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