Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
Providence has been pleased to give this one connected country, one united people; a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.
John Jay, Federalist 2.
Yesterday’s post discussed Adam Liptak’s New York Times piece on the decline of the U.S. Constitution as a global model, entitled “’We the People’ Loses Appeal With People Around the World.” Today’s post is dedicated to the proposition that Liptak’s title is right on the money, although quite probably not in the intended sense: the “We the People” of the Constitution encapsulates a constitutional model that is simply not available to many countries, under modern conditions. Their constitutions don’t look like ours because they can’t, and any discussion as to whether they should or shouldn’t is a silly distraction. As always, The Upside Down Constitution contains a more extensive version of the argument.
Our Competitive Constitution
Constitutions aim to produce long-term political stability, on democratic terms. (Okay, okay: “democratic” or “Living” constitutionalists don’t believe that. But their view of the Constitution as the tool of a Supreme Court vanguard to advance the demands of progressive social movements—a position that Robert Gasaway and Ashley Parrish, in a terrific article (for full article, email [email protected]), have aptly called “Marxist-Brennanism”—strikes me as dangerous nonsense.) How can that be done? One way is to organize the constitution on a principle of institutional competition: establish separate, specialized institutions with rival incentives; specify their powers (more or less); and establish decision rules for their operation. The constitutional objective is not to contain the sovereign demos. Rather, it is (in Bruce Ackerman’s felicitous phrase) to make sovereignty problematic—by delegating it to separate, rival institutions—and then to check the people’s agents.
A “pure” competitive Constitution will be short, even minimalist. It won’t contain any distributive rules at all, and it will lack all but the most rudimentary rights. It will leave those matters to competitive politics, in confidence (or at any rate in hope) that the outcomes will remain within a range that is generally viewed as fair and efficient. It’ll be difficult to amend, because you don’t want to expose the institutions that are meant to contain democratic instability to temporary passions and temptations. There, in a nutshell, you have the U.S. Constitution.
What it Takes
You will never comprehend the American Constitution unless you comprehend its sheer audacity: it requires an enormous confidence that the competitive rules of the game will prove stable and, moreover, generate acceptable outcomes (not in each case, but on the whole). Who in his right mind would commit to that wide-open game? You can look up the answer in the Calculus of Consent.
First, the constitution-writers and ratifiers must think of themselves as a single “We the People.” If their loyalties to some other collective entity—a tribe, religion, ethnic or religious group, class—run too deep, they’ll never commit to an open-ended competitive repeat game; they’ll want to protect their identity and entitlements. Hence, John Jay’s emphasis on “one united people.” It’s over-the-top in all but one respect: the bloody war for independence. We are the people who fought and won that war.
Second, constitution-writers and ratifiers need a long time horizon. Thomas Jefferson’s famous proposal for single-generation constitutions (alluded to by Liptak) is crazy: everyone will promptly turn to calculations of immediate advantage, and the entire enterprise will turn into an interest group racket. It’s only when people don’t know their place at a future table that they’ll stop loading the dice and look to rules that promise long-term, collective gains. You need a veil of uncertainty—i.e., a very long time horizon. Hence, said the Founders in the Preamble, we intend to secure the Blessings of Liberty “to ourselves and our Posterity.” Next to “We the People,” those are the most important words.
Constitutions as Cartels
Look around the world: where and on whom would you urge the daring calculus of our Constitution—Kosovo? Kenya? Iraq? Pakistan? Ukraine? Egypt? Tunisia? Libya? Surely, you’re joking. Those countries can’t commit to competitive politics: the losers in round one might not get to play a second round at all. Even countries that aren’t divided along ethnic, religious, tribal, or linguistic lines can’t easily commit to a competitive constitution: they’ll want to avoid a potentially destabilizing class conflict. Germany’s Weimar Constitution is an early example; its 1949 Grundgesetz is a later, more successful one.
If competition isn’t a viable strategy to generate democratic stability, what is? The polar opposite is what political scientists call “consociation”—that is, an elite cartel (among parties, social partners, or ethnic or religious leaders) to stabilize some agreed-upon distribution of entitlements, coupled with an agreement not to change that distribution unless every recognized group consents. Constitutions of this type have a very social-democratic feel. They regulate the distribution of all valuable assets, especially those that might otherwise become subjects of zero-sum games—oil revenues, public sector jobs, cabinet appointments, education, and the like. They favor proportional representation and proportionalism in all institutions. (Presidentialism is definitely out.) If they are federal, the system will feature financing mechanisms that guarantee a “fair” distribution of centrally assessed and collected revenues. Consociational constitutions feature elaborate catalogues of rights, not to protect individuals but to stabilize the entitlement structure: the rights are either ascriptive (women’s rights, minority rights, language rights) or distributive (social rights, equality rights). Consociational constitutions must be readily amendable, lest social changes (for example, changed demographics) destabilize the bargain. And, they entrust the maintenance of the constitutional bargain to a (supposedly) independent guardian of the constitution and the social consensus. It’s for this reason that judicial review—unlike federalism and presidentialism—has proven a wildly popular American constitutional export.
Closer to Home
The United States Constitution is one (competitive) solution to the problem of ensuring democratic stability. What studies of the “declining influence” of the Constitution measure is the impossibility of replicating that solution under modern conditions, under very different circumstances. It’s an open question whether widely touted “consociational” solutions work any better. Donald Horowitz (for my money the best man in the comparative constitutions business) has harshly criticized consociationalists’ reliance on elites, cartels, and distribution formulas. What constitutions should do, he has argued in a Madisonian spirit, is to create incentives for cooperation among hostile groups and constituencies. But even in that version, modern constitutions will look very different from ours. (For example, they will contain very specific electoral laws.)
Perhaps, we should leave all that to the specialists and instead concentrate on matters of competition, cartels, and constitutionalism here at home. The Constitution, we’ve seen, presupposes a great deal of confidence in the regularity of competitive politics: in light of our actual politics, is that sustainable? (Tea Party constitutionalists say “no”: that’s why they all have fifteen constitutional amendment proposals in their hip pockets.) And perhaps because we no longer trust our politics, we’ve developed our fair share of consociational politics. For example, the true meaning of the Equal Protection Clause—with respect to higher education—is that “quotas are ok, so long as you lie about them.” To sustain that formula, we rely on a culture of consensus, periodic adjustments by the Supreme Court, and the “expert judgment” of elite institutions (Harvard in Bakke, the military in Gratz). The Court’s periodic recalibration of our consensus on gay rights, the death penalty, the display of religious symbols, and abortion has the same consociational logic and dynamic.
Purging our Constitution of this dross would make it even less like other countries’. But maybe there’s something to be said for “declining influence,” and American exceptionalism.