Constitutional Collaboration and Constitutional Showdowns

Guest Blogger

For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023).

Mark Tushnet

            Aileen Kavanagh offers an extremely important alternative to the common way of organizing our thinking about constitutional review around the dichotomy “judicial” and “political” constitutionalism. We should see the political branches and the courts as collaborators in creating constitutional meaning, not as competitors one of whom must ultimately prevail.

Her analysis has two key components. The first is a distinction between the quotidian work of legislatures and courts and the moments of showdowns between them. Collaboration characterizes the former, conflict the latter. In their daily work our institutions collaborate to advance “the common goal of securing just government under the constitution” even as political actors disagree about the means of doing so.

Second, Kavanaugh insists that we take a realistic view of the actors themselves. Moving beyond the now well-accepted proposition that legislatures are a “they,” not an “it,” she asks us to look inside both the legislative and executive branches. When we do we see complex bureaucracies staffed in part by short-term careerists who are there for a while and then move on, long-term civil servants who build up expertise, and more. In the end, I suggest, Kavanaugh opens the way for us to construct an account of constitutional meaning that integrates the quotidian and the showdown.

Begin with the proposition that the government’s branches are committed to a project while disagreeing to some extent about how to pursue that project through constitutionally inflected policies. Stated at the highest level of generality that proposition is unassailable: who could disagree with the project of “securing just government under the constitution”? Move only a bit lower, though, and we might face problems. Consider these alternative projects: “Make Hungary great” and “Make Hungary great again.” Some constitutionally inflected policies might do both. That is the domain of the quotidian. Some, though, will do the former but not the latter. And, even more, some will make Hungary greater along one dimension while a competing policy might make it great again along another: one policy might implement a constitutional guarantee of decent levels of social support while another might provide somewhat lower levels (though still decent) while restoring some aspect of Hungary’s past greatness. These policies are the domain of the showdown.

More precisely: showdowns occur when the center of gravity in one institution favors one constitutional project while the center of gravity in another institution favors a different and to some degree incompatible project. Bojan Bugaric and I have offered one example—the newly elected government with what we call an ambitious reform agenda aimed at substantially transforming the existing constitutional order. And, notably, a constitutional showdown is an impediment to implementing such an agenda, not a feature of a collaboration aimed at promoting a common project. The line between the quotidian and the showdown is messy and probably not definable in advance or in the abstract. Some subjects of intense political controversy need not trigger showdowns. Conversely, what from the outside might seem modest (quotidian) changes in bureaucratic routines—constructing a census that will identify citizens’ religious affiliations, for example—might do so.

There is a second level of analysis. Under what circumstances will ordinary citizens and voters accept the collaborative outcomes worked out among the institutions? Here the distinction between the quotidian and the showdown helps, though in a somewhat different form.

We can expect that in the main institutional actors and citizens will agree that a policy issue implicating constitutional values is “ordinary” or quotidian, appropriately resolved through collaborative decision-making. Sometimes, though, the judgments of institutional actors and citizens will diverge, with the former seeing as routine an issue that the latter see as extraordinary. Examples might be border security or deficit financing to address an economic crisis. In these cases some ordinary citizens will see collaborative decision-making as selling out their interests. The problem then is one of misalignment between the approach taken by institutional actors and the approach favored by ordinary citizens.

I suggest one critical and one constructive approach to the problem of misalignment. We have a pejorative vocabulary to describe misalignment: the “deep state,” the “Yes minister” phenomenon, foreign relations conducted by diplomats in striped pants. These descriptions take seriously Kavanagh’s injunction to look at institutional actors as complex bureaucracies whose participants have long-term working relationships built upon shared norms. And we have some hints about the social and political sources of the descriptions. We can look at recruitment patterns to identify the social origins of the people who actually engage in the day-to-day work of sustaining a collaborative project, and similarly we can look at the socialization processes that sustain their normative commitments to collaboration. The critical point is that these inquiries might point up divergences between the institutional actors and ordinary citizens, which lead to the misalignments of concern here.

The constructive approach to misalignment directs attention to political parties as vehicles for aligning institutional actors and the citizenry. Political scientists distinguish between the party-in-government and the party-in-the-electorate. Kavanagh’s focus on the complexity of institutional actors can perhaps lead us to see the party-in-government as mediating between the legislature and executive taken as a whole and the electorate by creating a two-way communications system. The leaders of the party-in-government inform the electorate about why a particular collaborative constitutional interpretation is good for the polity or more generally why the collaborative norms that pervade the government are good for the polity even if, in particular instances, the policy adopted seems mistaken to the citizenry. The party-in-the-electorate informs the leaders of the party-in-government of the citizenry’s view that collaboration has gone too far, necessitating a realignment through adjusting the collaborative norms. Of course this is at most a caricature of what inevitably would be complex political stories.

Kavanaugh uses the work done in sustaining marriages as an analogy to the quotidian work. “[T]here is no marriage without disagreement,” but “[t]he rationale of the institution of marriage … is to secure the commitment of two people to a long-term loving relationship, underpinned by norms of mutual respect, support, trust, and self-restraint…” (p.110). So too with the relationships among governing institutions. When disagreement occurs the institutions take each other’s positions seriously, revise their own positions in light of constructive criticisms, refrain from exercising all the power they formally have, and in general try to work things out.

Sometimes the best course for both partners to a marriage is divorce, that is, the termination of the effort to collaborate on “common endeavours.” The most direct constitutional analogue to divorce is secession. A looser analogue, though, would be the renegotiation of the terms of continued engagement. Political actors propose a constitutional project dramatically different from the one in place. Conflict rather than collaboration between them and the adherents of the old project occurs—a showdown, in short. If the proponents of the new project prevail, a new collaborative equilibrium is established and Kavanagh’s quotidian processes kick in again.

As I’ve suggested, Kavanaugh’s work is extraordinarily suggestive. I close with the thought that her focus on collaboration might reflect a woman’s perspective and that mine on conflict might reflect a man’s—and that understanding constitutions and their development might well require both.