrangements, or the ways in which executive power has been constructed and reconstructed over time. On this understanding of the Constitution, the role of history is not to claim a winner between unitariness and depth (on originalist or other grounds).  Rather, it is to elucidate how depth and unitariness have been partially reinforced, partially rejected in different configurations and in response to different political contingencies over time.

A developmental approach thus suggests a different goal for constitutional interpretation as well. It “imagine[s] the Constitution,” as Louis Michael Seidman has argued, “as a site for contestation” that reinforces, even in our disagreements, “a common framework” (On Constitutional Disobedience, at 138). The constitutional vocabulary of checks and balances, of distinct and articulated government functions, of democratic accountability, of effective and non-arbitrary governance should serve to structure our contestations about the desirable designs of the state. Those constitutional ideals should help us to unpack the question “whether [and why] we value what depth has to offer.” But the goal of constitutional interpretation is not to provide definitive answers—let alone one-size-fits-all and immutable answers—for the structure of American constitutional government.

Finally, a developmental approach privileges different kinds of materials in constituting our constitutional structure. As Niko Bowie and I argue in a forthcoming article, it uplifts different kinds of deciders. Rather than privilege judicial decrees, we argue that constitutional meaning emerges from statutes. This is not because statutes reveal one particular understanding of the Constitution to be right, but precisely because they instantiate provisional understandings of the presidency over time—as the result of representation, negotiation, and statecraft. Indeed, as Phantoms of a Beleaguered Republic reveals, statutes have provided an important foundation for depth—in its various guises of knowledge, staffing, appointments, and oversight (pp. 59-193). A developmental approach to constitutional interpretation asks not whether those statutes conform with any one (or five) judge’s understanding of a first-best approximation of “vesting” or “executive power” under Article II. Instead, a developmental approach would look to those statutes as constituting durable, though not unchangeable, accounts of executive authority and its complex institutional layers.

A developmental approach to constitutional interpretation thus embraces the role of politics—and of the political process—in comprising constitutional meaning. In so doing, it permits the ideals of political equality and republican liberty (involving, as Philip Pettit defines it, “the permanent possibility of contesting what government decides”) to infuse our ongoing constitutional commitments. If constitutional text, structure, and history does not offer us one “right” way to read the Constitution—if there is reasonable disagreement all the way down—then statutes reflect the best mechanism we have to manage the conflicting urges of unitariness and depth: American representative democracy.

Phantoms of a Beleaguered Republic ultimately turns to “republican remedies” to manage these dual aspirations for executive governance. The book invaluably orients reform thinking to instruments of collective responsibility and collaborative controls on administration. But to the extent the book construes republican government as built on “constitutional heresies” (p. 202), it accepts an account of the Constitution that is unworthy of republican values. Republican remedies should not be disentangled from the Constitution. They must reform the project of constitutional interpretation itself.    

Daphna Renan is the Peter B. Munroe and Mary J. Munroe Professor of Law at Harvard Law School. You can reach her by e-mail at drenan at 

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