The Limits of Constitutional Democracy

Jeffrey K. Tulis, Stephen Macedo, Jeffrey K. Tulis, Stephen Macedo, Jeffrey Tulis, Stephen Macedo

• Publisher: Princeton University Press
• Year: 2010
• Print ISBN: 9780691147369, 9780691147345
• eBook ISBN: 9781400836796
• Topic: Law
• Subtopic: Public Law
• Index: Law

Constitutional democracy is at once a flourishing idea filled with optimism and promise--and an enterprise fraught with limitations. Uncovering the reasons for this ambivalence, this book looks at the difficulties of constitutional democracy, and reexamines fundamental questions: What is constitutional democracy? When does it succeed or fail? Can constitutional democracies conduct war? Can they preserve their values and institutions while addressing new forms of global interdependence? The authors gathered here interrogate constitutional democracy's meaning in order to illuminate its future.


The book examines key themes--the issues of constitutional failure; the problem of emergency power and whether constitutions should be suspended when emergencies arise; the dilemmas faced when constitutions provide and restrict executive power during wartime; and whether constitutions can adapt to such globalization challenges as immigration, religious resurgence, and nuclear arms proliferation.


In addition to the editors, the contributors are Sotirios Barber, Joseph Bessette, Mark Brandon, Daniel Deudney, Christopher Eisgruber, James Fleming, William Harris II, Ran Hirschl, Gary Jacobsohn, Benjamin Kleinerman, Jan-Werner Müller, Kim Scheppele, Rogers Smith, Adrian Vermeule, and Mariah Zeisberg.

Part I

WHAT IS CONSTITUTIONAL FAILURE?

1

Constitutional Failure: Ultimately Attitudinal

SOTIRIOS A. BARBER

AS IDEOLOGICAL DIVISIONS WIDEN and continue to weaken the common ground of the nation’s civic life, American constitutional theorists and social scientists have reopened a recurring question: is the Constitution adequate to its ends? Alan Wolfe laments the moralistic populism and public cynicism that has all but destroyed Congress’s institutional integrity and democratic accountability.¹ Sanford Levinson shows how “hard-wired” constitutional provisions like the Electoral College and the composition of the Senate contribute to bad policies and institutional decay.² Ronald Dworkin proposes a theory of human dignity as common moral ground for rescuing American politics from ideological warfare and restoring genuine political debate.³ In the most pessimistic work of this expanding genre, Sheldon Wolin argues that a constitutionalism of “limited and modest ambitions” cannot control a regime whose sources of power are inherently expansive “capital, technology, and science” and whose aims are corporate profits in a global economy and security from terrorism that its economic and cultural expansion provokes.⁴

Is the U.S. Constitution (government under the Constitution) failing, then? In what ways might it be failing? Was it programmed to fail from the beginning, as Wolin suggests? Or is it repairable, as Levinson, Dworkin, and Wolfe assume? These are the first-order questions of constitutional failure: the whether, why, and how of constitutional failure as a present reality. But there are prior questions, including the question of what might be meant by “constitutional failure”—the questions we should debate when deciding whether the constitution is failing. I address parts of this complicated issue here and submit that (1) constitutional failure is at bottom as much or more an attitudinal than an institutional matter, (2) constitutional failure centrally involves a failure to maintain a “healthy politics,” and (3) a successful constitution would provide for the probable failure of formal institutions by equipping its people for the task of institutional reform.

Failure to Do What?

Talk of constitutional failure presupposes a notion of constitutional success.⁵ What, then, is the U.S. Constitution supposed to accomplish? Americans generally assume that their formal constitution aims to secure negative rights against government, to maintain processes of popular choice, and to pursue substantive ends beyond rights and democratic processes. Yet theorists differ on which of these aims to emphasize. Negative constitutionalists including Randy Barnett⁶ and Michael Zuckert⁷ emphasize negative rights over constitutional processes and substantive ends like national security and the general welfare. Procedural constitutionalists like John Hart Ely emphasize democratic processes and associated values and conditions (political freedoms mostly) over goods like national security and prosperity.⁸ Ends-oriented, or, as I prefer, welfare constitutionalists, such as Martin Diamond,⁹ Stephen Elkin,¹⁰ Lawrence Sager,¹¹ Cass Sunstein,¹² and Walter Murphy,¹³ place equal or greater emphasis on preambular ends like the common defense and the general welfare.

A welfarist accepts Madison’s claim in The Federalist that “the supreme object” of any legitimate government is the people’s “real welfare” and that “no form of Government whatever, has any other value, than as it may be fitted for the attainment of this object.”¹⁴ My previous argument for welfare constitutionalism relies on moral readings (in Ronald Dworkin’s sense) of The Federalist and other historical sources, like the Declaration of Independence, the opinions of John Marshall, and the speeches of Abraham Lincoln.¹⁵ My leading point against a constitutionalism centered on negative rights against the state is its inability to explain why reasonable persons would establish a government for the chief purpose of limiting it or why they would establish government if they thought harm from that government more likely than benefits.¹⁶ I claim that constitutionalists who say that all is process cannot imagine, much less identify, a normative process that, like a road to nowhere, is connected in no way to a substantive public good of some sort, like national security or, more broadly, officials who try to do the right thing. Thus, in The Federalist, Madison conceives the procedural concept of checks and balances as a “policy of supplying by opposite and rival interests, the defect of better motives.”¹⁷ Nor can road-to-nowhere proceduralists explain why one process, like deliberative democracy, is better than others, like consulting the Delphic Oracle. Welfarists are thus obliged to submit theories of substantive constitutional ends. Corollary to any such theory would be a theory of constitutional failure or success, and in view of the Constitution’s undeniable features, a welfarist theory of failure or success would accommodate the negative libertarian’s view of failure as chronic disregard of constitutional rights and the proceduralist’s view of failure as institutional breakdown.

Notwithstanding the Constitution’s legal aspect, explicit in Article VI’s declaration that the Constitution is “supreme Law,” welfare constitutionalism emphasizes the instrumentalism implicit in the Preamble: the Constitution as means to ends like the common defense and the general welfare. Though Levinson might not call himself a welfarist, welfarists would agree with him that the Preamble is the Constitution’s most important part.¹⁸ Allowing for all but inevitable and (as we shall see) necessary disagreements about the practical meanings of preambular ends in changing historical circumstances, we can say, as a first approximation, that the Constitution fails to the extent that the government it establishes and the social order that the government both reflects and enables fail to inspire (1) a general sense of progress toward (2) a reasonable version of the ends of government. This definition combines both a consensual or subjective element and a real or objective element: the former refers to what some population believes, and the latter refers to what is objectively true. The public generally has to believe (more often than not and over some specified period of time) that both the country and its elected leaders are headed in the right direction, and observers asking the question of constitutional failure or success have to judge for themselves whether the public is approximately right. This two-part requirement (first describing and then assessing the public’s perception of government’s performance) reflects the responsible government to which The Federalist aspires: government that reconciles the public to what is right—government that educates the public to its true interests.¹⁹ This aspiration expresses itself in practice as a “healthy politics,” and, I claim, a healthy politics is the ultimate test of constitutional success.

The Welfare Theory of Constitutional Failure or Success

A welfarist definition of constitutional failure or success faces at least three problems: in America’s present political climate, a healthy politics seems utopian, and emphasizing ends or policy results seems to depreciate constitutional rights and constitutional institutions. These objections run deep, and though a conclusive response to them is too much to claim, I have attempted one elsewhere.²⁰ Here I can invoke only the presuppositions of everyday life, presuppositions that seem ineluctable. Ordinary political actors take their disagreements about things like fairness and goodness seriously. They assume that particular conceptions of normative ideas can be wrong and that good-faith debate aims to find which side is favored by an unprejudiced assessment of the evidence.²¹ Because political actors assume that the ends of government are real and approachable ends—goods about whose meaning and conditions people can err (with some people erring more than others)—welfare constitutionalism requires consensus on neither the meaning of ends nor the most affordable means. Far from guaranteeing constitutional success—that is, reasonably arguable progress toward real ends—consensus about either ends or means hastens constitutional failure by obviating debate through which error is revealed and progress maintained. This fact argues for a reasonable measure of philosophic and cultural diversity and social experimentation within a single community of interests abstractly conceived—abstract interests, like security and well-being, conceived, again, as real ends about whose meaning the community as a whole and its individual members can err. This diversity should produce disagreement about ends and means—reasonable and civil disagreement, in the ideal—and the value that welfarists must place on reasonable diversity and civil disagreement answers the charge that welfarism is utopian. Though a politics of reasonable and civil conflict is visionary, it is no more so than any other constitutional aspiration, like national security and the general welfare. It is not otherworldly in a way that would make it unapproachable.²²

Nor need welfarism depreciate either constitutional rights or constitutional institutions—at least not functional constitutional rights and institutions. Fallible actors who pursue real ends require institutions for collecting and assessing the evidence of diverse experiences and giving legal form to those conclusions that the evidence favors. Fallible actors require institutions to administer the law and collect the resources that administration requires. They require rights of inquiry, expression, and participation on which public accountability depends and through which errors are exposed and corrected. They require rights of property and personal autonomy prerequisite to the formation and expression of diverse opinions. Clearly, therefore, a constitution devoted to real ends fails to the extent that its government fails to honor negative liberties and maintain representative institutions that permit (as negative liberties do) and enable (as representative institutions do) public debate about the direction and the conduct of public policy.²³ So at least some institutions and negative liberties are integral to the collective pursuit of real goods, and a task of constitutional theory and citizenship is debating which rights and institutions are functional to this enterprise.

Human fallibility, the attraction of real goods like security and well-being, and the resulting case for a reasonable political diversity thus enable us to say that a constitution is successful if the government it establishes maintains arguable fidelity to its terms and arguable progress (relative to resources over the mid- to long term) toward (what all responsible elements of society can regard as) publicly reasonable versions of constitutional ends. Defined this way, constitutional success is marked not by a consensus that reaches from preambular ends all the way down to concrete policies; it is marked by a certain quality of debate, a healthy politics, together with the social preconditions of a healthy politics.

A healthy politics features reasonable differences among political contestants who see each other as moral equals and parts of one community of abstract interests assumed to be real goods. These contestants see each other as engaged in good-faith disagreements about the common good and how to pursue it and about the true understandings and applications of constitutional principles and provisions. The immediate preconditions of a healthy politics include religious moderation (i.e., either the privatization of religious conviction or its subordination to a secular reasonableness); equal political, economic, and social opportunity; a general perception of economic fairness; and realistic prospects for economic growth at the collective and individual levels. This specification of conditions reflects a theory of the ends of government that builds on authorities like Lincoln and The Federalist.²⁴ Writers like Dworkin, Wolfe, Levinson, and Wolin are responding to the erosion of these conditions in America since the 1970s. Though I deny that some of these conditions (especially economic fairness and equal opportunity) are utopian in a strict sense, I concede that they are beyond reasonable expectations, or at least any that I can defend.²⁵ For numerous reasons—environmental, social-psychological, geopolitical—one can doubt also that unlimited economic growth is either possible or productive of human well-being.²⁶ But the question of this essay is what...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Introduction. Constitutional Boundaries
• Part I What is Constitutional Failure?
• Part II How can Constitutional Democracy Contend with Emergency?
• Part III How can Constitutional Democracy Contend with War?
• Part IV How can Constitutional Democracy Contend with Globalization?
• Conclusion. Constitutional Engagement and Its Limits
• List of Contributors
• Index