RSS FeedThe Theory of Constitutional Moments
Jack Balkin had an interesting post about the dispute over use of the reconciliation process and the Senate’s vanishing capacity to do important legislative business without it.
[U]sing reconciliation in this case will not fundamentally change the dynamic in the Senate, and it will probably not significantly alter constitutional understandings. We will still have polarized parliamentary style parties in a constitutional system that is not designed for parliamentary government because of its super-majority rules and many different veto points. In an important sense, this is the larger structural problem. The party system has mutated in ways that are inconsistent with existing constitutional mechanisms.
If reconciliation fails, Obama will have to attack the filibuster directly. But even if reconciliation succeeds, the constitutional moment will not have been concluded. The worst, I fear, is yet to come.
Here Balkin is alluding to Bruce Ackerman‘s theory of transformative “constitutional moments,” times of political crisis in which the electorate acts collectively to effect constitutional change through informal, extra-constitutional means. In the current context, Balkin is using the idea to describe a potential confrontation between the President and the Senate over the Senate rules. Those rules live behind the constitutional forcefield of Art. I, § 5, a bulwark for the separation of powers, and an inter-branch confrontation over them could be understood as a constitutional moment akin to FDR taking on the Supreme Court with the court-packing scheme.
I’m not wild about Ackerman’s theory, but I do think it supplies a useful vocabulary in which to frame the historical interplay between politics and constitutional law. The theory is meant to explain the great paradigm shifts in constitutional interpretation that occurred at crucial points in our history: reconstruction, the New Deal, and the civil rights era. For example, under Ackerman’s theory, the constitutional standoff between New Dealers and the Lochner era Supreme Court was resolved by the decisive action of the electorate who sided with the liberals and re-elected FDR with overwhelming support, thereby “ratifying” the New Dealers’ more expansive vision of congressional authority to intervene in the national economy.
The term “constitutional moment” can be useful for historical description—it’s certainly true that there was a kind of jurisprudential paradigm shift in the mid-Thirties, as the Supreme Court broke with old-guard doctrines like the freedom of contract—but I’m not sure Ackerman’s theory achieves much beyond that. In its strongest form, the theory ascribes to these epochal constitutional realignments a force equivalent to that of formal, Article V amendments to the text. An obvious problem here is this: how are you supposed to know when a constitutional transformation has occurred? And how are you supposed to resolve disagreements about the scope of such a transformation? When voters “speak” at the polls, the final tally of their votes does not in any obvious way translate into well-formed propositions of law. There are other criticisms—and plenty of rejoinders to them, I’m sure—but I’ve already taken this detour too far.
I’ll follow up with more thoughts on Balkin’s post later.
UPDATE: Made some needed clarifications suggested by Lee’s comment. Lee is right, of course, that the rules of congressional procedure involved in the filibuster and in the budget reconciliation process are not derived in any way from the Constitution. The point here though is not that these specific political disputes are about constitutional issues, but that they implicate the balance of powers among the branches in a constitutionally significant way. Changes above should clarify that.
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5 Responses to “The Theory of Constitutional Moments”
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I’m confused… my understanding is there is no mention of the filibuster or reconciliation in the Constitution… they are just traditional Senate procedures (the latter being more recent). So changing or abolishing these rules wouldn’t be “constitutional,” unless you’re using the word to indicate “a really big deal,” which would be uncharacteristically imprecise of you!
Separately, I would like to register my annoyance over people (not you) who make no distinction between the reconciliation strategy being discussed a few months ago (i.e. using it for the entire HC bill), and what’s being discussed now (using it to amend budgetary aspects of a bill that’s already been passed through the normal, filibusterable, voting procedure)
You’re right, what I’d written was terribly misleading. Hopefully, for my sake, it was only a matter of clumsy writing and not confused thinking. Thanks for alerting me to it. Changes above should clarify.
I do think the word “constitutional” needs some help. It has too much work to do. We often use it when talking about whether something violates some rule of constitutional law. For example: sure, Mr. President, your plan to waterboard Congress is totally constitutional. But we also need that word to be a simple adjective meaning “of, like, or pertaining to the Constitution.” E.g.: Congress is first among three co-equal branches in the constitutional design. Things get confusing when we talk about “constitutional change.” Does that mean “change permitted by the Constitution”? Or “change to the Constitution”? Or both: “change to the constitutional relations between constitutional branches that is permitted by the Constitution”? See what I mean?
This, by the way, is another example of why it takes so many words to say things in legal language. It’s not that legalese is a foreign language or dialect. It’s that common English usage is rife with ambiguity and vagueness.
[...] post yesterday about constitutional moments was really just an aside to a discussion of Jack Balkin’s post [...]
I can get behind the Congressional waterboard plan.
If the Democrats had any guts they would just say, screw you guys, it’s 50 votes plus Biden for everything. What are the GOPers going to do? Go on TV and cry? You KNOW that as soon as the GOPers are back in the majority that is exactly the rule change they will do.
This is 2010. Dump the arcane rules and create a functional legislative body. Here’s the thing – suppose that whatever majority it takes today today to change a rule somehow comes together and makes a rule that says 100 Yes votes are required to pass anything in the Senate. Is that rule any different from today’s filibuster rule, other than being more crazy?
Go for straight majority. I’ll bet the Dems get a 10 point boost in the polls for showing some guts. David Broder may cry, but who cares?
[...] I thought this Tom Toles cartoon, via Ezra Klein, was a good illustration for the hypothetical in Len’s recent comment. [...]