Balkinization: Two Views of Constitutional Change

Two Views of Constitutional Change

Andrew Coan

Critics who charge the Supreme Court with changing too much, too quickly raise a deep question: How should we understand the object of constitutional change? Is constitutional law simply a collection of discrete rules of varying significance and breadth? Or is it better understood as a whole—more precisely, as the vector sum of political or ideological values embodied in the constitutional order?

If the former, the pace and magnitude of constitutional change are primarily a function of the number, significance, and breadth of the constitutional rules changed over a particular span of time, without regard to their ideological valence. On this view, sweeping constitutional change might involve a sharp shift to the right, a sharp shift to the left, or a sharp shift in many rules of mixed ideological valence. But if constitutional law is a vector sum of political values, the last of these three is very different from the first two. On this view, a sharp to the right or the left qualifies as sweeping constitutional change. But a sharp shift of mixed—we might say offsetting—changes is, in an important sense, no change at all. Many rules can change without changing the vector sum of values embodied in the constitutional order as a whole.

To make the point more concrete, we can compare the current Supreme Court with its two immediate predecessors—the Rehnquist and Burger Courts (bracketing the earlier incarnations of the Roberts Court). In a valuable series of blog posts, Jonathan Adler contends that the current Court has overruled precedents and invalidated laws at lower annual rates than either the Rehnquist or Burger Court. Setting aside questions of significance and breadth, his analysis calls into question the conventional wisdom among liberal and progressive observers (and some enthusiastic conservatives) that we are living in a period of revolutionary constitutional change.

But this is true only if one views constitutional law as a collection of discrete rules. If one instead views it as the vector sum of political values, the conventional wisdom makes more sense. The Rehnquist and Burger Courts may have overruled more precedents and invalidated more laws—in absolute terms and as a percentage of their caseloads—but, as Adler acknowledges, their decisions were significantly more ideologically balanced. By comparison, the decisions of the Supreme Court since 2017, and especially since 2020, represent a sharp rightward shift in the vector sum of political values, with a promise of much more to come.

We need not choose between these two views of constitutional change. Both are plausible, and they are best understood as describing different forms that sweeping constitutional change might take. In this sense, they are complements, not competitors. It is worth noting that the vector-sum view takes account of ideology, but it does not define sweeping constitutional change in overtly ideological terms. To extend the mathematical metaphor, what matters is the absolute value of the change to the vector sum of values, not the ideological sign of that change.

Whether change of either form is too much, too quickly is another question, which I explore in this new paper.

Posted 8:00 AM by Andrew Coan [link]