Popular constitutionalism in the age of Trump

Few things are more gratifying than having a work of scholarship recognized for an anniversary, and I am exceptionally grateful to Anthony Marcum and James Wallner for their attention to The People Themselves. I am still more appreciative of their recognition of the ongoing pertinence of the questions the book raised—which, as both note, go to the heart of what it means to be a self-governing republic.

I coined the term “popular constitutionalism” to capture an idea, one taken for granted at our nation’s founding but lost over time: that final control over the meaning of the Constitution, including power to interpret, remains actively with the community at all times. The history recounted in The People Themselves resurrected this idea and showed how its implementation changed as the nation’s political institutions and culture changed. What began as activity “out of doors”—petitions, parades, crowd action, and such—moved “indoors” as the monarchical systems of colonial America became republican.

As envisioned by its most sophisticated expositor, James Madison, popular control over the meaning of the Constitution would be realized through the new nation’s complex political structure. Rather than rely on the sort of unmediated, unruly popular action that was necessary in a monarchy, the new American constitutional system would channel popular views through a republican government comprising multiple branches at multiple levels—each accountable to the people, each able to sound the alarm on potentially unconstitutional actions, each able to use its powers to obstruct these actions. But the checking and balancing in this scheme was not intended to end debate, and the exercise of an institutional veto was not supposed to be the final word. It was, rather, meant to begin debate, by forcing the contending political powers to push controversial issues back to the community. Separation of powers and federalism were not devices to create “a machine that would go of itself,” as the popular misunderstanding would have it. They were instrumentalities for generating a robust public discussion, initiated and led by political leaders acting for their own reasons, in which (eventually) the community would settle on a view and the losing branch be forced to yield.

Critical to this system’s constitutional engineering is how it makes the people’s different agents in government both accountable and independent: accountable because accountability is the heart of republicanism; independent because room to exercise leadership is indispensable to prevent the republic from devolving into an unmanageable direct democracy, fated to self-destruct (as all such democracies do). The way independence and accountability are balanced then varies from branch to branch, depending on the particular branch’s intended role in the system. Members of the House of Representatives were made directly accountable and subject to frequent elections by relatively small constituencies. Members of the Senate were given greater independence by making them indirectly accountable through selection by their state’s legislature to a larger state-wide constituency, with a long six-years between elections. The President fell somewhere in the middle: accountable to the nation as a whole, but still more indirectly via the Electoral College, and with elections at an interval between the House and Senate. There was similar variety at the state level.

These differences in how officials were chosen and to whom they were accountable mattered, because they gave members of the different departments different political interests and agendas. By then assigning the various branches and levels of government ways to block or obstruct each other, these varied and various perspectives, with their “opposite and rival interests,” could be used to supply “the defect of better motives” in safeguarding the Constitution. This is what Madison had in mind in Federalist 51 when he spoke of connecting “the interest of the man” with “the constitutional rights of the place.” This is how “ambition [could] be made to counteract ambition” to ensure compliance with the Constitution. But the compliance we get is compliance as understood and determined by the sole, final arbiter of its meaning: “the People themselves.”

It’s telling that Madison never even mentions the judiciary in either of the two great essays that explain this theory: Federalist 10 and 51. This is because when Madison and others thought about courts, they did so through the lens of British and colonial experience, which had no doctrine of judicial review but taught that judges needed to be made very independent to immunize them from being influenced by the more powerful political branches in ordinary civil and criminal cases. To be sure, a doctrine resembling what we think of as judicial review had begun to develop in the 1780s. But it was not widely known or understood, and the few who did understand it, including Madison, thought it generally feeble and unimportant.

As the concept of judicial review blossomed and normalized in the 1790s, its potential political significance began coming into focus, and political leaders scrambled to create an appropriate degree of accountability to counterbalance the courts’ strong independence, at least in cases of constitutional interpretation. They found in the Constitution room for a variety of political responses to an overly assertive Court. These include impeaching judges, cutting the Courts’ budget, stripping its jurisdiction, refusing to enforce its mandates, shrinking or enlarging its size, and/or revising its procedures.

All these powers are unquestionably constitutional. All are explicitly authorized or obviously permitted by the text, and all have been used at various times throughout American history. And not by disreputable or failed politicians either, but by some of the most admired presidents and Congresses in U.S. history: by Jefferson and Jackson and Lincoln and the Reconstruction Congress and both Roosevelts. Yet today, just mentioning these devices evokes shrieks of protest. Apparently, the only way to sustain this supposedly weakest branch is by making it the strongest one.

Which brings me to the matter of judicial supremacy. Judicial supremacy is a gloss on judicial review. It adds to the idea that judges can declare a law unconstitutional the idea that their interpretation must be treated as final and binding by everyone else, including not just the rest of government, but also the people. What this means as a practical matter is that all the devices listed above to temper the courts’ independence with a touch of accountability are illegitimate and cannot be used. If we disagree with the Supreme Court’s interpretations of the Constitution, our options are limited to the well-nigh impossible task of amending the text, hoping the Justices will change their collective mind, or waiting for some of them to die or retire in the hope we can replace them with someone more to our liking. Such an idea was utterly anathema to people like Madison, of course—as unrepublican a notion as one could imagine, short of restoring the monarchy. Sure we are a republic, it says, except for our most important laws. Those we leave to nine life-appointed mini-monarchs.

I lay all this out as background for three points I want to make in response to Marcum’s and Wallner’s essays. First, contrary to Wallner’s suggestion, there is nothing “chaotic” about popular constitutionalism. On the contrary, it worked quite well for more than a century and a half. As a historical matter, the Court managed to maintain its authority and play an important role without the prop of judicial supremacy. The rise of judicial supremacy, which took place only in the last few decades of the 20^th century, was not due to “uncertainty inherent in popular constitutionalism.” It was, quite simply, the unexpected emergence of the Warren Court, which offered progressives something they had never had before: an activist Court that shared their views. This led liberals, who had always opposed judicial pretensions to having final say over the Constitution, to flip sides and embrace judicial supremacy. Meanwhile, conservatives, who had unsuccessfully pushed for supremacy since the 1790s, continued to do so—producing for the first time a consensus in favor of allowing the Court this final say. The effects were two-fold. Judicial authority expanded as the Justices gobbled up issues that had formerly been resolved in and through the political process. And constitutional debate shifted from what had always been an argument about who had final say over the meaning of the Constitution. Now that everyone agreed it was the Court, we began instead to argue about something that had never before been an important focus of debate, namely, how the Constitution should be interpreted. The right adopted originalism, the left various versions of living constitutionalism.

Second, contrary to Marcum’s suggestion, popular constitutionalism need not “drastically curtail” judicial review. That could be a consequence, but so might be its expansion: it will depend (as it should) on how persuasively the Court can make its case to the larger community. The irony of judicial supremacy has been that, by making the Court’s word final, it has both expanded and contracted judicial power (by fostering the notion that, if the Court’s word is final, it must exercise it with restraint). But too little judicial review is not necessarily better than too much, so another problem with judicial supremacy is that it has distorted the Court’s role—too much in some places, too little in others. Restoring the Madisonian system of popular constitutionalism puts the choice about the Court’s role back where it is supposed to be: with the People themselves. It makes the Court one more device to foster the public deliberation that is the essence of republican government. Resurrecting popular constitutionalism would change judicial review, in other words, not by fostering more of it or less of it, but by changing when and where it takes place. The Justices could more freely offer their views precisely because their views would be subject to a higher authority in the form of an actively engaged public reacting to efforts by other branches to challenge the Court.

These two points matter because, wherever one sits on today’s political spectrum, it is plain that a wide range of constitutional norms are being tested. The Trump Administration has shown an astounding willingness to cast aside long-established constitutional norms, processes, and understandings to press its agenda. Congress has mostly acquiesced but has pushed back in a few instances—and we may soon see the spectacle of an impeachment. Meanwhile, consistent with the Madisonian design, states have pressed back in various ways.

Hence my third point: The Court will play an important role in resolving these controversies. And it should—just not as a parent settling a spat among rowdy children, or a supervisor resolving a dispute among staff. The Court’s proper role is as a co-equal branch of government—one capable of earning respect because of the way it is uniquely situated within the political system—offering its considered views on what the Constitution permits, forbids, and requires. The losing branch may then choose to continue pressing its case, using its constitutional powers to test the Court’s resolve, and how the American people react will decide the disputes.

As we should. Or, rather, as we must. Recall Franklin’s legendary rejoinder to the woman who asked him, as he left the Philadelphia Convention, what kind of government we would have: “a Republic, if you can keep it.” That comment has never seemed more apt than today