Should we give up on the Constitution? Part II: Constitutionalism and constitutive democratic rules

Three distinct questions about the Constitution

In this sequel to my previous post on this topic, I want to distinguish among three questions that I think are implicit in the op-ed by Mike Seidman in the New York Times that prompted that post.  The three questions are these:  (1) Should we give up on the idea of constitutionalism altogether?  (2) Should we "give up on" our own Constitution on the ground that it is irredeemably "archaic, idiosyncratic [or] downright evil," as Seidman claims?  And (3) if the answer to question (2) is yes, does "giving up" on the Constitution imply simply ignoring it -- ceasing to obey it -- or rather using the Constitution's own procedures to fix it?  It's not particularly clear from Seidman's piece which of these questions he means to answer when he advocates "giving up on the Constitution."  But it's important to distinguish among them, because it is entirely possible to answer some of them affirmatively and others negatively.

In this post, I tackle question (1), focusing on a very elementary case in favor of constitutionalism:  We need it to, literally, constitute democratic government.  In my next post, I'll continue the discussion of constitutionalism by exploring the role of constitutional law beyond the establishment of basic, constitutive democratic rules.  In subsequent posts, I'll discuss questions (2) and (3), taking question (3) first because it flows most naturally from my discussion of question (1).

The idea of constitutionalism

So let's begin with the most fundamental question:  whether we should give up on the idea of constitutionalism altogether.  First it will be helpful to define what we mean by "constitutionalism."

By constitutionalism, I mean the practice of deferring to legal rules that are both entrenched and secondary.  "Entrenched" rules are rules that are especially difficult to eliminate or change.  A typical way of entrenching a legal rule is to require particularly onerous procedures in order to change that rule.  Most written constitutions do this by establishing amendment procedures that are outside the ordinary legislative process -- approval by direct popular vote rather than by the legislature, for example, or ratification by supermajorities in the legislature or by a special convention.  The amendment provisions of Article V of the United States Constitution are particularly demanding:  They require a two-thirds vote of both houses of Congress (or a majority vote by a special constitutional convention called by two-thirds of the state legislatures), followed by ratification by conventions or legislatures in three-fourths of the states.  These procedures are burdensome enough that the Constitution has been amended only twenty-seven times in its nearly 225-year history (ten of them all at once within the first two years of its existence).

The concept of "secondary" legal rules might be a bit less familiar.  Legal philosophers often distinguish secondary legal rules from "primary" legal rules.  Primary legal rules are rules that govern people's everyday conduct, from traffic laws to tax regulations to the legal requirements for forming contracts to laws prohibiting assault and murder.  Secondary legal rules are rules that govern the procedures for creating and changing these primary legal rules and, sometimes, the permissible content of these primary rules.  Rules about who makes law and how (e.g., bicameralism in Congress, the division of power between the federal and state governments) are examples of secondary rules; so are rules about whether and to what extent the government can regulate areas of conduct like speech and religion.  These secondary rules don't directly apply to the conduct of most people living their everyday lives.  Instead, they govern the making and content of the primary legal rules that apply to everyday conduct.  Most constitutional provisions are examples of secondary legal rules.  (The only current exception in the U.S. Constitution is section 1 of the Thirteenth Amendment, which directly prohibits private actors from practicing  "slavery [or] involuntary servitude.")

Constitutionalism, then, is the practice of deferring to legal rules that govern the processes of ordinary democracy and that cannot easily be changed using those processes.  In the United States, constitutionalism includes canonical written texts (on the federal and state levels) that communicate entrenched secondary rules.  It also typically includes the practice of judicial review -- the authoritative interpretation of these (often vague) texts by judges who are relatively insulated from electoral politics.  It is not clear that either of these features is necessary for true constitutionalism, however.  Great Britain, for example, has done without either a written constitution or judicial review for most of its modern history, and yet most Britons consider their system to be a "constitutional" one.

It's important to note, however, that a system must possess some binding, entrenched, secondary rules, whatever their source or mode of interpretation, in order to be considered "constitutional" in a meaningful sense.  Britain can be called a "constitutional" system because political participants in Britain typically consider themselves bound by constitutional rules, even though most of those rules are not codified in a canonical document or enforced by a political insular judiciary.  The lack of a written constitution or judicial review need not be fatal to constitutionalism, but a lack of binding constitutional rules (whatever their form, and however they are interpreted) would be fatal.

Constitutionalism and constitutive rules

Seidman's essay is not entirely transparent with respect to its primary target.  Is he attacking constitutionalism generally?  Or only constitutionalism as we practice it in the United States -- that is, the U.S. Constitution?  If the latter, which aspects of the Constitution does he oppose, and what does he suggest we do about it?  None of these questions is clearly answered in his piece (though to be fair, I should note that the Times op-ed apparently represents a tiny snippet of what undoubtedly will be much more extensive arguments in Seidman's forthcoming book).

Sometimes Seidman seems to be challenging the idea of constitutionalism itself, not simply objecting to our own Constitution or provisions of it.  For example, Seidman advocates "extricating ourselves from constitutional bondage" and debating issues "solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power." I read Seidman as suggesting here that democracy would be better without the yoke of constitutionalism around its neck -- that we would be better off deciding issues (some issues, anyway) in a purely democratic fashion rather than feeling ourselves bound by, and thus continually adverting to, constitutional limits on how we can decide those issues and on what we can decide.

Seidman's position thus suggests the possibility of a pure, unadulterated, unfettered system of democracy, free of annoying constitutional limitations.  But this assumption is a mistake, one commonly made by critics of constitutionalism.  In fact it is impossible to have democracy without some degree of constitutionalism.  Constitutional law is necessary to literally constitute democracy.

Consider the fact that even Seidman seems to acknowledge the need for a basic level of constitutional law.  He thinks we should not "have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses.  Some matters are better left settled, even if not in exactly the way we favor."  What Seidman is recognizing here is that some degree of entrenched constitutional rules -- literally constitutive rules -- is necessary to get democracy up and running in the first place.  We cannot have a functioning system of democracy if we are continually debating the details of how laws get made, who has the authority to interpret and enforce them, and so on.  Constitutive constitutional law is in this sense a necessary condition of democracy.

It is interesting, however, that many of Seidman's examples of what he calls the "archaic, idiosyncratic and downright evil provisions" of our actual Constitution arguably fall into this constitutive category.  He asks "why [we] should ... care" about Article I, sec. 7's requirement that "Bills for raising Revenue" originate in the House rather than in the Senate.  He thinks the president should "have to justify military action against Iran solely on the merits," without relying on his Article II power as commander-in-chief.  He asserts that Congress' power of the purse, conferred by Article I, should "be defended on contemporary policy grounds, not abstruse constitutional doctrine."

So, on the one hand, we have Seidman recognizing the need for some constitutive democratic rules -- that "[s]ome matters are better left settled, even if not in exactly the way we favor."  But on the other hand, we have Seidman questioning the authority of certain constitutive democratic rules (the requirements for revenue bills, the allocation of military power to the president, the conferral of the taxing and spending power on Congress).  Why does Seidman think some constitutive rules are "better left settled" while others should be open to debate?

The answer is not that there is some definitive, logical line to be drawn between the "settled" provisions and the debatable ones.  Just about any constitutive provision reasonably can be debated on its merits -- from seeming minutia like the question of where revenue bills should originate to big-picture issues like whether and how power should be divided between the federal and state governments, or between the different branches of the federal government.  There is no single inherently correct way to organize a democracy, and even if there were, people inevitably would disagree about what it is.

Such disagreements are all the more inevitable given the fact that the participants frequently will stand to gain or lose depending on how they are resolved.  (Members of the House gain power relative to members of the Senate if revenue bills must originate there; state government officials lose power if more authority is ceded to the federal government; and so on.)  The inevitability of disagreement is precisely the reason we need constitutive rules -- legally enforceable provisions that settle these debates by specifying the one correct way to do things.  Without them, continual fights about the meaning of democracy would make the actual operation of democracy impossible.  It would be like trying to play baseball with the teams constantly debating the definition of a strike.

So we need constitutional law, at least at the constitutive level, in order to have democracy itself.  Seidman's implied dichotomy between "pure" democracy and adulterated constitutional democracy is a false one.  To debate the issue of, say, the president's military power "solely on the merits," without reference to constitutional provisions, would be to throw the very idea of democracy up for grabs.

Seidman tries to finesse this point when he cites the examples of countries "like Britain and New Zealand," which "have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens."  These countries may not have written constitutions or judicial review (although, perhaps revealingly, both Britain and New Zealand recently have taken steps in that direction), but, as I suggested earlier, this doesn't mean they don't have constitutional law.  It means only that their constitutive rules take the form of entrenched statutes, traditional institutions, and established procedures rather than provisions of a single canonical document.  Political participants in Britain frequently debate what their "constitution" requires, despite the lack of a single governing text; they believe themselves bound by a set of constitutive rules even if those rules are not written down on a definitive piece of parchment.  The examples of Britain and similar systems prove only that not all constitutions must derive from a unitary constitutional text, not that constitutional law is unnecessary.

By the same token, the fact that we lack clear constitutive rules governing every detail of democratic procedure does not mean that we could function without constitutive rules altogether.  In the United States, there are many details of democratic government that either are not governed by constitutional rules at all (such as the filibuster in the Senate) or are subject to rules whose precise meaning is in dispute (such as the allocation of power over foreign and military affairs between Congress and the president).  We can get away with uncertainty (and the resulting disputes -- which, it should be noted, are frequent and heated) on these issues because the more-fundamental mechanisms of government are settled.  Power struggles between the president and Congress are tolerable because at least we know that there is a president and a Congress; we know, for example, that the president is the candidate who won the most electoral votes in the most recent quadrennial election, and that Congress consists of two Senators from each state and representatives apportioned by population as determined by a decennial census.  At some point, however, the absence of settled constitutive rules would pose a serious threat to the stable operation of democracy.  (Imagine serious recurring disputes over how many senators could be seated from each state, or the length of a president's term in office.)

Nor does the lack of clear constitutive rules on some issues imply that we can pick and choose which rules to follow when the rules are clear.  Seidman suggests as much when he questions some constitutive rules (the revenue-bill provision, the commander-in-chief power, Congress' power of the purse) while asserting that other, similar matters are "better left settled" (bicameralism, terms of office).  But people inevitably will disagree about which constitutive issues are "better left settled" and which are not; and so an approach that says "contest those constitutive rules that should be contested and leave the others alone" is a recipe for chaos.  Even if we could establish a rule for which constitutive rules may be contested and which must be considered settled, that rule itself would be a constitutive rule potentially subject to contestation.  (Indeed, one might understand our Constitution itself as embodying an implicit constitutive rule to this effect:  Those rules included in the Constitution (say, the president's power as commander-in-chief) are, by virtue of that fact, considered settled, while those rules not included in the Constitution (say, the Senate filibuster) are, by virtue of that fact, open to democratic debate.)  There is no logical limiting principle once we open the door to disobeying or contesting some constitutive rules.

The idea of democratic government necessitates constitutive rules to establish and maintain that government; and the necessity of constitutive rules implies that all such rules must be binding on the participants in the democratic process governed by them.  In other words, the very notion of democratic government presupposes some degree of constitutional law.  So we have a partial answer to question (1), the question of whether to give up on constitutionalism itself.  We can't give up on it altogether, not if we want to remain a democratic society.  At the very least we need basic constitutive rules upon which to build our democracy.

Note that this answer does not imply any particular answer to question (2), the question of whether we ought to give up on our actual Constitution.  It might be that our Constitution cannot be defended as a set of constitutive democratic rules.  For one thing, maybe our Constitution, or parts of it, can't properly be understood in terms of constitutive rules at all.  (Can the right to choose an abortion, for instance, credibly be characterized as a basic ground rule of democratic government?)  In my next post, I will suggest that the case for constitutionalism extends beyond bare-bones constitutive rules.  And in a future post, I'll argue that many (though probably not all) aspects of our current Constitution can be defended, at least in the abstract, as legitimate expressions of constitutionalism.

Even if most or all of our Constitution can be understood as constitutive rules, however, it might be the case that those rules are so bad that they are not "better left settled" -- that we are worse off obeying these "archaic, idiosyncratic and downright evil" rules than we would be if we left everything up for grabs or, perhaps better, started over and tried to draft a better set of constitutive rules.  I will address this possibility, too, a few posts down the line.

Note too, however, that we have learned something, albeit something rather incomplete and tentative, about question (3), the question of whether we should simply ignore or stop obeying our Constitution rather than following its own procedures for changing it.  The necessity of constitutive democratic rules provides a strong argument against simply abandoning all our constitutive rules without agreeing on something to take their place or, perhaps worse, allowing democratic participants (government officials, judges, citizens) to pick and choose which rules to follow and which to ignore.  Either of these approaches likely would result, not in the realization of the sort of substantive democracy Seidman seems to envision, but rather in a kind of chaos in which all bets are off and no one agrees on how government is supposed to function.  The ultimate outcome of this chaos might be democracy, although there is no guarantee of that.  But it seems probable that the short-term result would be far more painful than the result of continuing to live under an admittedly far-from-perfect constitutional system.