Imagining America’s Collaborative Constitution: Part I

Guest Blogger

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

Aileen Kavanagh

In The Collaborative Constitution, I argue that constitutional government is a collaborative enterprise between all three branches of government, where each branch has a distinct but complementary role to play, whilst working together in a spirit of comity, civility, and collaboration.  Rejecting the binary options of either legislative or judicial supremacy, The Collaborative Constitution envisages constitutionalism as a shared responsibility between multiple institutions. 

On this vision, protecting the Constitution is neither the solitary domain of a Herculean super-judge.  Nor is it the dignified pronouncements of an enlightened legislature.  Instead, it is a complex, dynamic, and collaborative enterprise, where each branch has a valuable – though limited – role to play in an institutionally diverse constitutional order.  The branches must work together, whilst holding each other to constitutional account.  Envisaging constitutional government as a system of ‘separated institutions sharing powers’, my book strives to make sense of the shared responsibility, uncovering the principled foundations and practical dynamics of collaborative constitutionalism at work.  The resulting picture is one of diverse institutions interacting, counteracting, and collaborating in a common project of governance in mutually respectful and mutually responsive ways.

I am indebted to Professors Erin Delaney, Stephen Gardbaum, Lawrence Solum and Mark Tushnet for their insightful reflections on The Collaborative Constitution.  When reading their contributions, I was reminded of some of the book’s key themes: the value of perspectival pluralism; the idea of ‘critique as help’; and the discipline of disagreeing with rigour and civility in a constructive collaborative enterprise.  It is an honour to receive such careful, critical, and constructive criticism from some of the best in the business. 

In a subtle analysis, Professor Larry Solum queries whether The Collaborative Constitution has any analytical purchase in the American constitutional context.  U.S. politics is deeply conflictual, he says, marked by extreme geographic, political, and ideological polarisation.   American politicians frequently violate the norms of comity, civility, and mutual respect which lie at the heart of The Collaborative Constitution.  Solum concludes that ‘collaborative constitutionalism has given way to constitutional hardball and no-holds-barred-conflict’ in the American context.  This prompts the pivotal question: In a ‘deeply polarised society in which constitutional hardball has become the norm’, is The Collaborative Constitution possible, feasible, or even desirable? 

Let me take the desirability issue first.  In my view, collaborative constitutionalism is clearly desirable in the US context.  In fact, it has never been more urgent.  It is precisely when the inherited norms of collaborative constitutionalism are under threat, that we need to recall their fundamental importance.  And it is precisely in times of deep disagreement and acute controversy that we need to find ways of working together.  Comity, civility, trust, respect, moderation, forbearance, and constitutional fair play may seem to be in short supply these days.   But these are the norms which make constitutional democracy work.  Instead of giving up on these important constitutional ideals, I suggest that we lean into them, reminding ourselves – and our elected representatives – that political power should be subject to an ‘ethics of responsibility’ in a system of responsible constitutional government.

Of course, Solum’s comments are targeted more towards feasibility than desirability.  Can collaborative constitutionalism work under conditions of ‘extreme political polarization’ where constitutional norms have broken down and constitutional hardball has become the norm?  Clearly, extreme political polarisation makes constitutional government more difficult.  And, as I say in the book, if ‘constitutional hardball’ becomes the daily diet of interbranch relations, then that will lead to constitutional corrosion and democratic decay.  At the extreme, constitutional showdowns can lead to constitutional shutdown.  That is why The Collaborative Constitution bids for forbearance rather than ferocity in inter-branch relations, urging political actors to eschew ‘dirty tricks and hardball tactics in the name of civility and fair play’. 

But while polarisation makes collaboration more difficult, it does not preclude it. It is not a precondition of collaborative constitutionalism that we all agree - or even that most of us agree.  Deep disagreement on fundamental matters of moral, political, and social importance is taken as a given.  The question then becomes: how do we frame and shape our constitutional and political order in ways that enable a multiplicity of actors and institutions to work together in mutually respectful and constructive ways?  Polarisation amongst the populace at large does not map directly onto polarisation in the political and constitutional system (though they are obviously correlated in complex ways). 

In order to assess whether constitutional hardball has become the norm in the American constitutional system, we would need to take a longer time-horizon, probing the depths and breadth of constitutional commitment within and between all three branches of government.  One of the themes of my book is that we need to step back and adopt a ‘wide-scope vision of the constitutional order’ – one which encompasses the bureaucratic actors behind the scenes, as well as the public figures who make front-page news.  Viewed in this longer and deeper trajectory, a political system which may seem highly conflictual on the surface, may be more collaborative behind the scenes.  In my analysis of the UK system, this emerged as a recurring theme: conflict for the cameras where politicians talked the big talk - and then quiet constitutional collaboration behind the scenes.  The lesson is that we should not conflate the theatre of politics with the trials of constitutional government.

In their bestselling book, Steven Levitsky and Daniel Ziblatt note that ‘All successful democracies rely on informal norms’, which ‘serve as the soft guardrails of democracy, preventing day-to-day political competition from devolving into a no-holds-barred conflict’.  They acknowledge that these unwritten norms received a body-blow before and during Trump’s Presidency, but they do not say that all hope is lost.  They note that ‘America’s system of checks and balances worked in the 20^th century because it was embedded in robust norms of mutual toleration and forbearance’.  The 20^th century is not that long ago.  In a country with the depth and longevity of stable constitutional government as the United States, I am reluctant to conclude that these guardrails have vanished completely.  There may be some rot in the constitutional floorboards and maybe some rising damp.  But the building is still standing.  And the existing rot may be reversible.  Looking in from the outside, collaborative constitutionalism still seems possible in the United States.  It is certainly worth fighting for.

Solum’s analysis prompts a deeper question about the nature of the claims made in The Collaborative Constitution. At the heart of my book is an analytical claim that constitutional government goes well when the branches of government work together in a spirit of comity, civility, and collaboration.  Therefore, the book articulates a normative constitutional ideal, namely, that the branches of government - and other key constitutional actors - should work together in various ways to jointly realise the common goal of just government under the Constitution. 

In articulating the ideal of collaborative constitutionalism, I did not pluck it from the utopian ether.  Instead, I adopted a bottom-up, phenomenological approach, where I studied the dynamics and drivers of constitutional government at close quarters.  Beginning with an inquiry into the day-to-day practices of constitutional government, I sought to uncover the principles which orient political, judicial, and constitutional behaviour.  Needless to say, reality will always fall short of constitutional ideals.  It won’t be collaborative all the way and all the time.  But that does not undercut the plausibility of the collaborative ideal which I describe as ‘grounded in practice but geared towards principle’.  Collaborative constitutionalism is an ideal which, I say, is embedded in the practice of relatively well-functioning constitutional democracies, albeit to varying degrees.

Now, you might say that I only focused on UK constitutional practice and, therefore, came up with a set of principles with limited application.  But that is not true.  When writing the book, I drew deep inspiration from a variety of jurisdictions, including the United States.  And I was attentive to the deeper dynamics, not just the surface contingencies of particular systems.  Based on my engagement with the U.S. literature, I dare to suggest that collaborative constitutionalism is latent but legible in the American constitutional context. 

Consider Richard Fallon’s idea that implementing the American Constitution is ‘a necessarily collaborative’ task, where the Court ‘shares responsibility for implementing the Constitution with other institutions of government’.  Think about Larry Sager’s collaborative theory of American constitutional practice, where judges are placed in ‘a relationship of partnership’ with the political branches as part of a ‘common constitutional project’.  Consider Jack Balkin’s argument that ‘constitutional construction’ is ‘a dialectical process’ where ‘the political branches and the judiciary work together to build out the constitution over time’.  In Balkin’s estimation, ‘judges are constantly engaged in an interactive relationship with the other branches of government and the public’.  Recall Vicki Jackson’s plea for ‘pro-constitutional representation’, attentive to the fact that all constitutional actors – not just judges – must swear an oath to uphold the U.S. Constitution in a spirit of ‘constitutional loyalty’ of parts to the whole.  In Constitutional Fate, Philip Bobbitt argued that ‘the most successful constitutional order is one that encourages collaboration … among the various constitutional institutions and actors, and thereby enhances its own stability’. 

In Reva Siegel’s reckoning, even so-called ‘judicial supremacy is, in important respects, a collaborative practice, involving the Court in partnerships with the representative branches and the People themselves’.  Lamenting the way in which the dominant court-centric perspectives ‘efface the crucial role played by social movements and the representative branches of government’, Reva Siegel and Robert Post painted a ‘policentric’ picture of American constitutionalism.  In policentric constitutionalism, multiple institutions and the People themselves combine, contribute and, yes, collaborate to forge constitutional meaning over time.  As Post and Siegel observe: ‘We have somehow suppressed these collaborative relationships, and instead enshrined the Court as the primary authority of the modern civil rights tradition’. 

More recently, Cass Sunstein has argued that ‘the U.S. Constitution should be seen as an effort to create the conditions for adversarial collaboration’, where differences of opinion are combined in a multi-institutional constitutional scheme.  Inspired by his friend and co-author, Daniel Kahneman, Sunstein appreciates that contestation and collaboration are not mutually exclusive activities.  In fact, they can be mutually beneficial - not only for the individual participants to the collaboration, but to the common enterprise as a whole. 

In an insightful analysis, David Pozen contends that ‘much of today’s most vexing political behaviour challenges not the interpreted Constitution, but the unwritten norms that facilitate comity and cooperation in governance’.  Lamenting the fact that ‘American lawyers have not given much attention to the unwritten practices that shape interbranch struggle’, Pozen argues that this has led to

an imbalanced discourse around constitutional conflict and constraint, an obsession with the Constitution’s formal allocation of authorities, and relative neglect of the informal norms that determine how those authorities are wielded and disputes about settled. 

Turning away from the perennial preoccupation with constitutional hardball, Pozen foregrounds a more productive inquiry into the constitutional norms which frame and shape that conflict and make it tractable.   Though the unwritten norms of collaborative constitutionalism have undoubtedly been tested in recent years, Pozen discerns an imperfect - but substantial - commitment to ‘the unwritten norms facilitative of pragmatism, cooperation, and fair play’ in the American political firmament. 

               To be sure, this list of quotations from leading scholars – however distinguished - does not prove that the United States has a Collaborative Constitution.  But it certainly suggests that The Collaborative Constitution had some meaningful analytical and normative traction in the American constitutional context.  In many ways, my book is a response to Post and Siegel’s striking provocation that we have ‘suppressed’ the collaborative elements of our constitutional tradition, occluding the unwritten norms on which successful constitutional democracy depends.  Let’s get them out in the open.  Let’s uncover American collaborative constitutionalism, exposing the complex, collaborative dynamics which lie at its core.

Aileen Kavanagh holds the Chair of Constitutional Governance at Trinity College Dublin, where she is Director of TriCON, the Trinity Centre for Constitutional Governance.  She will be speaking about The Collaborative Constitution at Columbia University on October 23^rd, Boston College on Oct 28^th, and Harvard Law School on October 30^th. You can reach her by e-mail at Aileen.kavanagh@tcd.ie.