THE AMERICANS: a restless and unruly people—yet remarkably restrained when it comes to playing by the rules of government. The French Revolution provoked two centuries of upheaval in Europe, but the American Revolution had the opposite effect. Two hundred years later, and only twenty-six amendments1 to the original Constitution—what a consensus!
Or so I have been told by many admiring foreigners and, less forgivably, by many Americans. No matter how often repeated, this story is false. America’s modern Constitution was created during the Roosevelt Administration through processes unknown to Article Five. It displaced an earlier arrangement established after the Civil War—the biggest bloodbath fought in the West between 1815 and 1914. Since the Federalist Founders had hoped to avoid this war at all costs, it isn’t surprising their system of constitutional revision proved inadequate in its aftermath. During both Reconstruction and the New Deal, the protagonists were all too aware of the revolutionary game they were playing. If we are to forget their unconventional achievements, we should have the grace to recognize that it is we who are doing the forgetting.
It is better to remember—if only to recapture deeper truths concealed by banalities about the “rules of the game.” I do not deny that American constitutional experience has been exceptional, or even that it has been exceptionally continuous. But these continuities cannot be understood through the model of rules.2 If Americans have not been faithful to the rules, in what sense have they been faithful at all?
I have been developing two answers—one pointing to enduring principles, the other to institutional practices. My first volume elaborated key dualist ideas that continue to inform the Constitution: most notably, the belief that the People should not be confused with their government, but that they can speak in an authoritative accent through sustained and mobilized political debate and decision. This book has focused on institutional practice—the distinctive patterns through which claims to popular sovereignty have been tested, and sometimes confirmed. The key notion has been unconventional adaptation: at periods of peak mobilization, victorious movements use their control over standing institutions to take actions that go well beyond normal legal authority. Unconventional adaptation bends accepted legalisms to the breaking point, generating deep anxieties in the minds of all and plausible charges of outright illegality from outraged opponents. The constitutional fabric threatens to disintegrate.
But this is not (quite) what happens. As the citizenry peers over the precipice, the sense of crisis concentrates the collective mind. Slowly, painfully, the People affirm the need to build a new legal order out of materials inherited from the past. Presidency, Congress, Court—the names remain the same, but fundamental relationships are reshaped through unconventional activity. The same is true of the relationship between central government, the states, and private rights. As we explore these recurring processes of reconstruction, we glimpse a paradox: Americans owe their extraordinary constitutional continuity to the same anarchic spirit visible elsewhere in national life; it is only by unconventional responses to mobilized movements that our dualistic system has endured. How have we managed to succeed in such a perilous enterprise?
As the organizing power of ordinary legality declines, Americans discover that the Constitution contains deeper imperatives that continue to shape their struggle for power and legitimacy.
Two in particular. The first is the electoral calendar, which has proceeded remorselessly for two hundred years. Even when protagonists challenge existing rules and principles, they are well aware that the voters’ judgment will not be long delayed. And they know that their opponents will forcefully bring their legal irregularities to public attention.
Here is where the second basic structure comes into play: the separation of powers between House, Senate, President, and Court. Given the electoral cycle, it is very difficult for revolutionary reformers to win control over all four branches simultaneously. This not only means that unconventional movements must be prepared for a long and difficult struggle. They must also take their opponents’ arguments seriously, at least during the interim period when traditionalists still control some of the key institutions.
This can result in a very creative period of constitutional dialogue—in which reformers are invited to rethink their critique of traditional constitutional arrangements, and redefine their transformative ideals in response to sustained resistance. During both Reconstruction and the New Deal, this give-and-take led to a certain degree of moderation. In both cases, the most extreme projects for transformation—Thaddeus Stevens’s radical reconstruction, Roosevelt’s NIRA—lost out. But the reforms that survived still seemed quite revolutionary to millions of traditional Americans. Rather than crediting the claim of Republicans or Democrats to speak for the People, these traditionalists looked upon the reformers as cynical demagogues, exploiting a moment of crisis to transform the Constitution in profoundly harmful ways. Given their convictions, traditionalists were tempted to respond with political boycotts and vigilante violence, generating an accelerating cycle of incivility.
There was a lot of this during Reconstruction—and a good deal during the lockouts and sit-down strikes of the New Deal. Nonetheless, the relatively long interim period of divided power helped contain this fearsome dynamic. The separation of powers invited traditionalists to take part in an extended constitutional drama—in which their champions played leading roles for a very long time. Rather than turning away from the scene in Washington with disgust, conservatives remained emotionally involved in the struggles of President Johnson or the conservative Supreme Court against the demagogic Republicans or Democrats—hoping against hope that they would continue to resist until “the People came to their senses.” This continuing psychological engagement made it easier for conservatives to live with the results. If even President Johnson or the Supreme Court finally gave way before the repeated electoral mandates won by the Republicans or the Democrats, perhaps it was time for conservatives in the country to reconcile themselves to the new regime?
The separation of powers, in short, restrained both sides even at their most unconventional moments. It encouraged reformers to use bits and pieces of traditional constitutional language in efforts to persuade resistant branches to give way. Traditionalists, in turn, were encouraged to continue playing the game by unconventional rules in the hope that the voters might deal them better cards at the next election. Since they only gradually came to see that the People had dealt them a losing hand, it was harder for them to cash in their chips and refuse to play the new game as it displaced the older one. After all, even the new game allowed the traditionalists to protect some of their basic interests—albeit under terms less advantageous than those they enjoyed under the previous regime. Rather than giving their opponents free reign, didn’t it make more sense for traditionalists to master the new system—and turn it to their own advantage?
As the traditionalists—or at least many of them—continued to play the game, new issues started dominating the political agenda, leading to new alliances that crossed old divisions. It became increasingly pointless to raise the old legal questions that generated such passionate division during the prior period of unconventional activity. Sober conservatives accepted the new status quo and left the legalistic quibbling to diehards and historians.*
Over two centuries, a form of constitutional continuity has emerged that resembles a type recently discussed in philosophical circles. These discussions have typically involved questions of personal identity, but they cast a useful light on our present problem. To test our understanding of personhood, philosophers have proposed a series of thought-experiments that disrupt normal expectations: Imagine that half of Bruce’s brain is transplanted into Owen’s body. The rest of Bruce’s brain dies in Bruce’s body, but Browen wakes up with Bruce’s memories, does a good imitation of Bruce’s characteristic actions, and insists that you call him Bruce. Are you willing to treat him as if he were Bruce?
Suppose next that Bruce as well as Browen survive the brain transplant operation, and both have Bruce’s memories and both claim to be Bruce!
Here, it would seem, Browen’s claim should be rejected—since the half-brained Bruce is a “closer continuer” than Browen of the single Bruce who existed before the operation.3
This notion of “closer continuity” helps explain the sense in which the American Constitution remains continuous despite periods of unconventional activity. During these periods, the normal rules governing relationships between different institutional components suffer severe disruption. By the end of the unconventional transition, the appearance of American government may differ as radically as Browen from Bruce. Yet, so long as the old government has died, the new one is the “closest continuer” despite its unconventional pedigree.
Imagine, for example, two governments claiming authority in North America in 1870. One of them, USA, had managed to maintain the Constitution of 1860 perfectly intact. Since the second one had gone through all the unconventional processes of Reconstruction, I call it RUSA. On this scenario, USA would have had a better right than RUSA to assert continuity with the Founding Fathers—just as the half-brained Bruce would have been a “closer continuer” than Browen.
But, of course, USA was not in existence in 1870. There was only RUSA, a creature like Browen—one that maintained many institutional memories of the first republic, one that acted in ways reminiscent of USA. Granted, the shift from USA to RUSA didn’t occur according to preexisting legal rules and principles; but at every moment during the transition, there were people in Washington claiming authority as President, Congress, and Court, and they were regularly redeeming these claims by electoral appeals to the People.
RUSA, in short, had deep institutional connections with USA and was the “closest continuer” remaining in existence. Moreover, its genesis was consistent with many of the fundamental principles of dualist democracy that gave the earlier republic its constitutional identity. Shouldn’t we recognize it as continuous with the earlier republic despite its unconventional creation?
Especially when the Republican break with Federalist principles revealed deep weaknesses in the foundational premises that had originally given meaning to Article Five. As we have seen, the Founding system presupposed answers to two questions that went to the very heart of American constitutional identity: Who are “We the People” anyway? What institutions best express our considered judgments?
On the first question, the Federalists supposed that Americans could express themselves as a People only if they managed to speak in the accents of both nation and state: the new national center was the only place that could propose a re-vision, but the states were the only ones that could ratify the proposed amendments.
On the second question, the Founders had simply adopted the English answer: The People expressed themselves in deliberative assemblies—like the House of Commons or the great Convention-Parliament that codified the meaning of the Glorious Revolution. While Presidents and Justices might play important roles in normal politics, Article Five banished them from the scene when the People were to deliberate on constitutional fundamentals.
These answers made sense in the aftermath of the Revolution, but they did not endure the destruction of the early republic in civil war. Reconstruction Republicans denied the authority of the white Southern states to reject the mandate for the Fourteenth Amendment earned through national elections. Two generations later, Franklin Roosevelt advanced a similar critique of Article Five. Only this time it was big business, rather than Southern whites, who threatened to use their power over state legislatures to veto the People’s will as expressed in a series of national elections.
The Founders’ exclusive focus upon deliberative assemblies was also challenged during Reconstruction and shattered during the New Deal. Roosevelt’s plebiscitarian use of the Presidency marks a decisive breakthrough, but it built on generations of constitutional politics, including the remarkable efforts by Presidents Lincoln and Johnson on behalf of the Thirteenth Amendment.4 Unlike their eighteenth-century predecessors, modern Americans treat Presidential elections as a principal forum through which they can engage in mobilized debate and decision on our future as a nation.
Without this kind of unconventional creativity, it is hard to see how Americans could have democratically transformed themselves from a decentralized Union of white men to a Nation of all races and creeds whose government—on both federal and state levels—is actively engaged in assuring a better life for all citizens.
Nor is there reason to suppose that Americans have reached the end of history. Future crises await. As established legitimacies disintegrate, we will once again glimpse the ultimate question: Shall we let the entire enterprise go under, or will we creatively adapt ongoing structures to sustain and renew the collective sense that the People do govern in America?
But I refuse to look too intently into the crystal ball—not because it is blank, but because it is too easy to conjure up crisis scenarios. Different scenarios expose existing institutional patterns to different strains and stresses. Rather than play the prophet, it makes more sense to cast a critical eye on the existing regime. Sixty years have passed since the New Dealers transformed the basic structure of American government. What has become of these great Rooseveltian precedents?
Founding precedents run deep. The New Deal experience was seared into the consciousness of an entire generation. When citizens of the modern republic made their own efforts to gain higher lawmaking authority, it offered them an established language and process within which to proceed. What can happen once, can happen twice. If Roosevelt could inaugurate a new era of constitutional law through Presidential leadership, why not his successors?
Efforts to reenact the Roosevelt scenario propelled the founding precedent forward in time. It also precipitated further precedents that refined, and transformed, earlier meanings. The 1980’s provide a paradoxical example.5 While President Reagan challenged New Deal liberalism, he used Rooseveltian precedents to make the effort. In particular, the Reaganites failed to make a serious Article Five effort to repudiate the activist welfare state through formal amendments. Instead, the 1980’s proved to be a variation on the transformative themes set out in the 1930’s.
By electing Ronald Reagan in 1980, the American people used the Presidency much as they did in 1932: as a constitutional signal, authorizing our representatives to place a new subject on the agenda of fundamental political debate. Ironically, this subject was nothing other than the continuing validity of New Deal liberalism, as it had been elaborated during the preceding half-century.
In choosing Ronald Reagan over Jimmy Carter, the American people had not authoritatively repudiated New Deal Democracy. But as in 1932, Americans were willing to elect a President with enormous charm who was transparently eager to challenge fundamental aspects of the constitutional legacy. The question was whether Reagan would use the Presidency in the Rooseveltian manner to lead the citizenry to redefine their fundamental relationship to national government.
The parallels between Roosevelt and Reagan continued into their first years in office. Reagan won early Congressional support for epochal tax legislation that threatened to deprive the activist regulatory state of the resources required to remain credible. By radically reducing tax rates on the rich, the reform also opened up a debate on the legitimacy of the redistributive activities of the activist state.
Reagan’s early triumphs were especially impressive given the political composition of the Congress. While Republicans won control of the Senate for the first time in a quarter-century, the Democrats remained dominant in the House. Despite this, Reagan managed to convince enough of them to jump on the bandwagon. Could the Republicans sustain their momentum in the next election by wresting control of the House from their opponents?
Here is where the Presidentialist scenarios diverge. Reagan failed to break out of the normal “off-year” election pattern—the Republicans moved up from 53 to 54 seats in the Senate, but fell from 189 to 167 in the Democrat-dominated House.6 This failure undermined Reagan’s short-term capacity to push more transformative initiatives through Congress. It also forced a basic question to the center of the stage: As the American people began to consider the “Reagan Revolution” more soberly, perhaps they would not find its leading principles worthy of their support?
To put the point in Article Five terms, suppose a second constitutional convention had met in Philadelphia upon the request of two-thirds of the states, but the assembled delegates failed to agree on amendments and dissolved in disarray. We might call such a case a failed constitutional proposal. Reagan’s failure to repeat Roosevelt’s “off-year” triumph raised a similar possibility within the evolving model of Presidential leadership.
The President’s smashing electoral victory of 1984 did nothing to resolve this question. Reagan’s personal triumph was of Rooseveltian proportions, but Republicans failed to win a breakthrough in Congress—the House remained safely in Democratic hands, and the number of Republican Senators dropped from 54 to 53. In contrast, the New Deal landslide of 1936 left only 16 Republicans remaining in the Senate and 89 in the House.
Numbers tell only part of the story. More important is what the New Dealers did with their majorities. Neither President Roosevelt nor the New Deal Congress remained content with their early triumphs of the First Hundred Days. When the Court struck down key initiatives, the New Dealers took up the constitutional challenge in landmark legislation like the Labor Act and the Social Security Act. In contrast, the Republicans’ failure to sweep Congress meant that their transformative promises went unredeemed. Reagan’s tax reform simply generated massive budget deficits, as Congress refused to scale down government aspirations to match the tax cuts. As the years proceeded, the kind of escalating confrontation between the “political branches” and “preservationist Court” simply did not occur—at least when measured against the benchmark of the Roosevelt years.
The contrast became starker after the elections of 1986, when the Administration lost its majority in the Senate. By this stage, the New Dealers were already sealing their constitutional triumph through a series of transformative appointments to the Supreme Court. But despite the vastly different fate of his political effort, Reagan was trying to follow the Roosevelt example—nominating first Antonin Scalia and then Robert Bork to the Court. If allowed to continue, this pattern of nomination would have predictably culminated in a new series of Darby-like opinions—with the New Republican Court of the 1990’s condemning the “era of Roe v. Wade” with the same ferocity as the New Deal Court condemned Lochner v. New York.
But it was not to be.
Before moving into the details, consider the challenge confronting any Administration that seeks to reenact the Rooseveltian precedent.
The Court is a conservative institution. The Justices are surrounded by a thick web of case law that defines a world of constitutional meaning.
The world turns as time moves on. New problems force new understandings of established principles to the fore; the arrival of new Justices slowly changes the balance of opinion. Clusters of new decisions provide perspectives that challenge older principles and decisions. And so forth.
For present purposes, only two aspects of this normal evolutionary process are important. The first is the time frame: large changes typically occur only over the course of twenty or thirty years, or more. Second is the extent to which the overwhelming majority of lawyers and judges—especially the most successful ones—are committed to the ethos of interstitial change. This commitment is ingrained in decades of habitual practice, in which clients and courts reward lawyers who make tightly contextualized judgments, and punish those who deal in sloppy abstractions and broad-brush analogies.
If, then, a President is intent upon reenacting the Roosevelt precedent, he must be very careful in his appointment practices. It will not suffice to nominate distinguished professionals who have vaguely supported the President and his party in the past—such Justices will find it far too easy to relapse into their ingrained habits of interstitial adaptation.
He must use his opportunities to advance a different kind of Justice to the bench. As Roosevelt’s practice suggests, constitutional visionaries can come from three different backgrounds. They may be politicians, like Hugo Black, who have not spent most of their careers parsing cases for clients and courts. They may be leading lawyers in the executive branch, like Stanley Reed or Robert Jackson, who have been spearheading the President’s legal campaign in the courts. Or they may be legal academics, like Felix Frankfurter or William Douglas, who have devoted much of their lives to a spirited jurisprudential critique of the old order. (Or they may be shaped by two or three of these molds.)
For a transformative strategy to succeed, it is not enough that the Presidency be allied with the same set of ideological forces for a significant period of time (determined by the mortality rate of sitting Justices). Presidents must be so interested in constitutional transformation that they are willing to sacrifice other, shorter-term, objectives. First, they must resist the temptation to use the Court as a source of high-level political patronage. Lots of the Presidents’ political allies dream of crowning their careers with a Justiceship—or they may, more altruistically, wish to win a seat on the Court for one of their own clients. But the faithful servant with the most powerful patronage claim may not be deeply committed to the Presidency’s transformative project. If appointed to the Court, he or she will only delay the day of constitutional triumph.
A second, and yet more compelling, countermotive is the President’s interest in his own reelection. Supreme Court nominations provide symbolic rewards for crucial electoral groups. In the nineteenth century, this meant a lot of appointments from swing regions of the country. Nowadays, the appeal is to women and to ethnic, racial, and religious groups.
This motive is clearest in the case of Presidents who have no compelling transformative objectives. Consider Eisenhower’s appointment of William J. Brennan. As the President considered the replacement of Sherman Minton in the summer of 1956, his November reelection campaign wasn’t very far from his mind. Nominating a Catholic Democratic state judge from New Jersey was simply good campaign strategy—maximizing the chances of carrying Brennan’s closely contested home state, and appealing to Democratic Catholics throughout the North. Next to these straightforward calculations of normal politics, Brennan’s legal views were distinctly secondary.7
A similar calculus is visible even in more transformative Presidencies. Take the case of Sandra Day O’Connor, President Reagan’s first appointment to the Court. While she would have been disqualified if she had declared the liberal Brennan as her role model, ideological purity was hardly the President’s first concern. By nominating the first female Justice in the Court’s history, Reagan was appealing to a crucial electoral constituency that tended to favor the opposing party disproportionately.
The contrast with Reagan’s second term couldn’t be plainer. Neither Antonin Scalia nor Robert Bork owed their nominations to the juicy mix of tribal and regional calculation that looms so large in normal politics. Reagan wanted to place them on the Court for the same reasons Roosevelt chose Felix Frankfurter and William Douglas. Like these New Dealers, Scalia and Bork were legal academics who were able and willing to write transformative opinions that might consolidate a newly ascendant constitutional order.
But there was a crucial difference. When Roosevelt nominated Frankfurter and Douglas, there were 69 Democrats in the Senate.8 If there had been 69 Republican Senators when Robert Bork was nominated, does anybody doubt he would be on the bench today?
This is too narrow a way of putting the point. If the Reagan Revolution had swept the country in the way required to win such sweeping majorities in Congress, the nominations of Scalia and Bork would have been crowning notes in a triumphalist chorus coming out of Washington. Along with a new breed of legal intellectuals on the bench, the Reaganites in Congress would be enacting new framework statutes elaborating upon their earlier assaults on the activist welfare state.
Instead of functioning as part of a larger constitutional process, the nominations of Scalia and Bork looked more like clever stratagems by an ideological Presidency to transform the Constitution without gaining the kind of broad and deep support required by dualist principles. In the case of Justice Scalia, the gambit succeeded since the Republicans still controlled the Senate; but when President Reagan nominated Bork after the Senate went Democratic in 1986, it is hardly surprising that his transformative nomination went down to defeat.
The next move was the President’s and it was crucial. Reagan could have responded by nominating a second constitutional visionary who, like Bork, had made his career as an eloquent critic of the modern Court’s jurisprudence. If the Senate had rejected this nominee as well, the stage would have been set for a serious struggle during the election of 1988. The Republican candidate for President could have made the Senate’s obstructionism a central part of his electoral appeal; his Democratic opponent might have praised the Senate’s defense against extremism. In the course of this debate, the definition of “mainline” constitutionalism would have been revised—in ways difficult to foresee.
But Reagan chose to evade this public confrontation. Like others before him, the President recognized that interbranch struggle might only reveal the shallowness of his support. Rather than provoke a sustained constitutional debate with another Bork-like nomination, he chose the path of normal political accommodation.
The nomination of Anthony Kennedy was more important for what it wasn’t. Kennedy was vaguely conservative, but there was nothing about him that suggested a Bork-like determination to destroy the foundations of existing jurisprudence. The President was offering up a nominee who would engage in the normal judicial adaptations that, over the decades, generate difficult-to-predict constitutional modifications, rather than quick and sharp breaks. The evident relief with which the Senate and the country seized this olive branch helped push the system back into normal mode.
Subsequent events have broadly confirmed that politics has returned to normal. The selection of George Bush as the Republican candidate for the Presidency in 1988 was itself a sign of lost transformative energy. It was difficult to imagine a candidate with feet more firmly planted in the status quo—unless it was the Democratic challenger, Michael Dukakis. Vaguely to the left of an ill-defined center, the Democrat was more of a smart technocrat than a revolutionary reformer.
Against this background, President Bush’s nomination of David Souter was constitutionally appropriate. In sharp contrast to Robert Bork speaking of change at his confirmation hearings, Souter assured the Judiciary Committee that his judicial hero was John Marshall Harlan, the great interstitialist. Sharp and wide-ranging breaks with the past were the last thing he had in mind.
Souter’s selection was not only significant in itself; it reinforced the constitutional meaning of Kennedy’s previous selection. It had been possible to read the Kennedy maneuver as a tactical retreat—buying time for an aggressive return to the transformative strategy with the next judicial opening. But Bush’s decision to follow up with Souter suggested that there was more than tactics involved. His actions revealed a recognition that the Republican Presidency was failing to win a Roosevelt-style mandate to transform higher law.
To some extent, this was also the message of the Clarence Thomas affair. Bush’s nomination continued a great tradition of normal politics—just as Dwight Eisenhower used Brennan, and Ronald Reagan used O’Connor, President Bush used Thomas to appeal to a constituency, black Americans in this case, that was largely in the opposing party’s camp.
But there was also a clever transformative edge to this move. For the first time since Bork went down, the President had chosen a nominee linked to the New Right’s constitutional agenda. Thomas had taken a host of controversial stands as chairman of the Equal Employment Opportunity Commission during the Reagan years. By nominating a black conservative, the Administration was hoping to defend against the liberal Democratic onslaught that had defeated Bork. Did liberals have enough constitutional conviction to transcend the normal politics of race to vote against a black man whose views they abhorred?
During the first round of hearings before the Judiciary Committee, it became clear that the answer was No. The President’s clever politics seemed to be paying off, when his opponents made a tricky move of their own—transferring their attack from the substance of Thomas’s views to his personal morality.
A second round of televised hearings, featuring Anita Hill’s charges of sexual harassment and Thomas’s impassioned counterattack, revealed new weaknesses in the evolving process of Senate confirmation. Millions of television viewers were treated to a carnival reminiscent of the McCarthy Hearings of the 1950’s. Existing Senate procedures were incapable of determining the truth of the charges. Neither accuser nor defender were given the tools—cross-examination, compulsory process—that might have allowed a fair trial of issues of fact. Rather than deferring the matter for the period needed to make dispassionate findings, the Senate rushed to a vote, and Thomas squeaked through without a fair chance to redeem his tattered reputation (as only a scrupulously fair inquiry could have accomplished). Whatever else may be said about the process, it reemphasized the cycles of incivility let loose by Presidential attempts to make transformative appointments without the requisite political support in the Senate and the country.
The election of President Clinton made it even clearer that the Reagan-Bush years would not culminate in a Roosevelt-style transformation. Clinton was not content to stop the Republican revolution in its tracks; although he had won only 43 percent of the popular vote, he aggressively launched a large campaign of his own for universal health care. But this only served to reveal the weakness of public support for large transformative enterprises at present—as did the subsequent failure of the Republican Congress to sustain support for its Contract with America.
Clinton’s Supreme Court nominations, in turn, fit perfectly into this larger political context. His selection of Ruth Ginsburg falls broadly within the category of normal judicial politics. As a pathbreaking lawyer for the woman’s movement, Ginsburg had marked herself out by the moderation of her argument and her success in making interstitial constitutional gains in the courts. While more sympathetic to the liberal landmarks of the Warren-Burger era, she was no left-wing Scalia, intent on bulldozing large blocks of established doctrine. The President’s nomination of Stephen Breyer also suggested moderation. With the opposition party now in control of the Senate, Clinton avoided a rerun of the Bork-Thomas scenarios by appointing a distinguished professional acceptable to key Republican Senators. With every appointment, the transformative thrust of the Reagan years was muffled further.
As the Presidency and Senate were moving erratically back into normal mode, the Court was also measuring the moment. A crucial arena for appraisal centered on Roe v. Wade. The Republican Party, and its Presidential candidates, had run against the Court on this issue time and again. As Presidents Reagan and Bush won popular support against pro-choice Democrats in three consecutive elections, their Solicitors General had repeatedly invited the Court to reconsider Roe. An increasingly mobilized right-to-life movement gave substance to the claim that, in opposing Roe, the Presidents were not engaged in normal political posturing, but expressed the deep convictions of a large number of American citizens.
This pattern of Presidential leadership should, by now, be familiar. But as we have seen, it is not enough for the Presidency to serve as a signaling mechanism; the cause of constitutional reform must repeatedly carry the party to victory in Congress as well as the Presidency before it can claim a mandate from the People of Rooseveltian proportion; only then may the time be ripe for a judicial switch of the 1937 type.
This broader pattern was absent during the Reagan-Bush years. As a consequence, the Republican effort to overrule Roe fell far short of its objective. In the Court’s 1989 decision in Webster v. Reproductive Health Services,9 a narrow majority weakened the particular rules Roe had laid down to protect the pregnant woman’s right to choose. But the two normal appointments of the Reagan years—O’Connor and Kennedy—refused to join Justice Scalia’s call for a root-and-branch repudiation of Roe and the Warren Court jurisprudence it presupposed. By 1992, the Reagan-Bush failure to go to the mat for Bork-like appointments had decisive effect. If Republican Administrations had responded to the Bork defeat by successfully mobilizing nationwide support for further transformative nominations, the 1992 Court would have contained, in addition to Justice Scalia, three more voices urging the decisive repudiation of Roe. This recent wave would have swept along at least two Justices who owed their original appointments to a more distant past—William Rehnquist and Byron White. Just as the third term of the Roosevelt Administration saw the Court demonizing Lochner, the third term of the Reagan-Bush period would have seen a transformed Court demonizing Roe as the great anti-precedent of a new constitutional age.10
Instead, the Reagan-Bush retreat meant that their Administrations’ higher lawmaking pretensions would be assessed by a Court containing three of their own normal appointments, O’Connor, Kennedy, and Souter. In emphasizing the non-transformative character of these appointments, I do not suggest that their decision on Roe was inevitable. The Reagan-Bush retreat had a subtler significance: Rather than leaving Roe’s fate to the gentle mercies of constitutional visionaries, the Court would be dominated by Justices who thought of themselves as distinguished professionals exercising autonomous legal judgment.
What is more surprising, in this bureaucratic age, was the eloquence with which the three Justices undertook their legalistic mission in their famous separate opinion. They insist that it is possible to develop professional criteria for determining whether a “switch in time” is legitimate. What is more, they spoke for a majority of the Court on this central matter.
The opinion11 searched in the right places for legally operational criteria. On its view, only two precedents “from the last century” served as appropriate benchmarks: the New Deal Court’s repudiation of Lochner in 1937, and the Brown Court’s rejection of Plessy in 1954. The test it proposed was straightforward: if Roe’s opponents could establish a compelling analogy to the situation obtaining in 1937 or 1954, the three Republican legalists were prepared to join the Scalia group in another “switch in time”; if not, not. This is, of course, precisely the approach this book means to encourage.*
The timing of Casey was no less significant than its content. It only took the vote of a single one of the Reagan-Bush professionals to create a majority for overruling Roe. And if this had occurred, the election of President Clinton would have generated another bitter round of appointment politics. Since both the President and the Democratic Party were committed to freedom of choice, Clinton’s judicial nominations would have catalyzed a mighty struggle in the Senate. If pro-Roe nominees made it to the Court (on the first or the nth try), the result would have been a decade of jurisprudential crisis as a new 5-to-4 majority overruled Casey’s 5-to-4 overruling of Roe—leading perhaps to an effort by the next President to reverse the reversal … The Court’s opinion called a halt to this degeneration into normal Presidential politics, and gained constitutional weight precisely because it came from Reagan-Bush appointees. Rather than a dying gasp of the old order, it was the distinguished professionals of the present who were declaring that, unlike 1937, the time was not (yet) ripe for a fundamental break with the past.
This declaration will not end the political strife surrounding the abortion question—nor should it. But it put the participants on notice that Roe will be overruled only if the conservative movement mobilizes more successfully in the 1990’s than it did in the 1980’s. In the fullness of time, the American republic will undoubtedly go through another successful effort at radical redefinition and renewal. But it will occur only on the basis of broader and deeper support amongst the People than the Republicans have thus far managed to generate.
Constitutional law lives on many levels—as a generator of political meaning for the general public, as a positive set of commands for politicians and bureaucrats, as an ongoing professional discourse for the legal community.
I have been deferring Casey’s contribution on the last front because it is inevitably more provisional, opening lines of argument for further professional critique and development.
In this spirit, I have problems with parts of the Court’s analysis. Here is the meat of its discussion of the “switch in time”:
The Lochner decisions were exemplified by Adkins v. Children’s Hospital, in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel Co. v. Parrish signaled the demise of Lochner by overruling Adkins. In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom in Adkins rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. As Justice Jackson wrote of the constitutional crisis of 1937 shortly before he came on the bench, “The older world of laissez faire was recognized everywhere outside the Court to be dead.” … Of course, it was true that the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss; but the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law.12
This discussion trivializes the dominant concerns of early-twentieth-century jurisprudence. The Lochner era was not based on a simple misapprehension of “the facts.” First and foremost, it was concerned with the preservation of values—especially the very value of liberty that Casey also reaffirms.13 When the New Deal Court repudiated Lochner after 1937, it was repudiating market freedom as an ultimate constitutional value, and declaring that, henceforth, economic regulation would be treated as a utilitarian question of social engineering.
Such a paradigm shift represents a constitutional change of the most fundamental kind. In Robert Jackson’s words, it signifies the disintegration of “[t]he older world of laissez-faire.”14 For the constitutional lawyer, this world was constituted by interlocking assertions of fact and value that supported a complex pattern of legal doctrines. When Jackson proclaimed the “death” of such a world, he was doing far more than quibbling with a few facts, however fundamental. He was doing the same sort of thing that Mr. Justice Scalia would dearly love to accomplish today: sweeping away an entire world of argument that had been dominant in the preceding era.
Once we move beyond the Court’s superficial characterization of the 1930’s, its similarities to the 1990’s become unmistakable. Both in the 1930’s and the 1990’s, the Court was called upon to assess the durability of a constitutional world built up by a generation and more of juridical effort—each world dedicated to the protection of a (different) conception of liberty (as well as other values). During both decades, the Justices confronted powerful political voices denouncing the legitimacy of the established world—urging the Justices to allow the political branches a much freer hand in “balancing” the competing interests at stake. During both decades, they were obliged to confront the question whether the old world was dead, or worthy of continued preservation.
The majority points to a deeper difference, however, when it quotes Jackson’s remark that the death of laissez-faire was “recognized everywhere outside the Court.” Here the emphasis is on the Old Court’s intellectual isolation, not its erroneous factual findings. Even more interesting, when the Justices restate Jackson’s point, they correct its exaggerated triumphalism: rather than repeating Jackson’s assertion that the bankruptcy of laissez-faire was “recognized everywhere,” they are more circumspect: “the Depression had come and, with it, the lesson that seemed unmistakeable to most people by 1937, that the [Old Court’s] interpretation of contractual freedom … rested on fundamentally false factual assumptions.”15
This more cautious formulation is entirely justified. Alf Landon won seventeen million votes in 1936, many of them from firm believers in the moral economy of laissez-faire. Nor was the “death” of laissez-faire recognized in all philosophical or economic circles. Like most such obituaries, Jackson’s was vastly premature. Rather than waking up one day to discover that the old order had “died,” the Supreme Court of the 1930’s was called upon to confront a contestable question of judgment: Was the bankruptcy of Lochner’s jurisprudence “unmistakeable to most people”?
This was also the ultimate question in 1992, when the status of Roe, and the constitutional world that made it legally plausible, was called before the bar. Rather than trivializing its problem, it would have been better for the Justices to confront it squarely: Had the Reagan-Bush Presidency, like its New Deal predecessor, established the illegitimacy of Roe as “unmistakeable to most people” by engaging in a lengthy contest with the Old Court, carrying the country and Congress in support of a legislative framework to protect the human fetus, and making a triumphant series of transformative judicial appointments who ushered in a new age of constitutional understanding?
To ask this question is to answer it—the Justices were on sound ground distinguishing the Reagan-Bush years from Roosevelt’s. The weaknesses of their analysis should not blind us to the soundness of their judgment. Thanks to Casey, the institutional order at the end of the Bush Administration differed radically from the pattern arising in the wake of Roosevelt’s precedent-shattering third term. Rather than all three branches proclaiming the dawn of a new era, the Reagan-Bush Administrations retire from the scene with the Supreme Court reaffirming the need for continuity with the recent constitutional past.
We have returned to normal politics. This does not mean that the President and Congress have nothing important to do with their time. Though no political party or movement has mobilized the energetic and sustained support of the People for its cause, a lot remains on the agenda: balancing the budget, comprehensive health care, social security, and so forth. Similarly, the Court will be constantly called upon to revisit the past as it seeks to preserve the People’s constitutional commitments—how to integrate the principles of the Founding, Reconstruction, and the New Deal into a compelling whole that makes sense of our present predicaments? Reasonable judges will come up with different answers—and we should expect the dominant answers to evolve as they are exposed to ongoing professional critique and the lessons of practical experience. But the watchword here should be evolution, not revolution. It is wrong to suppose that the judges can play a vanguard role when the People themselves are silent. It is more than enough for them to try to preserve the achievements of the past in ways that do them justice.
My next volume, Interpretations, will try to clarify the judicial challenges that lie ahead. But I want to end this book with some reflections on the higher lawmaking lessons we may draw from our recent experience. The retreat from the Reagan years should not lull anybody into complacency about the Presidency. While I can’t predict the date or the cause, I am certain that some future President will once again claim a mandate from the People for radical constitutional change; and that the citizenry, Congress, and the Court will be obliged to take the measure of these claims. We have not heard the last of Franklin Roosevelt’s Constitution Day Address.
When that day comes, the Reagan-Bush years should set off a warning signal, alerting us to the dangers lurking in the Rooseveltian legacy of transformative judicial appointments. Indeed, it should suggest the need for serious higher lawmaking reform before the next plebiscitarian Presidency overtakes us.
After enumerating the disadvantages of the Rooseveltian system, I sketch an agenda for reform. Granted, it will take time to alert the larger public to the dangers of the status quo, but it is never too soon to start the ball rolling.
I want to revive a conversation begun in 1937. Recall that Roosevelt’s leading critics responded to Presidential court-packing by urging a formal revision of Article Five. Only the “switch in time” allowed the President and Congress to terminate the discussion inconclusively. Once the Court began to uphold the framework statutes of the New Deal, it was easier for the politicians to relax and let Roosevelt replace the Old Court gradually through a series of transformative appointments. But as we have accumulated experience with the use and abuse of the Roosevelt precedent, it increasingly looks like his critics had the better idea. The evolving practice has grave deficiencies as a method of democratic change.
Under the classical system of Article Five amendment, a formal proposal comes early in the process. While a textual statement of principle hardly eliminates ambiguity and confusion, it does provide a focus for democratic discussion.
Contrast the studied ambiguity of modern practice. Whenever the President makes a nomination to the Court nowadays, he does so under the shadow of the precedents of the Roosevelt and Reagan years: Is he embarked on a systematic effort to jolt constitutional law into a new direction? It will often pay for the President to deny this intention even if he harbors it—since it is usually much harder to gain Senate consent for a constitutional visionary than a distinguished professional.
Presidential denials will predictably fail to convince. Skeptical critics will search frantically through the candidate’s record, looking for tell-tale signs of the candidate’s revolutionary intentions. In response, Presidents may come up with “stealth” nominations, who may harbor transformative ambitions but are so undistinguished that they have never voiced these sentiments in public.
Even if the President resists the “stealth” temptation, and nominates a committed constitutional visionary, the resulting confirmation struggle can generate a great deal of smoke. The nominee may bob and weave, while critics rip his comments out of context. In the end, the nominee’s true views may be lost in clouds of rhetoric. They will be deflected further by his personal style, charisma, and frailties. A graceful television presence may conceal an unattractive constitutional vision. Or opponents may stoop to character assassination. The substantive issues at stake will soon be lost amidst the mud-slinging—only to reemerge if the candidate makes it to the Court.
Under the classical system, an amendment must surmount a formidable set of institutional barriers on both the national and state levels. Compared to this obstacle course, the modern practice of Presidential leadership is relatively insubstantial.
In coming to this judgment, I do not underestimate the rigors of the modern system. A single transformative appointment is not the functional equivalent of a constitutional amendment. As we have seen, it took Roosevelt many appointments, and many elections, before the Court consolidated the New Deal revolution. During periods of normal politics, no single party may dominate the Presidency and Senate long enough to reenact Roosevelt’s precedent. Moreover, even potentially transformative Presidents often have political incentives to appoint Justices who lack a compelling constitutional vision.
Nonetheless, the New Deal precedent may be abused by future Presidents with far more equivocal mandates than Roosevelt’s. After all, each President’s power to influence the Court depends on the vagaries of death and resignation. A significant number of vacancies may open up during the term(s) of an ideological President who lacks broad and deep support. Given the ease with which Senatorial confirmation battles can obscure the underlying issues, it is just too easy for randomly selected Presidents to revolutionize constitutional law without the kind of popular support required in dualist theory.
Changing the Constitution by changing the Court is also less democratic, especially since the process of gaining Senatorial consent does not invite the mass participation properly required for a new constitutional beginning. Think again about Article Five’s stipulation that our representatives in Washington may only propose amendments, and that a broader debate is required in the states before an amendment can be ratified. While Americans may no longer believe that the states should always have a veto over national political change, this hardly implies that Senate hearings provide an adequate alternative. If the Senate is controlled by the same party as the President, the hearings may serve as a very superficial probe indeed.
Even if a different party is in control, hearings are inadequate. Since concerned participants have little prior notice of the vacancy and the nominee, they cannot mobilize a sustained constitutional debate in the country on the underlying issues. At the very most, they can catalyze a momentary spasm of high interest by seeking to demonize the candidate, focusing as much as possible on personal deficiencies. Once the mud-slinging begins, Senators will be eager to end the candidate’s misery with an up-or-down vote within a few months of initial nomination.
Surely we can do better than this to organize public participation in a process of debate and decision that may, over time, yield decisive changes in constitutional doctrine.
Finally, the Supreme Court is simply not well suited to confront many of the constitutional problems of modern life. While the Justices may transform—for good or for ill—the substance of constitutional rights, they are poorly situated to resolve questions of institutional structure. If some future generation of Americans wants to reorganize the bureaucracy or public finance or reconstruct the foundations of federalism, these tasks cannot be readily accomplished by a series of transformative opinions. There is a need for a broader-ranging set of institutional tools.
Legal focus; institutional weight; popular responsiveness; problem-solving capacity. Looking backward, it is easy to see why these problems did not surface during the 1930’s. Quite simply, the majorities won by the New Deal were unprecedented in American history, crossing all the traditional lines of region, race, and even class. Given the New Deal’s broad support in the country, the President could openly nominate a series of committed visionaries to the Court without generating the pathologies of the Reagan-Bush years.16 We will run into trouble only when Presidents with weaker mandates use Rooseveltian precedents as a springboard for constitutional transformation.
I begin with a modest proposal. At present, a bare majority in the Senate suffices to confirm a Presidential selection. This is too low a barrier. A super-majority of two-thirds would take much of the sting out of the Rooseveltian precedent. No longer could an ideological President with a weak mandate use a slim Senatorial majority to ram through a constitutional revolution. Since the opposition party almost invariably possesses a third of the seats, Presidents could no longer expect to succeed by appointing constitutional visionaries. They would be obliged to consult with the political opposition and select distinguished professionals who would adopt an evolutionary approach to constitutional interpretation. Super-majority requirements have proved their value in modern European systems; we should take these lessons seriously as we reflect on our recent experience.17
But we can and should do more. Indeed, a super-majority requirement might be counterproductive if adopted without more sweeping reforms. Taken by itself, my “modest” proposal would deprive the President, and the nation, of the only method that has yet evolved to permit the expression of the nationalistic aspect of modern constitutional identity. By putting an end to the practice of transformative appointment, it would leave the nation with the state-centered tools provided by Article Five—tools that have repeatedly proved inadequate at the great turning points of the past.
Whatever the weaknesses of present practice, it would be even worse to turn back the clock to the first Republic and ignore the fact that, as a result of the searing experiences of the Civil War and the Great Depression, Americans see themselves as citizens of a nation that is more than a federation of states.* The unconventional responses to these crises establish that the rules of Article Five cannot monopolize our higher lawmaking system. If we hope to move beyond the present practice, we must come up with an alternative that also expresses the modern American understanding that We the People of the United States can express its constitutional will in a process in which the President plays an important role. Rather than ignoring Reconstruction or the New Deal, the challenge is to channel nationalistic, and Presidentially centered, understandings into a better lawmaking structure.
Begin by reflecting on the unsatisfactory character of the Rooseveltian precedent, even when it works without the pathologies revealed during the last decade. Imagine, for example, that some future President and Party once again gains the overwhelming and considered support of the country for some fundamental change in constitutional course; suppose, once again, that the President successfully gains the Senate’s consent to a series of transformative appointments. After a decade of sustained Presidential leadership, supported by overwhelming electoral victories in Congress, a transformed Supreme Court is happily churning out landmark opinions that, like Darby and unlike Casey, unanimously commit it to the new constitutional order adumbrated by the previous activities of President and Congress. Isn’t there something wrong with this pretty picture?
I don’t want to sound querulous: America could do a lot worse when confronting its next great crisis. Nevertheless, the Rooseveltian scenario assigns too active a role to the Supreme Court and too passive a role to the President, Congress, and the voters. Just as politicians in the White House and Capitol Hill are finally earning the authority to speak for the People, they suddenly stop in mid-stream—and hand the job of constitutional articulation over to the Supreme Court. Wouldn’t it be better if President, Congress, and the voters hammered out principles on their own authority, before the Court began to get into the act?
This is, after all, the path taken by Article Five. Under its federalistic procedures, the leading politicians on the national and state levels hammer out a constitutional amendment in the name of the People before the Court steps in. I believe that We the People of the United States should be afforded a similar opportunity—this time using actors and processes that operate exclusively on the national level. Only after providing such a nation-centered alternative can we responsibly close off the existing system of transformative appointment by adding a super-majority requirement.
Before sketching my affirmative proposal, it will help to recall the general outlines of the process we are seeking to regulate.
During normal politics, the center of American politics is occupied by politicians and parties content with interstitial modifications of the existing regime. Speaking broadly, the mass of American citizens look on with detachment, satisfying themselves with minimal forms of civic involvement. While there are many groups devoted to fundamental reform, each wants to transform the system in very different ways, and none can plausibly claim to set the agenda for the mainstream of American opinion.
This is what changes during a constitutional moment. As a result of many electoral victories on many different levels, a broad movement of transformative opinion has now earned the authority to set major aspects of the political agenda.
But a constitutional moment need not ripen into a new constitutional solution. A movement’s success in organizing a broad base of Americans for fundamental change may only lead to a backlash—in which most Americans, after considering the transformative proposal, reject it.
And yet success is always possible. The mark of such periods of constitutional solution is a rare convergence in the language and concerns of leaders in the capital and ordinary citizens in the streets. Ordinary Americans are no longer looking upon their leaders with their usual skepticism. The constitutional rhetoric in Washington resonates in billions of conversations on the job, around the breakfast table, and countless social settings.
Not, mind you, that everybody is happy with the emerging outcome. But there is a broad sense, shared (bitterly) by many opponents, that the People have spoken.
The challenge18 is to design a higher lawmaking system that expresses these distinctive rhythms of popular sovereignty, one that builds on the experiences of nationhood articulated during Reconstruction and the New Deal and consolidated thereafter.
Let us add two institutions into the higher lawmaking matrix. The first is the Presidency: Upon successful reelection, the President should be authorized to signal a constitutional moment and propose amendments in the name of the American people.
When approved by Congress, such proposals would not be sent to the states for ratification. They should be placed on the ballot at the next two Presidential elections, and they should be added to the Constitution if they gain popular approval.
In contrast to the system prevailing under Article Five, each voter will be treated as an equal citizen of the nation. His judgment on the referendum question will not count more if he happens to live in Wyoming than in California. The aim is to register the considered judgments of We the People of the United States.
This proposal is open to many interesting variations. Perhaps we should insist on a super-majority at one or both elections? Perhaps we should disqualify the referendum results if too few voters go to the polls to express a judgment? Perhaps we should change the number and timing of electoral tests?
But for the present, I limit myself to the two basic innovations—Presidency and referendum—and how combining them into a larger system reduces the risks associated with each device.
The constitutional politics of the Progressive era led to the adoption of initiatives and referenda in many states. Experience teaches that these mechanisms have many weaknesses as well as strengths.19
Most important, it is usually too easy to get initiatives on the ballot. Voters are regularly confronted with long lists of unfamiliar proposals and cast their ballots on the basis of hurried reactions to a media blitz. Such charades, remorselessly repeated over the decades, generate well-founded skepticism about cheap appeals to popular sovereignty. Whatever their deficiencies, elected representatives are often more knowledgeable than normal voters about the selfish motives that lurk behind attractive slogans; and they have many political incentives to safeguard the public against excessive factional depredation—incentives that are lacking when the general electorate is invited to make a single up-or-down vote on a complex issue.
Nonetheless, the referendum retains its democratic appeal under the special conditions of constitutional politics—when millions of citizens have indeed been mobilized and confront the political agenda with a rare seriousness. The trick is to design a mechanism for triggering the device at the right time—during the period in which a movement has precipitated a constitutional moment, but has not yet won the authority to enact a constitutional solution. Within this crucial period, a referendum provides both opponents and proponents with a chance to make their case to the country in a fair and focused fashion.
How, then, to design a mechanism that will trigger a referendum at constitutional moments and not at other times?
Here is where the Presidency enters. All Presidents should not be granted the referendum power, since many come into office without anything resembling a mandate. But our constitutional experience suggests that a second Presidential victory is sometimes—not invariably—accompanied by plausible claims that the People are up to something.20
We should not allow the President to design referenda without restraint. An unchecked President could use his proposals for personal or partisan advantage, rather than for expressing considered judgments that might ultimately win the sustained support of the community.
The first check is obvious: Congress should approve the terms of the proposal, probably by a two-thirds vote. But a second check is also important. Call it the test of time. When the President and Congress act, it may be hard for them to identify the likely candidate in the next Presidential race—let alone those in the one afterward. By proposing a constitutional amendment, they will be shaping the agenda of the next two Presidential campaigns in unforeseeable ways. Partisan proposals may prove to be political albatrosses five or six years later, embarrassing the party that originally endorsed them.
The test of time places the protagonists in a position resembling the “veil of ignorance” described by John Rawls.21 Given the difficulty of calculating their partisan advantage, won’t the President and Congress use their new higher lawmaking power to formulate principles that may reasonably gain the considered judgment of their fellow citizens?
Maybe not. No set of rules can guarantee against all abuse. But if I succeed in provoking debate, further analysis will yield improvements in my proposals.22 Even my reform package, as it stands, promises big gains over present practice.
Recall the four weaknesses of the existing system of Presidential leadership through transformative judicial appointments.
Legal focus: If we required a super-majority vote in the Senate for Supreme Court nominees, Presidents no longer would have big incentives to hide their transformative intentions by cleverly selecting judicial candidates. But if they win reelection, they will be able to express their constitutional objectives openly, and in ways that invite focused support and dissent.
Institutional weight: Rather than slipping a number of “stealth” candidates through the Senate, the President would have his transformative ambitions checked by the entire Congress and the citizenry at large.
Popular responsiveness: The President’s opponents would not need to mobilize their supporters in a series of ad hoc and ad hominem campaigns against particular Supreme Court nominees. They would be placed on notice to organize a long hard struggle for the hearts and minds of the American people, punctuated by two scheduled referenda. Their steady and pointed attacks on the President’s proposals, moreover, would require a mobilized defense from the ascendant political movement—leading to the kind of considered judgment that the American constitution should aim to articulate and support.
Problem-solving potential: Constitutional amendments are tools that may be deployed to confront institutional and structural issues that have escaped serious control by the Supreme Court during the modern period.
My proposal bears a strong family resemblance to the classical system described by Article Five. Like the existing procedure, the new one invites a reform movement to frame proposals in the lapidary style of a constitutional amendment; it allows the normal institutions of national government to propose, but not to ratify, the initiative; and it requires national institutions to evidence an extraordinary degree of seriousness before they can place a proposal before the people.
Precisely because of these similarities, my proposal highlights the basic problem with the status quo: the mismatch between modern constitutional identity and the classical forms of constitutional amendment. Modern Americans put their national identity at the center and expect the Presidency to take a leading role in the process of articulating the nation’s future. The classical system puts federalism at the center and assumes assembly leadership over the process. It is no accident, then, that most Americans look upon Article Five as a cumbersome and antique device, rather than as a powerful instrument of constitutional redefinition. If we had a new system that allowed for the expression of the nationalistic side of modern identity, the very existence of the system would renew a practical sense of the efficacy of popular sovereignty.
Consider, for example, how the old federalist system processed the Equal Rights Amendment. On the one hand, Article Five deserves high marks for the way it generated a serious political conversation between the women’s movement and its critics as the proposal was considered in state after state. On the other hand, it has taught us once again the dangers of allowing a veto by a minority of the states to stifle higher lawmaking in this country. While the campaign for the ERA did generate a far deeper and more considered judgment in this country, the outcome was a strong national majority consistently in its favor. Rather than leading to a renewed sense by Americans that the People can govern itself, the outcome was a frustrated sense that the federalist forms had somehow stifled the considered judgment of the national majority. Such frustrations, in turn, feed fixation on the Supreme Court as an alternative forum for constitutional change—rather than trying again to run down a higher lawmaking system that is out of synch with national self-understandings, isn’t it much more important to make sure that solid feminists get on the Supreme Court?
I use the ERA as an example because it is the only recent case in which a popular movement has leaped over the initial hurdle to propose a constitutional amendment. But it should be plain that my reform allows conservative as well as liberal movements to take their case to the nation. While many on both sides will fail to win the crucial referenda, the very exercise will reinvigorate popular sovereignty in America.
We the People can reclaim our power to rewrite the Constitution in ways that express our modern constitutional identities. We can become masters of our own house—if, like the Federalists themselves, we have the strength to revise the higher lawmaking rules to express the evolving rhythms of constitutional politics.
Will the political agenda turn this way any time soon? Certainly, there are signs of dissatisfaction with normal politics, and an increasing tendency to search for structural change—recurring efforts to reform campaign finance, the recent movement for term limits on Congressional incumbents. And certainly there have been widespread expressions of discontent with the process of Supreme Court nomination and appointment. But most leading politicians have not yet traced the problem back to its roots in our obsolescent higher lawmaking system.23
Perhaps this is all to the good, since lawyers are only beginning to confront the problem. After another few years, constitutionalists may have a clearer sense of the plausible range of reform alternatives. At the same time, popular discontent with existing structures may ripen into a broader recognition of their source in our obsolescent higher lawmaking system. As the year 2000 approaches, politicians may be prepared to ask probing questions and legal professionals might be prepared to provide serious answers. Admittedly, this is an optimistic scenario, but stranger things have happened in the life of the Republic.
It is not too early, then, to open up the conversation on a second level. For this purpose, assume a broadening appreciation of the need for reform. Serious political groups come forward with serious proposals to revise the existing system of Presidential leadership: How should they proceed to enact their reforms into higher law?
One might, of course, proceed along the path marked by Article Five. Other things being equal, this is the better way—since it will appeal to the rule-bound part of the legal community and the general public. But, as you may have noticed, our higher lawmaking system is no longer governed by the rule of rules—if it ever has been. It is a law of principles, practices, and precedents. And these sources of law suggest that it is appropriate to look beyond the rules in the present case.
The problem is familiar: federalism—the very problem which led Americans during both Reconstruction and the New Deal to move beyond Article Five. A Popular Sovereignty Amendment would ask three-fourths of the states to cede their formal monopoly over constitutional change. This is something state politicians may well refuse—but not because they are blind to the fact that most Americans are Americans first, and Nevadans or Rhode Islanders second. State politicians are interested parties.
The applicable precedents do not require reformers to play a lawmaking game so dramatically tilted against them. Rather than aiming for an Article Five amendment, the vehicle for constitutional change should be a special statute that I will call the Popular Sovereignty Initiative. Proposed by (a second-term) President, this Initiative should be submitted to Congress for two-thirds approval, and should then be submitted to the voters at the next two Presidential elections. If it passes these tests, it should be accorded constitutional status by the Supreme Court.
The Court’s opinion should track the argument presented in this book. Citing Coleman v. Miller, it should explain that Article Five has failed to accommodate the nationalistic aspect of our constitutional identity ever since the Civil War—leading to the proliferation of amendment-analogues during Reconstruction and amendment-simulacra after the New Deal. While the Court facilitated this process in Ex parte McCardle and Coleman v. Miller, as well as its landmark opinions in the 1940’s, this ongoing exercise at creative adaptation has had its costs—most notably the hyperpoliticization of Supreme Court nominations in the modern republic. Rather than resisting the supplementation of Article Five by the Popular Sovereignty Initiative, the Court should greet it with great relief: After more than a century of struggle, We the People of the United States have managed to give a formal structure to our higher lawmaking capacities—and one that parallels the structures used by Article Five to express the constitutional will of We the People of the United States.
Isn’t there something curious about this proposal? This book has devoted chapter after chapter to exposing the inadequacy of legal rules in regulating the great movements of constitutional law. Having come all this way, isn’t it odd to end with a plea for more rules?
But there is no paradox here. It is one thing to say that rules have not been all-important; another thing to say they are unimportant. Taken by themselves, rules are lifeless things—marks on paper that neither control nor restrain. Once placed within a setting of principles, institutions, and precedents, they can play a useful supporting role.
As in our particular case. Without a dose of rulishness, the dynamic of Presidential leadership threatens basic principles of popular sovereignty. By setting the Presidency into a better structure, we will not only minimize the dangers but gain some advantages generally associated with legal forms. First, and most obviously, there is the question of notice. With the Popular Sovereignty Initiative on the books, future generations will have a clearer sense of the steps they can take to speak for the People through a nation-centered process. No less important, opponents will understand what they can do to defeat the pretensions of the reformers. Prior notice will tend to legitimate the proceedings in the eyes of all concerned.
Especially, and this is the second point, since the Initiative system was not designed by any of the present protagonists. While the rules may well turn out to have deficiencies, at least they were not caused by a partisan effort to manipulate them to present-day advantage.
Third, the rules will make it easier for lawyers, after the event, to identify when a successful constitutional solution occurs and what it means. While the present system of transformative opinions has operated rather well over the last half-century to discharge these functions, the crisp markers provided by a new formalism might help from time to time.
None of this suggests that the Popular Sovereignty Initiative provides a final solution to the problem of constitutional adaptation. Along with the benefits of formalism come its costs. At some fateful time, a movement may arise that will find the forms provided by the Popular Sovereignty Initiative as uncongenial as those provided by Article Five—and yet the People will be heard. The challenge, once again, will be to act unconventionally in ways that allow a serious and ongoing test of the new movement’s pretensions, and that devise credible means for recording its constitutional solutions if they meet with sustained and considered support.
But the fact that rules cannot answer this ultimate challenge does not mean that they cannot answer the particular challenge we presently confront. One of the reasons I end on this formalist note is to emphasize the importance of using all the resources of legal understanding if constitutionalists are to sustain dualist democracy.
But still, it may be insisted, I have not really confronted the truth about rules—one that has been seared into our constitutional consciousness by none other than Franklin Roosevelt:
And remember one thing more. Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. An amendment, like the rest of the Constitution, is what the Justices say it is rather than what its framers or you might hope it is.24
This fireside chat, in the midst of the court-packing crisis, told the realist truth to the American People. So long as we hold to this Truth, my Popular Soverignty Initiative seems hopelessly naive. Why take the trouble to modernize the formal lawmaking system, when the judges can do anything they want with any amendment anyway?
But the Inititative not only includes a new lawmaking system; it also contains a proposal requiring a super-majority in the Senate for the confirmation of new Justices.
This, according to the realist, is even worse—especially if it succeeds in encouraging the appointment of solid professional types to the Court, who might take the task of constitutional interpretation seriously. For the strong realist, these poor souls are the victims of false consciousness. There is no such thing as legal interpretation distinct from political preference: “Everything is politics.” Judges who deny this dictum are blind. At least those who celebrate the essentially political character of adjudication do not suppress the only impulses that could possibly serve as their guide.25
In short: Even if my reforms fulfilled their objectives, they would only yield more lost souls on the bench and new empty formalisms in the text. This is progress?
Yes, but only if we have the strength to question the realist banalities of contemporary legal thought. When Roosevelt used realist rhetoric, he enlisted it as part of a larger battle fought in the name of the People against laissez-faire constitutionalism.
But over the past half-century, realism has transformed itself into an apologia for the constitutional status quo. Rather than allowing us to consider alternatives to the system of transformative appointment, it scoffs at the very notion that judges have an obligation to make sense of authoritative texts. Once this realist premise is conceded, the very notion that the People might give marching orders to their government is excluded a priori: Since the judges will play politics with any text, the only way to change the constitution is to change the judges. The alternative path, described by my Initiative, is simply an illusion.
There is a self-fulfilling prophecy at work: the more lawyers and judges believe in realism, the more they vindicate its predictions by playing politics, and the more it will seem that rule by the People is a hopeless anachronism.
On the other hand, there is the other hand: the more seriously the legal community takes interpretation, the more it will encourage Americans to take the arduous journey down the formal path of higher lawmaking—in the hope that the judges will sustain their textual commitments long after the reformers have left the scene of political struggle.
How then will lawyers and judges respond? With more realism or a renewed commitment to interpretation?
While interpretivists have launched a jurisprudential counteroffensive over the last decade,26 I have been on a different mission here. Though the concept of interpretation certainly can use abstract elaboration and philosophical defense, lawyers and judges do not live in the abstract, but in the all-too-concrete conflicts of the present. In the final analysis, the only way interpretivists will be persuasive is by providing concrete interpretations of the constitutional past—and urging others to join in the effort to make sense of authoritative texts and precedents of our past.
We will not always like what we see. As this project took shape during the 1980’s, it seemed likely that We the People would be published at the same moment that judges like Scalia, Bork, and others would be proclaiming the dawn of a new constitutional order. As a liberal committed to social justice, I was not amused at the prospect of playing into the hands of the Reagan Revolution.
But I was determined to publish nonetheless. The Constitution is not the exclusive possession of those who share my politics. It reaches out to all Americans, conservative as well as liberal, in an effort to find a common language and practice for voicing, and sometimes resolving, disagreements. In elaborating this language and practice, constitutional lawyers are not doing something either better or worse than politics—just different.
Of course, it would be terrible if everybody spent their time worrying about the meaning of the constitutional past at the expense of creating a better future. But there isn’t much danger of this. Americans have never been excessively backward-looking; and this will not change in the computer age. If the Republic is to maintain a constitutional memory, it will continue to rely heavily on its lawyers and judges.
During the 1980’s, this meant that I would not join my fellow liberals on the field of constitutional polemics—castigating the Rehnquist Court and all its works, and insisting that the Warren Court had gotten the Constitution right once and for all. Instead of treating the Reagan Revolution in a presentist fashion, I owed it to my fellow citizens to test the Reagan years against the relevant constitutional benchmarks—in particular, the Roosevelt years. And if the Reaganites had managed to measure up to the Roosevelt precedents, I was determined to tell the truth to my fellow citizens—however painful that truth might be to me.
As it turns out, history has not forced me to this test of civic friendship. Like it or not, the last constitutional moment has failed. We have returned to normal politics. Perhaps in a decade or two, a new generation of conservatives will return and succeed in convincing the American people to make good on the promise of the Reagan Revolution; perhaps it will be the liberals who regain the advantage and make a decisive advance toward social justice; perhaps some radically new movement will establish its higher lawmaking voice by displacing the established left-right axis of current political opinion.
Whatever happens, it will be the task of constitutional lawyers to judge the new movement by the benchmarks of the past—and tell the truth, as best they can, to their fellow citizens. The enactment of a Popular Sovereignty Initiative would ease this burden. By disciplining the pattern of Presidential leadership, it would make it easier for lawyers to judge the moment at which the excited rhetoric of constitutional politics should be allowed to harden into the contours of new constitutional law.
But if, as is likely, the Popular Sovereignty Initiative doesn’t get off the ground, we still owe it to our fellow citizens to confront the lawmaking precedents of the past. These precedents are unconventional, but they provide a key to the American success in sustaining self-government for two centuries. American lawyers have it in their power, over the next generation, to throw away this key—in the name of a false realism that denies the central importance of the past in the formation of the legal mind.
But we also have it in our power to recall the past with a renewed sense of the revolutionary truths it contains—and challenge our fellow citizens to continue the project of popular renewal and redefinition in the crises that lie ahead.
*There is an obvious danger here. Over time, conservatives may use their power in the new system to subvert the revolutionary reforms made previously in the People’s name. This is essentially what happened in the aftermath of Reconstruction—though it took place more gradually, and less inevitably, than is often supposed. See Chapter 8, n. 126. The next volume considers this crucial problem of erosion—and what can be done to solve it—at greater length.
*Since I discussed Brown, and its relationship to Plessy, in my first volume, We the People: Foundations (1991), ch. 6, I restrict myself here to Casey’s characterization of the situation in 1937.
*The nationalistic self-understanding emerging from the Great Depression gained further constitutional depth in the aftermath of the Second World War and during the civil rights revolution. To be sure, America’s experience of total war was very different from its later struggle over civil rights. But the mobilization of civic commitment during both periods ultimately led to the same result—a great enhancement of the typical citizen’s appreciation of the Constitution as an expression of a distinctively national community that binds him to all Americans, independently of the states in which they happen to live. For more on these issues, see my book with David Golove, Is NAFTA Constitutional? (1995).