For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023).
Stephen Gardbaum
Aileen Kavanagh’s The Collaborative Constitution is a rich and wise book. It has an adult in the room quality by comparison with the quarrelling pro-legislature and pro-courts camps, which have distracted us while the executive has quietly and nearly invisibly extended its domination almost everywhere. With its emphasis on unwritten norms of cooperation, collaboration, and self-restraint among the three branches as perhaps the central feature of well-functioning constitutional government, the book provides a major and important corrective to both the Madisonian model of the separation of powers and the aspirations of institutional designers.
The timing of the book is both good and
bad. Good because in the current context
of highly polarized, adversarial, and conflictual democratic politics around
the world, it serves as a valuable reminder of a key ideal that is becoming
increasingly rare in practice. In
Kavanagh’s words, one of the book’s aims is to “call us back from the brink.”[1] The timing is bad because it may already be
too late. In many democracies, relevant
actors occupying, or seeking to occupy, the branches of government (as well as
large swathes of electorates supporting them) do not appear to want to be
called back or amenable to such reasonable and mature constitutional discourse
as the book prescribes. In these
contexts, the very term “collaboration” may be reacquiring its negative
connotation of working with the enemy.
The book is framed as focused on protecting
rights. It begins as an intervention in
the longstanding debates about the respective roles of courts and legislatures
in this task, rejecting the binary in which one or the other has the “final
word” on rights issues in favor of a division of labor and complementary roles
of all three branches. Here, the UK’s
Human Rights Act 1998 serves as the central case study for the type of fine-grained,
contextual description and analysis of practice that Kavanagh calls for methodologically,
in combination with the more abstract
consideration of constitutional and political theory. And yet, it quickly becomes obvious that this
is only the book’s entry point and what it aims to provide is a more general
account than a collaborative approach to rights protection. For its analysis does not at all seem limited
to the rights context and in the central chapters of the book, especially
chapter three, this context plays little role in the argument for collaboration.[2]
But what precisely the central object of
analysis is, what the more general account is an account of and how much more
general, remains a little elusive to my mind.
At times, it appears to be a reconceptualization of the separation of
powers, offering an alternative to the Madisonian tradition in which the
centrality of institutional design and rivalry is replaced by unwritten norms
and partnership. But at other times, the
object seems more general still, offering an account not only of this key
component of constitutional democracy but of the whole thing, or even of
constitutionalism per se.
As
mentioned, one of the central themes of the book is skepticism about the value
of constitutional and institutional design, and an emphasis on the importance
of norms, not forms. One question that
arises is how strongly to understand this claim. A relatively strong version would be that the
key difference among more and less successful constitutional systems and
democracies is simply whether, and to what extent, they adhere to the norms of collaborative
constitutionalism, regardless of all other differences, including various institutional
ones. But if well-functioning constitutional
democracies have the same basic and essential formula everywhere -- the
existence of three branches of government with some real degree of autonomy
plus adherence to the norms of collaboration among them, with anything else relatively
unimportant and epiphenomenal -- then for an analysis that emphasizes the need
for fine-grained contextual analysis, this seems somewhat oblivious to
context.
Moreover, are there no institutional
implications of the analysis beyond this bare bones formula, variations that
make adherence to the norms more likely? For example, is judicial review of
constitutional amendments, or life tenure for judges, helpful or harmful? As is well-known, institutional variation helps
to create different basic structures of democratic politics, with, for example,
the choice of voting system and whether to hold separate elections for the
executive and legislature resulting in different priorities and permutations
among the standard values of democratic governance: stable, effective,
accountable, and representative government.
Are these variations essentially cosmetic only? How do these values interact with the norms
of interbranch collaboration and partnership?
Although one of the book’s great merits is to
bring a heavy dose of real-world practice to bear on constitutional discourse,
there are two areas of contemporary practice that pose questions for its
account. The first is, again, the
continuing growth and appeal of authoritarian populism and democratic
backsliding around the world. As both
cause and effect of our highly polarized politics and by distinctively employing
the exclusionary we-they, friend-foe mode of discourse, adherents of this style
of politics occupying state institutions (including, in some places, courts) are
of course increasingly deaf to the claims of comity and self-restraint.
Moreover, Kavanaugh’s account assumes the
relative independence of the three branches and focuses on how they should
conduct themselves, in collaborative versus conflictual ways. But this is a big assumption currently, when
undermining the independence of all other institutions, including courts and
legislatures, has been the signature move of backsliding executives. In this light, perhaps the priority is
protecting and maintaining the independence of the branches before prescribing
how they should exercise it.
Kavanagh does, at various points in the book,
note the challenge to her account posed by such contemporary forces, deny that
she is writing a eulogy to well-functioning constitutional democracies, and
respond by arguing that this is why a reminder of the collaborative ideal is so
urgent as a call to step back from the brink.
But there is not much beyond repeating the appeal to reasonableness. What would be helpful here is an analysis of
the preconditions for such an appeal to be successful. Or guidance on how to develop collaborative
norms where they are either lacking in the first place or have been deeply
eroded.
The second area of contemporary practice is
the important role of political parties in the concrete operation of the separation
of powers. Like the vast majority of scholarship
on the topic, the book focuses almost exclusively on the branches of government
and largely overlooks the centrality of political parties to how they function
in practice. To be fair, there are a
couple of pages on the role of the opposition party, although they are mostly
about how this role is itself framed and shaped by the norms of comity,
collaboration, and self-restraint,[3] and
political parties are mentioned in the conclusion as among several other
constitutional actors meriting future research.
But the practical centrality of political parties to almost all of the
values in the “multi-value ideal”[4] of
the separation of powers arguably demands greater attention.
As is well-known, political parties
concentrate or disperse political power, in large part by unifying or dividing branches
of government. By aggregating different
interests and perspectives into coherent public policy bundles on which to run
for, and implement in, public office, parties facilitate effective and
responsive policymaking in government.
Apart from the important role of the opposition, the other major check
on the executive and source of its political accountability, especially in
parliamentary systems, is also effectively party-based, rather than
branch-based. This is the accountability
of the governing party leaders who fill high executive offices to its
backbenchers and (other) party members.
Frequently, it is the threat or reality of loss of confidence by
backbench and rank-and-file governing party members, rather than by the
legislature as a whole, that constrains the party leaders in their executive
capacity or (less frequently) results in their loss of power and branch
office. And specifically with respect to
norms of inter-branch collaboration and cooperation, political parties play a key
role. Because the executive and
legislative branches are significantly occupied by members of the same
political parties in all forms of government, the parties transcend the
branches and so are capable of smoothing the relations between them. In other words, political parties are
superimposed on, and thereby can reduce (as well, to be sure, as increase), the
purer, Madisonian conception of interbranch rivalry.
Notwithstanding the questions and concerns
raised above, The Collaborative Constitution is an elegant and deeply
impressive contribution to constitutional law and theory. It is sure to join the handful of other
seminal works in the separation of powers pantheon.
Stephen Gardbaum is the Stephen Yeazell Endowed Chair in Law at UCLA School of Law. You can reach him by email at gardbaum@law.ucla.edu.
[1] Aileen Kavanagh, The
Collaborative Constitution, 406 (2024).
[2] Chapter Three begins
as follows: “Underpinning all controversies surrounding the protection of
rights is a deeper question about the roles and relationships between the
branches of government.” Id., at
86.
[3] Id., at
113-115.
[4] Id. at 96.