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 21st
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 23rd,
Boston College on Oct 28th, and Harvard Law School on October 30th.