For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023).
Lawrence B. Solum
Aileen Kavanagh’s important book, The Collaborative Constitution, offers a deep, insightful, and optimistic analysis of constitutional theory that aims to displace the conventional narrative that pits judicial supremacy and the institution of judicial review against a form of legislative supremacy that would take constitutions away from the courts. Kavanagh’s alternative is a collaborative constitution—in which the constitutional order is structured via interactions between judicial, legislative, and executive institutions and actors. Kavanagh mostly explores these themes in the context of the United Kingdom with less extensive discussion of Canada and other commonwealth systems. Although the theoretical chapters in the beginning of the book are framed generally, Kavanagh chose not to engage in in-depth exploration of the implications of her theoretical framework for other constitutional orders, including that of the United States. A wise choice, given the effort required to apply a rich constitutional theory to even a single constitutional system.
Nonetheless, Kavanagh’s book will prompt many readers
to ask, “How could Kavanagh’s framework be applied to the American context?” There
are, of course, many obvious differences between the UK and the US. Some of
those differences are legal. The US has an integrated text that constitutes its
written Constitution, but the UK’s constitutional order is an amalgam of
written documents and unwritten norms and conventions. In the US, federalism is
understood as a fundamental restraint that Congress cannot override, but in the
UK the devolution or centralization of power is (at least in theory) subject to
ordinary legislation enacted by Parliament. In the US, divided government
(different parties control the presidency and Congress) is common, but in the
UK, Prime Ministers and their cabinets must have the support of Parliament and
usually the PM is the leader of a party with a parliamentary majority. Other
differences are jurisprudential. Constitutional theory in the US is dominated
by the debate between originalism and living constitutionalism, but that debate
is peripheral or irrelevant in the UK.
Another major difference between thinking about
constitutionalism in the US and the UK is political. Politics in the US in the
third decade of the twenty-first century is deeply conflictual and marked by
political polarization that many think is extreme. Politics in the UK involves
sharp disagreements, but the degree and depth of divisiveness may be different.
Because divided government is impossible in a parliamentary system,
polarization plays out in different ways. Both the US and the UK are both characterized
by pluralism—with no deep consensus on fundamental matters of religion,
morality, and political ideology. The social, political, and institutional
differences between the US and the UK raise the question whether the preconditions
that enable collaborative constitutionalism in the UK are present in the US. And
if the answer to that question is “no,” that raises are further question about
the long run stability of collaborative constitutionalism in the UK.
Kavanagh hints at these questions in the following
passage from page 110 of The Collaborative
Constitution:
The
existence or prevalence of sharp conflict and angry contestation between the
branches does not mean that this is how the constitutional relationships ought
to be conducted. If political actors try to eviscerate the jurisdiction of the
courts or discredit the legitimacy of the courts in a way which undermines
their ability to carry out their judicial role, then those actors have violated
the norms of the collaborative constitution on which a well-functioning
constitution depends. Whilst the branches of government can tolerate a degree
of antagonism and confrontation at times, it cannot be conflict all the way
down. Nor can there be conflict all the time. For a healthy system of
constitutional government to exist – and, crucially, to persist over time – the
interaction between the branches must be based on unwritten conventions and
‘tacit understandings’ that the branches of government will treat each other
with comity and respect. As with all long-term relationships, the relationship
between the branches cannot plausibly be based on conflict.
It is clear that politics in the
United States frequently depart from norms of comity and respect. In the
constitutional realm, a set of norms that enabled collaboration seems to be
giving way to constitutional hardball.
The erosion of norms and the rise of constitutional
hardball is especially clear in the context of the judicial selection,
especially for vacancies on the United States Supreme Court. Whereas there was
once a norm that the Senate would confirm presidential nominees to the Supreme
Court, so long as they were qualified and did not represent an extremist
political ideology, the process is now characterized by conflict and
obstruction. Democrats point to the Senate Republican majority denying
President Obama’s nominee, Merrick Garland, a vote and characterize Justice
Neil Gorsuch’s eventual nomination and confirmation as a “stolen seat.”
Republicans have their own litany of grievances beginning with the successful
Democratic effort to block the appoint of Judge Robert Bork to the seat vacated
by the retirement of Justice Lewis Powell. The judicial selection process has
undergone a decades long downward spiral
of politicization. If Donald Trump becomes President but Democrats retain
control of the Senate, it is not clear that any nominees to judicial office
will be confirmed during Trump’s four-year term.
Kavanagh describes her theory as both descriptive and
prescriptive. In the case of the UK, she argues that collaborative
constitutionalism provides the best description of the basic structure of the
existing constitutional order and offers prescriptions for its improvement. Kavanagh
does not opine in her book on the question whether the existing constitution
order in the United States can be described as one of collaborative
constitutionalism; nor does she address the question whether moves towards
collaborative constitutionalism are possible or desirable under the current
political conditions in the US. Can collaborative constitutionalism work under
conditions of extreme political polarization where many constitutional norms
have broken down and constitutional hardball has become the rule rather than
the exception?
These differences between the US and the UK, suggest an
important question: What are the preconditions of collaborative
constitutionalism? And what tools do we need to think about that question in a
rigorous and systematic way? One starting point is the distinction between
ideal and nonideal theory deployed by the philosopher John Rawls in his
magnificent and hugely influential book, A Theory of Justice and its
sequel, Political Liberalism. An important role of the prescriptive
component of Kavanagh’s collaborative constitutionalism is that it offers an
ideal normative theory of constitutionalism: constitutional practice would be
collaborative in an ideal case. In the
less-than-perfect actual world, it may well be the case that a system that is
mostly collaborative can be made better by moving towards the collaborative
ideal. But those conclusions about what is good for a mostly collaborative
constitutional order may not provide recommendations that are appropriate for a
society characterized by deep pluralism, extreme polarization, and substantial
erosion of the constitutional norms required for collaboration. And it is not
clear that the kind of collaboration that works in the UK can easily be
transplanted to a constitutional system where collaboration requires enlisting
the support of the President, the Senate, the House of Representatives, the
Supreme Court, and fifty state systems, especially in times of divided
government, during which different parties control different institutions.
Polycentricity comes in degrees, and the constitutional system in the US
involves a greater dispersion of power and authority than does the system in
the UK. The polycentricity of the American constitutional order is, in part, a
matter of constitutional design—explained and argued for by James Madison in
Federalist 10. As polycentricity increases, the obstacles that face
collaborative constitutionalism may increase: the greater the number of
institutions and individuals that must cooperate, the more difficult it will be
to reach consensus on the ground rules that govern constitutional practice.
Moreover, the theory
of the second best teaches us that incremental adjustments in the direction
of the ideal conditions may actually be counterproductive or harmful when the
ideal system is outside the feasible choice set. A theory of collaborative
constitutionalism is not a magic wand—no theory is. Insisting on respect for
norms of civility and respect may be futile. Injunctions against constitutional
hardball may go unheeded. And channeling political energy into the quest for
the unattainable may divert attention from the hard choices that cannot be
avoided in the second-best world of American constitutional politics.
Analysis of the preconditions of collaborative
constitutionalism must consider the nature of constitutional disagreement. The
possibility of collaboration depends in part on the questions facing the
constitutional system. As Kavanagh puts it, collaborative constitutionalism
requires “compromise rather than combat” (p. 102), but not every constitutional
question lends itself to compromise. Compromise is particularly difficult when
what are sometimes called “transcendent interests” are involved. An interest is
transcendent when it involves some moral or religious value or issue that is of
paramount importance. For example, it may well be that the constitutional
questions about abortion and reproductive autonomy involve transcendent interests.
On the one hand, those who oppose a constitutional right to abortion may
believe that recognition of such a right is inconsistent with a transcendent
interest in the sanctity of human life. On the other hand, those who support a
constitutional right to reproductive autonomy may believe that such a right is
essential to the transcendent interest in the moral and political equality of
women. If each side views its interest as transcendent and if collaborative
constitutionalism requires that they compromise, then something must give way.
If neither side is willing to revise its view about the transcendent nature of
the interest at stake, then both sides may come to believe that they are
morally obligated to set aside the constitutional norms that constrain them in
the constitutional battle on the issue of abortion. For them, constitutional
hardball may become a moral imperative. In this scenario, collaborative
constitutionalism would give way to agonistic constitutionalism, no holds
barred conflict over the content of constitutional law. Once the battle is
joined, it may be difficult to restrict the conflict to the issues of
transcendent importance.
When norms give way, it may be like a dam that bursts—a
trickle rapidly becomes a flood. In the world of agonistic constitutionalism,
the life of constitutional doctrines could be nasty, brutish, and short—with
longstanding precedents on the chopping block when the ideological balance on
the Supreme Court tips in a new direction. In a worst case, scenario political
actors might respond by direct manipulation of the Court, gaming the
confirmation process or directly expanding the number of seats in order to reverse
a decision abhorred by the President and a majority of Senators—“court packing”
in American constitutional parlance. It seems inevitable that court packing
would provoke retaliation in kind when the politics flip. One can imagine the
number of Justices growing from 9 to 15 and then from 15 to 27, with no end in
sight. The Supreme Court’s marble palace might be joined by a less impressive
office tower with plenty of room for the new Justices.
The problem of compromise on issues of transcendent
importance raises important questions that Kavanagh does not address. In the
American context, these questions include: (1) what issues are appropriate for
resolution by ongoing constitutional collaboration or litigation, (2) what
issues are to be regarded as settled unless and until the constitution is
formally amended, and (3) what role does the text of the written constitution
play in constitutional systems that have adopted such a document? My reading of
Kavanagh—I might be mistaken—is that she does not take these questions head on—certainly
not with respect to transcendent issues in the context of a deeply polarized
society in which constitutional hardball has become the norm.
Kavanagh has almost nothing to say about originalism or
living constitutionalism in The Collaborative
Constitution. Neither “living constitutionalism” nor its Canadian cousin,
“the living tree” are mentioned even once in the text of Kavanagh’s book. The
word “originalism” does make one appearance, when Kavanagh rejects “crude
originalism, which seeks to draw a conclusive connection between legislative
history and legal meaning.” (p. 352) This brief passage addresses a form of
originalism largely abandoned more than three decades ago and says nothing
about the central thesis of contemporary originalist theory—that the original public meaning of the
constitutional text ought to constrain constitutional practice by all of the
actors that Kavanagh envisions as the agents of collaborative constitutionalism
(including courts, legislatures, and executives). Kavanagh’s framing of the
issues in The Collaborative Constitution
ignores an alternative to both judicial and legislative supremacy as well as
collaborative constitutionalism. That alternative, which might be called
“constitutional supremacy,” is the view that the communicative content of the
constitutional text ought to constrain all constitutional actors, limiting both
collaboration and conflict. I have offered an alternative framing that puts
constitutional supremacy on the table in Outcome Reasons and
Process Reasons in Normative Constitutional Theory.
Of course, Kavanagh’s investigation is limited to the
UK, which lacks an integrated constitutional text. So, her failure to address
originalism is neither an oversight nor an unexplained omission. Nonetheless,
we can ask whether Kavanagh’s theory has implications for the great debate in
American constitutional theory between living constitutionalism and
originalism.
One possibility is that Kavanagh might argue that this
debate should itself be the subject of collaborative constitutionalism. Perhaps,
Congress, the Supreme Court, and the President should engage in a civil and
respectful process of interaction and arrive at a provisional and revisable
settlement of the respective roles of constitutional text, judicial
construction, legislation, and executive action in the determination of the
content of constitutional law. Before I say more, I want to make it clear that
there is something deeply right about this move—should Kavanagh choose to make
it. The debate between originalism and living constitutionalism is ultimately
about the fundamental norms that govern constitutional practice. If those norms
are contested, we must attend to considerations of political morality if we are
to resolve the contest on the basis of reason rather than raw power. Originalists
maintain that constitutional actors should adhere to a constitutional norm that
reflects what is called the “Constraint
Principle”: constitutional doctrine ought to be consistent with, fully
expressive of, and fairly traceable to the original public meaning of the
constitutional text. The originalist case for treating the constitutional text
as binding cannot be summarized here, but it rests on fundamental values of
political morality, including legitimacy and the rule of law.
As Kavanagh, following H.L.A. Hart, emphasizes, the bedrock
norms of constitutional practice are social, not legal. And as social norms
they must operate based on a social consensus (among officials at a minimum).
The Supreme Court cannot permanently settle the debate between originalism and
living constitutionalism by issuing an opinion declaring that “originalism is
our law.” Likewise, Congress cannot ensure long-term victory for living
constitutionalism by enacting a statute that attempted to mandate a common law
constitution or to abolish the institution of judicial review. Such attempts
can only succeed if they are consistent with the fundamental social norms that
give institutions legal and political authority.
But if the debate between originalists and living
constitutionalists must or should be settled collaboratively, that does not
entail the further conclusion that the best outcome is whatever compromise
results from an interactive process of give and take involving the three
branches of government at both the state and federal level. The observation
that a collaborative process is required to establish a constitutional order
does not entail the further conclusion that the process itself is the ultimate criteria
for the goodness of the outcome.
Once we focus on the preconditions for collaborative
constitutionalism and their relationship to pluralism, polarization, and the
erosion of constitutional norms, it becomes apparent that living
constitutionalism and originalism differ with respect to the demands they place
on the constitutional system as a whole. Living constitutionalism entails that
the constitutional order is in a sense “always up for grabs.” If questions of
transcendent importance are on the table, then resolving those questions will
put extreme pressure on a system of voluntary cooperation between actors and
institutions that regard those questions as outside the realm of compromise.
Originalism has a fundamentally different approach to
the question as to what is “up for grabs” in constitutional politics. Originalists
argue that the constitutional text settles some issues and leaves other to democratic
politics. But when originalists advance this argument, they should not
exaggerate the extent to which the constitution gives determinate answers. Some
constitutional provisions may be vague or open-textured, creating zones of
underdetermination where either courts or political actors will need to create
implementing rules or practices to resolve particular cases or issues. But an
acknowledgement of modest constitutional underdeterminacy should not be
mistaken for the wrongheaded view that the text of the United States
Constitution is radically indeterminate. That view is simply false, and any
attempt to demonstrate that it is true must consider the constitution
clause-by-clause in light of the evidence of constitutional meaning. Handwaving
and assertion are simply not enough.
In the American context, originalism entails that
fundamental constitutional change be channeled through the Article V amendment
process and not through constitutional litigation or tacit constitutional
compromise between the Supreme Court, Congress, and the President. Because
Article V requires ratification by a supermajority, constitutional amendments
usually require a relatively high degree of stable social consensus for their
enactment—although there may be exceptions such as the failed 18th
Amendment, mandating the prohibition of alcohol, later repealed by the 21st
Amendment, returning control of this issue to the states.
Living constitutionalism, on the other hand, entails that
every constitutional question is open to an ongoing process of revision. American constitutional theorists support
different versions of living constitutionalism including Common Law
Constitutionalism, Constitutional Pluralism, and the Moral Readings Theory, but
Kavanagh might prefer that living constitutionalism take the form of constitutional
collaboration. Whatever form it takes, living constitutionalism maintains that the
Article V process is always an option but never a strict requirement. If
everything is up for grabs and the Supreme Court is the preferred agent of
constitutional change, control of the Court is a very high stakes game and
constitutional hardball may be the rational strategy for those who play.
Does the American case have implications for
collaborative constitutionalism in the UK and elsewhere? Someone might argue
that the US is an outlier, a tragic case of constitutional rot undermining the
conditions for collaborative constitutionalism—but lacking significance for This
way of thinking is tempting, especially for optimists, but it assumes a
short-term perspective. Even if the UK is immune from an infestation of
constitutional rot next year or even for the next decade, it seems naïve to
assume that the forces that have undermined the conditions of collaborative
constitutionalism in the US could never take hold in the UK. Both history and
the current state of democracy worldwide suggest that the possibility of
democratic backsliding is not a dystopian nightmare—the erosion of
constitutional norms is a real threat.
Normative constitutional theory can and should be
realistic. That does not mean that constitutional theorists should eschew ideal
theory—envisioning a first-best constitutional order can perform an important
role in guiding constitutional practice in our second-best constitutional
world. But the attractiveness of ideal constitutional theory should not blind
us to the practical necessity of focusing on the feasible choice set—the
options that are possible in the here and now and for the foreseeable future.
We need both ideal and nonideal theory.
And when we investigate the real world of second-best
options, we may have good reason to consider worst-case scenarios. It should
count as a real virtue of a constitutional design that it provides backstops,
guardrails against a downward spiral of politicization that could turn
constitutional rot into constitutional dystopia. In the US, the backstop that
could have been provided by the written constitution was dissolved by a living
constitutionalism that put most of the fundamental constitutional questions up
for grabs—with much of the grabbing done by the Supreme Court. One way of
thinking about originalism is to conceive it as an effort to restore the role
of the constitutional text as a fixed point in constitutional politics.
So long as the UK continues to resist the adoption of a
written constitution, originalism will simply not be an option for its
constitutional order. Instead, a social consensus on fundamental constitutional
norms has provided a stable foundation for UK constitutionalism. What happens
if the consensus breaks down and collaborative constitutionalism gives way to
constitutional hardball and no-holds-barred conflict? Kavanagh tells us that in
this scenario, the preconditions for collaborative constitutionalism won’t be satisfied.
But what is the alternative? The question itself is disturbing, but sometimes
disturbing questions deserve an answer.
Lawrence B. Solum is William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law & Douglas D. Drysdale Research Professor of Law at the University of Virginia. You can reach him by e-mail at lsolum@law.virginia.edu.