Imagining America’s Collaborative Constitution: Part II

Guest Blogger

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

Aileen Kavanagh

Of Norms and Forms

               As Professor Stephen Gardbaum rightly observes, The Collaborative Constitution emphasises the fundamental importance of unwritten norms in all constitutional systems.  Even in a country with a revered constitutional text like the United States, the normative force of that text depends crucially on whether the key constitutional actors treat that text as normative and binding on their behaviour.  This is the signature insight of H.L.A. Hart that all law bottoms out in non-law (i.e. in social norms), and at that level what matters most is whether the people in power commit to the constitutional rules of the game - aptly described by Josh Chafetz as ‘the ethics of constitutional commitment’.  Absent that commitment, the written text becomes a hollow hope – a ‘parchment barrier’ devoid of authority and force.  Beneath the constitutional forms lie norms; and beneath the constitutional architecture lie attitudes.  Instead of embracing the formal idea of ‘constitution as architecture’, my book explores the deeper terrain of ‘constitutionalism as mindset’.

               Gardbaum poses two key questions about this analysis.  First, if these norms are as foundational to all constitutional systems, does this flatten out the differences between systems and make my account ‘oblivious to context’?  Second, does my analysis overlook the consequential – and variable - impact of constitutional design on how a system works?  In emphasising norms, do I underestimate forms? 

               My answer to both of those questions is ‘no’.  In drawing attention to ‘the ubiquity of unwritten constitutionalism’, I do not underestimate the valence and variability of constitutional design.  As Gardbaum observes, constitutional design creates different basic structures of democratic politics.  Fundamental design choices – such as whether there is a parliamentary or presidential system - makes a big difference to how institutions act and interact in a structured constitutional scheme.  I agree with Gardbaum on this.  Design matters - and design differs - with myriad consequential effects for the success and sustainability of any constitutional system.

               However, Gardbaum is right to discern a degree of scepticism about the centrality of design in contemporary constitutional scholarship.  I did not make questions of constitutional design central to The Collaborative Constitution for a number of reasons.  First, the crux of my argument is that constitutional government goes well when all the key constitutional actors work together to achieve just government under the Constitution.  This applies to all systems, regardless of their (significant) differences in constitutional design.  As I say in the book, collaborative constitutionalism is not inexorably tied to any particular constitutional structure.  It lives primarily in the unwritten norms of comity, collaboration, and constrained conflict which sit at the foundation of any constitutional order. 

True, some constitutional designs may be more conducive to effective collaboration than others.  It may be that presidential systems lead to more conflict and gridlock than their parliamentary counterparts.  The U.S. system may be more prone to constitutional showdowns than Westminster systems.  Nonetheless, even in a presidential system, the branches of government must work together in various ways to get things done.  It cannot be conflict all the time; and it cannot be conflict all the way down.  The art of politics is compromise and accommodation – and this applies as much in Washington as it does in Westminster.  Even the American President must sometimes reach across the aisle.  This is not to deny the deep differences between both systems.  It is simply to say that The Collaborative Constitution articulates an ideal which applies to them both, albeit in different ways. 

Second, the current context of democratic decay and constitutional corrosion should lead us to be modest about what design alone can deliver.  When reflecting on Poland’s constitutional breakdown, Wojciech Sadurski observed that when authoritarian leaders take over, ‘there is very little that even a well-crafted constitution can do’.  Though Sadurski did not deny the importance of good design for a well-functioning system, he was struck by ‘the relative irrelevance of formal constitutional design’.  When push comes to shove – and it’s coming to shove in many systems around the world – no amount of beautiful design or intricate structure can save a constitutional democracy.  The ultimate question, then, is whether those in power will commit to the constitutional rules of the game.  And that commitment is ‘extra-legal’ – it lies in the realm of the unwritten. 

In a system with a codified constitutional text such as the United States, it is tempting to think that a sacred text will save us from all evil.  And yet, Donald Trump’s most problematic behaviour was targeted not at the written constitutional text, but at the unwritten norms which give that text meaning and constitutional integrity.  The moral of the story is that we should decenter sacred texts and Supreme Courts in our understanding of what makes constitutions work.  In drawing attention to the fundamentality of unwritten constitutional norms, The Collaborative Constitution contributes to that decentering process.  It enjoins us to study constitutional texts in the context of constitutional culture. 

Finally, when writing The Collaborative Constitution, my book was in conversation with leading comparative constitutional law taxonomists - including Stephen Gardbaum and Mark Tushnet – who distinguished between systems of ‘strong-form’ and ‘weak-form review’, on the basis of a) whether courts had the power to strike down legislation and b) whether legislatures had the power to override court decisions in the relative short-term.  In that taxonomy, the U.S. was regarded as a paradigm of ‘strong-form review’ and the UK was an emblem of ‘weak-form review’.  Responding to Gardbaum and Tushnet, I wrote an article called ‘What’s so Weak about Weak-Form Review?’, uncovering the hidden strengths of so-called weak-form review in the UK system.  Here is not the place to revisit this debate.  But my main point was this: by leaning so heavily on the formal features of constitutional design - detached from an appreciation of how those features worked in practice - this taxonomy ran the risk of misjudging institutional strength and weakness across a variety of systems.  To be clear, the take-home is not that design is irrelevant or that context doesn’t matter.  It’s precisely the opposite.  The key main take-home is that we should look at constitutional design in the context of constitutional culture.  We should study the norms and forms of constitutional democracy as part of a holistic constitutional analysis.

Conflict and Collaboration; showdown and slowdown

Professor Mark Tushnet provides an illuminating analysis of the relationship between conflict and collaboration in The Collaborative Constitution.  Carving up the terrain in ways I didn’t anticipate – but in ways I find enormously generative – Tushnet argues that my book opens the way for us to construct an account of constitutional meaning that integrates the quotidian and the conflictual.  Tushnet’s analysis highlights three crucial points.

First, he clarifies that collaborative constitutionalism does not preclude conflict or contestation.   Rather, it presents a picture of constrained conflict, regulated rivalry, and disciplined democratic competition, where conflict is the exception not the norm.  Though it can’t be conflict all the time, or conflict all the way down, this does not preclude pockets of conflict in a broader collaborative scheme. 

By aligning collaboration with the quotidian - and conflict with the exceptional - Tushnet usefully highlights the complex co-existence of conflict and collaboration in any system.  This opens up rich and productive lines of inquiry.  Does the quotidian and conflictual shift over time?  What prevents the conflictual becoming the quotidian, and vice versa?  How do we deal with confusion about the quotidian?  What are the dark sides of ‘collaborative equilibria’?  My book doesn’t answer these questions directly or fully, but it gives us a place to start. 

Second, Tushnet shows that in order to work out whether a system is ‘collaborative’ – and, if so, how, and to what extent – we need to engage in a multi-level, multi-site, and multi-institutional analysis, all viewed dynamically over time.  We should beware of focusing only on the flashpoints of friction today.  We need to situate those conflictual episodes in a longer and deeper constitutional trajectory.  Tushnet also helpfully highlights the mundane aspect of the constitutional quotidian.  When reading Tushnet’s analysis, I was reminded of Max Weber’s insight that ‘politics is the hard and slow boring of hard boards’.  The same is true of constitutional government.  Though glamorous theories of ‘agonistic constitutionalism’ are undoubtedly alluring, they do not capture the quotidian demands of stable constitutional democracy over time. 

Third, Tushnet indirectly highlights the value of interbranch conflict in any system – not only episodic conflicts on particularly acute issues, but also system-wide constitutional change which may lead to enhanced constitutionalism under a radically reconfigured constitutional regime.  Of course, if a regime is deeply dysfunctional, then a radical change is required.  However, if a system is relatively well-functioning - albeit with significant problems and challenges - then the calculus is different.  In this scenario, Tushnet and I may have different baselines.  I would build in a strong status-quo bias, attentive to the value of stability, and alert to the significant risks - and possibly counterproductive effects - of radical constitutional change. 

In The Collaborative Constitution, I argue that constitutional slowdown is a preferable modus vivendi to constitutional showdown – at least in the quotidian.  By ‘constitutional slowdown’, I mean a commitment by the key political actors to channel proposed legal changes through the required institutional law-making processes.  Undoubtedly, this slows the system down.  As Tushnet says, it can be an ‘impediment’ to good as well as bad policy change.  And yet, we toss those impediments aside at our peril.  Particularly in an age of political polarisation, we need the mutual assurance that regardless of who comes to power, they must all commit to the basic ground-rules of governance.  There is no constitutionalism with shortcuts.  There is only the long, hard, painstaking process of making law in a way which is compliant with constitutional and democratic norms.  This may impede good policy on occasion.  But this is the price we pay for a stable, well-functioning system of constitutional government where everyone is required to respect the rules of the game in a spirit of fair play. 

Collaboration and Interpretation

               As Professor Solum rightly observes, I have nothing to say in my book about the debate between originalists and living constitutionalists under the U.S. Constitution (though I have written about originalism and living constitutionalism in the past).  However, though The Collaborative Constitution does not speak directly to the originalism/living constitutionalism/constitutional supremacy debate, my book bears on it in a number of indirect ways. 

For one thing, if we situate judges within The Collaborative Constitution - locating them in their relationship of partnership with the political branches - this has implications for how we understand the judicial role.  In particular, it forces us to grapple with the relational dimensions of judging and the ways in which judges interact with the political branches when adjudicating whether laws comply with the Constitution. 

Once we do this, new questions come to the fore.  Are judges agents or partners of Congress?  Should judges tell Congress what to do, or should they defer to it?  What are the normative foundations of the duty of judicial deference, if such exists? If judges should defer, when? How much? Why? Should judges calibrate the intensity of their review, reserving light-touch ‘rational basis’ scrutiny for some issues and hard look scrutiny for others?  Are some issues non-justiciable?  Why?  When should judges use the Ashwander doctrine and when should they strike down the law as violating the Constitution?  How should judges approach constitutional remedies?  Though these questions are not central the originalism/living constitutionalism debate (as I understand it), they are vitally important to decision-making by the U.S. Supreme Court. 

In my book, I grapple with these questions, reflecting on canons of construction, presumptions of constitutionality, clear statement rules, variable standards of review, constitutional remedies, doctrines of deference and justiciability, constitutional minimalism, and the so-called ’passive virtues’ (which, I argue, are better conceived as ‘collaborative devices’).  Charting an iterative and interactive dynamic between judges and politics – which I sometimes describe as ‘judge as nudge’ and ‘court as catalyst’ - I draw on the rich American literature on ‘prods and pleas’, ‘constitutional flares’ etc.  I defend the idea of calibrated constitutional review, where judges calibrate the intensity of review in light of a number of substantive and institutional factors at play in the case.  Based on a judicial role-conception which I call ‘judge as partner’, I situate judging in a joint enterprise, drawing out its collaborative dimensions.  And I am not alone.  Professor Dan Coenen has argued that many of these doctrines – including clear statement rules, form-based deliberation rules, time-driven second-look rules, constitutional sunset rules, and constitutional common law – together comprise a Constitution of Collaboration.

My analysis suggests two things.  One: although the originalism/living constitutionalism debate is critically important, it occupies only a small slice of the adjudicatory action undertaken by the Supreme Court.  Two: The Collaborative Constitution puts interpretive questions in a broader constitutional context – looking not just at the relationship between judge and text, but between judges and politics, courts and Congress, and even judges and the People.  On the collaborative vision, we need to situate interpretation in a broader collaborative context.  Viewed in that larger landscape, judges look less like Herculean heroes pronouncing from on high, and more like partners in a collaborative enterprise where they have a significant, but subordinate, role to play. 

Collaboration, Devolution, Disagreement

In an incisive analysis, Professor Delaney highlights the important issue of devolved government in the UK system.  Though I didn’t discuss this issue in my book, I believe that collaborative devolution is both possible and desirable.  Just this week, the House of Lords Constitution Committee published a report on The Governance of the Union: Consultation, Co-operation and Legislative Consent, urging the UK Government ‘to build and maintain a more effective Union, characterised by respect for, and co-operation with, the governments and legislatures of the devolved nations’.  Recognising the importance of a ‘cooperative mindset’ for devolution to work, the Report emphasises the value of ‘working together on the development and implementation of policies of common concern’ in a spirit of ‘goodwill and co-operation’. As Professor Stephen Tierney observes, this echoes comparable principles of solidarity, comity or Bundesteue found in other territorial and federal constitutions.  These are the norms of The Collaborative Constitution.  For devolution to work, it must be collaborative at its core. 

Though Delaney acknowledges that devolution in Scotland, Wales, and Northern Ireland is ‘latticed with frameworks, committees, and admonitions to act responsibly and with respect’, she is nonetheless struck by the conflicts and tensions, the disagreements and disappointments which have plagued devolution in the post-Brexit period.  Is this a ‘devolutionary fly in the collaborative ointment’?  Or does it point to a deeper and broader problem with the idea of The Collaborative Constitution?   

In my view, Delaney’s analysis can be generalised across the entire UK constitutional order.  It is not that human rights protection in the UK is cosy and collaborative, whereas devolution provides a fierce nexus of conflict.  Both of these issues generated ongoing political controversy, especially in the fractious post-Brexit era.  Delaney helpfully highlights that the UK is not a highly consensual constitutional system where collaboration comes easy.  On the contrary, it is riven by the usual political, social, ideological, geographic, and moral points of controversy that we find in other systems.  Both Larry Solum and Erin Delaney are correct: when we look at our constitutional systems in the 21^st century, fierce conflict comes to the fore and the delicate collaborative latticework recedes into the background. 

So that begs the question: when writing The Collaborative Constitution, did I sing myself to sleep with a constitutional lullaby about continued collaboration in troubled times?  Was I naïve about the depth and dynamics of political conflict in the UK and elsewhere?  Was I donning the rose-tinted glasses to inoculate myself against the rising tide of constitutional hardball, averting my gaze from the dirty tricks of Donald Trump and Boris Johnson alike?

 The opposite was in fact the case.  I was writing The Collaborative Constitution during a period of intense political upheaval, both in the UK and elsewhere around the world.  As a political observer - and someone who cares deeply about the value of constitutional government under the rule of law - I was both alert and appalled.  I followed the daily news-cycle – and I read the avalanche of best-selling books with titles such as Constitutional Democracy in Crisis, How Democracy Ends, and How Democracies Dies.  I added them to my already large collection of books with titles such as The Constitution in Conflict, When Courts and Congress Collide, and Contest for Constitutional Authority. 

Of course, as constitutional lawyers, we must be attentive to conflict and crisis.  If collaborative frameworks are put in place – as they were for the devolution settlement in the UK – we must inquire into whether they work and if not, why not?  But the aim of my book was not to join the long line of laments and pronounce a ‘polycrisis’.  It was to provide a new conceptual and linguistic register in which to study constitutional dynamics - one that sounds more in responsibility and restraint, than in conflict and confrontation.  Whilst leading theorists foreground a conflictual narrative of ‘constitutional hardball’, my book seeks to reorient the inquiry towards more constructive questions about how to resolve disagreements and reduce conflicts in order to make them politically productive and constitutionally tractable.  Somebody’s got to be the adult in the room.  And that person is typically not asking for more high-octane conflict and constitutional showdowns.  They are typically asking for civility and respect, and a joint commitment to work together in a spirit of fair play.  In short, they’re calling for The Collaborative Constitution. 

Of course, we are all fascinated by conflict and crisis.  Conflict sells copy.  It provides good red meat for a media with an insatiable appetite for news.  And constitutional lawyers are not immune from the drama of dissensus.  We sit up and listen when the court strikes down and politicians strike back.  We celebrate the blockbuster cases.  And we give constitutional villains plenty of airtime.  The constitutional tragedy of Trump may be appalling, but it’s also riveting.  We all want a piece of the action at a constitutional showdown - or a front-row seat at least.  In comparison to this high-octane drama, the quotidian dynamics of collaborative constitutionalism – the painstaking process of constitutional slowdown; the ‘slow boring of hard boards’; the disciplining demands of self-restraint and forbearance - will naturally struggle to compete.  Who needs latticework when you’ve got fireworks? 

The Collaborative Constitution does not naively deny the existence of conflict.  Instead, it discerns a duty of respect, civility, and fair play between interdependent actors who have a shared responsibility to make constitutional democracy work.  It calls on our elected representatives to do good and, yes, to do better.  Collaboration is the goal - and getting there is not easy.

I lament the erosion of unwritten constitutional norms across the world in recent times.  I don’t want the rot to set in.  But our laments deserve a lodestar.  Before pronouncing a constitutional crisis where all norms have broken down, we need to pose some tough questions: how can we combine democracy and diversity?  How can we get rival political parties and branches of government with pluralist perspectives to work together and treat each other as adversaries not enemies?  How do we make the fundamental rules of the game part of the constitutional quotidian?  What does a healthy body-politic look like?

The Collaborative Constitution does not provide all the answers to these questions by any means.  It is written more in an analytical than a prescriptive register.  It does not provide a blueprint.  Nonetheless, I think it is pointing us in the right direction – and maybe America is already there, at least to some degree.  As I see it, collaborative constitutionalism lies deep in the DNA of the American constitutional order.  Let’s step back from the headline news and imagine the tradition and trajectory of America’s Collaborative Constitution.     

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.