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 20th
century because it was embedded in robust norms of mutual toleration and
forbearance’. The 20th
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 23rd,
Boston College on Oct 28th, and Harvard Law School on October 30th. You can reach her by e-mail at