Wednesday, January 18, 2023

The Constitution is in Trouble

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Cristina Rodríguez
I discovered Balkinization right around the time I learned what a “blog” was in the first place—twenty years ago as a law clerk, when Jack Balkin had the flash of genius to create an online community of scholars across universities and disciplines, with a platform whose potential he was among the first to grasp. His generous offering of the blog for scholars to present to a large audience new work or thoughts on an issue of the moment has been a signal contribution to the academy and legal culture. In a time of uncertainty about the future of our political order (more on that below), forums like this one provide reassurance that energetic and powerful minds are committed to putting current constitutional debates in larger perspective and even connecting them to the definition and pursuit of the public good.
But the U.S. constitutional order is in trouble, which makes a symposium about the present and future of constitutional theory an interesting undertaking. Why persist in efforts to identify the correct or best theory for interpreting or construing the Constitution (assuming this is a reasonable definition of constitutional theory) when those theories have become so multiple and when so many of the institutions created by the Constitution do not seem to be working well to channel democratic politics and realize popular will? Or perhaps more importantly, why care about constitutional theory when public trust in our constitutional institutions has eroded and the political culture that sustains them is riven, alienating, and polarized? I doubt I will be the only contributor to this symposium to emphasize how poorly our constitutional order is faring on this front, particularly if we regard self-government as a collective endeavor that requires bipartisanship and fellow feeling (pick your leading contender for threat, dysfunction, and decline). After all, the founder of this blog and one of its stalwart contributors have led the way in charting the democratic limitations of our institutions and the sordid decline of our political culture. 

Of what relevance is constitutional theory in this context—if the threats to a working system are less from whatever theory of interpretation judges, scholars, or others adopt than from the ability of institutions to function in a way that makes the people invested in their future? Above all, a constitution and the theories that support it should coalesce to create a government whose structures work well, in the sense that they should together form a system that enables democracy, self-government, and human flourishing. Because courts can and do thwart democratic government’s ability to function, the theories of interpretation they deploy, and that other actors buy into, must be contributing in some way to the dysfunction, though perhaps only as forms of argument or vocabularies for rival factions. Indeed, the pervasive sense of distrust and decline makes debates about judicial review appear to be mostly a function of whose ox is being gored, especially if we consider these debates from 30,000 feet where it can seem that the strongest critics of judicial review are those whose political power is on the wane.
But whatever its definition or effect, the future of constitutional theory should revolve around institutional reform and nurturing a more constructive politics within which judicial review serves not as a focal point but as a part. I myself spent the better part of 2021 engaged in a project (with some of the contributors to this blog) that I would roughly describe as in service of these goals—promoting constitutional workability defined by functional institutions that appropriately channel democratic forces. The Presidential Commission on the Supreme Court was basically an endeavor to review the health of one of our constitutional institutions and to define what would be at stake in any attempt to reform its structure and operations. At least two of the lessons from this experience might be relevant to the bigger picture of the future of constitutional government.
First, the reforms under consideration would not be enough and may be of secondary importance to the larger objective of democratic workability. For one thing, the utility of Supreme Court reform to advancing democratic politics and government is limited, including for many reasons having to do with implementation and likely effects laid out in the Commission’s Report. More crucially, the threats we face today to democratic government are more fundamental than who controls the balance of power in the judiciary and whether that power is being exercised wisely. Even though some leading proposals would promote better government (term limits being my own favored and widely touted candidate on this front), Court reform may not be the most urgent institutional or political cause. More pressing alternatives might include an agenda of renewal for Congress, an invigoration of ground-level democratic politics, and the return of a system of true partisan competition that can still produce forms of consensus government. Court reform in the absence of these changes would be anemic and arguably impossible.
Second, the endeavor was instructive not just because it produced blueprints and guidelines for a future when Court reform might be realistically achievable, but also because it highlighted the extreme difficulty associated with institutional reform in the shadow of polarized politics. Prospects for reform can be challenging (though not impossible) to separate from political or ideological dynamics, or at least from unrealized, divergent aspirations about what a constitutional order should enable the people to accomplish in substance. The undertaking was part politics, part good government, and part powerlessness. The debate on and outside the Commission toggled between considering whether the Court was in crisis because of certain jurisprudential moves enabled by the concentration of power in the Court in general and a conservative political bloc in particular, and debates over whether the Court could be made better as an institution within a larger system of government premised simultaneously on democracy and the rule of law, regardless of the outcomes it produced. Right now, disagreement over the former prevents the latter, but the latter is essential for democratic societies to survive and thus should remain within our sights, not just or even mainly for the courts, but for the constitutional system and its students and players writ large.  
 Cristina Rodríguez is Leighton Homer Surbeck Professor of Law at Yale Law School. You can reach her by e-mail at

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