by Kagro X
Maybe it's a little late in the discussion for me to be covering this ground, but what do I mean when I say that the Bush "administration" and the neo-cons seek to impose a new "constitutional order?"
I'm drawing my terminology from an article by Georgetown University law professor Mark Tushnet, entitled "Constitutional Hardball" (PDF). Tushnet probably defines the term better in the entire book he wrote on the subject, but hey, who's got time for that?
The part you need to know, lifted from the first chapter of the book, follows.
By constitutional order (or regime), I mean a reasonably stable set of institutions through which a nation's fundamental decisions are made over a sustained period, and the principles that guide those decisions. These institutions and principles provide the structure within which ordinary political contention occurs, which is why I call them constitutional rather than merely political.
Both institutions and principles constitute a constitutional order. On the institutional level, a constitutional order extends well beyond the Supreme Court and includes the national political parties, Congress, and the presidency. Indeed, as I argue in chapters 1 and 2, the constitutional principles articulated by the Supreme Court cannot be understood except in the context of the institutional arrangements prevailing in the national government's other branches. For me, a constitutional order is more like the small-c British constitution than it is like the document called the United States Constitution. And, just as scholars of constitutionalism have found it productive to think about the British constitution, so I think it productive to think about constitutional orders in the United States that go beyond judicial doctrine and the written Constitution to encompass relatively stable political arrangements and guiding principles. [Notes omitted.]
Get it? Good.
Now, how do constitutional orders get changed? Tushnet argues, and I find it persuasive, that such changes are made in the modern era through the practice of what he calls "constitutional hardball,"which:
consists of political claims and practices -- legislative and executive initiatives -- that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.3 It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold.
The explanatory footnote (3) from the article:
By this I mean the "go without saying" assumptions that underpin working systems of constitutional government. They are hard to identify outside of times of crisis precisely because they go without saying. (An alternative term would be conventions.)
Examples? Tushnet offers up a few that I think will fill in the blanks. One was the recent judicial filibuster/nuclear option controversy:
The Democrats' actions were clearly within the bounds set by the Senate's rules, and the Constitution expressly authorizes the Senate to adopt rules to govern its operation. Republicans respondied to the filibuster by developing an argument that it was unconstitutional because it interfered with the ability of the Senate to decide, by majority vote, whether to consent to a nomination. I believe that argument to be strained ... . [but] The Republicans' arguments ... were within constitutional bounds as well.
That is to say that two not-implausible interpretations of constitutional understandings regarding judicial filibusters were in competition, and whichever prevailed would likely stand as the commonly accepted interpretation into the foreseeable future.
The successful effort in Colorado, and the parallel one in Texas, to revisit districting decisions made after the 2000 census is similar in structure. Legislatures have an undoubted right to alter district lines as often as they want. The case for doing so in Colorado and Texas was not frivolous; in each state the first set of districts was devised not by an elected legislature but by a court acting after the state legislature had failed to act. Still, in each round of districting since the 1970s legislators have generally taken the first set of districts to be fixed until the next census or until they were ordered to draw a new set of districts by a court. The Republican actions in Colorado and Texas are constitutional hardball because they are inconsistent with what seemed to be a settled pre-constitutional understanding. The Democrats' response in Texas -- absenting themselves[Notes omitted.]
His third example: Clinton impeachment. I think we all know why. On the one hand, impeachment amounts to what the House says it does. On the other, that shouldn't really be the sole criterion.
Get it? Good.
Next important point:
Constitutional hardball has another characteristic. The stakes are quite high when politicians play it. The Democrats' filibusters are designed in the first instance to prevent the President from transforming the federal circuit courts by appointing a large number of judges whom the Democrats regard as far too conservative for the nation's good. The Republicans' districting efforts are designed to increase the number of seats that Republican candidates are likely to win, thereby enhancing the likelihood that Republicans will retain control of the House of Representatives through the next census and ensuing redistricting.
Tushnet goes on at that point to discuss this characteristic with regard to the Clinton impeachment, and arrives where most of us did at the time -- that it was pursued primarily to weaken Clinton, or in the case of a successful impeachment, Gore. He doesn't go as far as I have -- that is, concluding that Republicans may also have had in mind the weakening of the institution of impeachment itself.
More good stuff:
Here, Tushnet describes Balkin and Levinson's entrenchment process, which focuses on the entrenchment in the judiciary -- a process I think we all understand from the recent judicial nomination controversies. A federal judiciary stocked by Bush with ultra-conservatives with lifetime appointments will necessarily lead to a "change [in] the understandings of the Constitution that appear in positive law."
But Tushnet believes entrenchment is something that can take place across all institutions of government, not just in the judiciary. And that's the sort of change that can redefine the constitutional order. We're already seeing entrenchment in the judiciary, of course. But we're also seeing it -- via the new and aggressive "constitutional hardball" being played in the redistricting game -- in the Congress as well.
And more alarming still, we may be seeing it -- via the new and aggressive "constitutional hardball" being played in the "unitary executive" and "inherent powers" game -- in the executive branch. Granted, such powers, if ratified, would be available to any occupant of the White House, Republican or Democrat. So in that sense, it's not strictly a partisan entrenchment, although it's not difficult to envision Republican administrations using them somewhat more aggressively, shall we say, than Democratic administrations.
So, why does all this make me impatient with the "Wait til November" crowd?
The stakes are high when politicians play political hardball, that is, because the politicians believe that the winners might end up with permanent control (meaning, control for the full time-horizon of today's politiicans) of the entire government. The winner of constitutional hardball takes everything, and the loser loses everything.
But, really, what's "everything?"
One way to distinguish periods of ordinary politics from periods of transformation is that during the former pre-constitutional understandings are taken for granted, whereas during the latter such understandings are brought into question. The idea is that the institutional arrangements characteristic of a particular constitutional order -- characteristic, that is, of a specific period of ordinary politics -- are the presuppositions accepted by all politically significant actors in that period, whereas the whole point of constitutional transformation is to alter the previously taken-for-granted institutional arrangements.
What sort of things are we talking about, then? What sort of pre-constitutional understandings are currently -- or up to just a few weeks ago, let's say, were -- taken for granted, but are now being brought into question? Well, the presidnet's alleged "inherent power" to order warrantless domestic surveillance, for one. But there's much more, too. For example, the assumption that "preclearance" by the Department of Justice's Civil Rights Division of redistricting plans like that in Texas would be awarded on a non-political (and non-arbitrary) basis.
Ordinarily, that'd be a story for another day, but circumstances don't allow us to simply set it aside, because Tushnet (and Balkin and Levinson) have opened our eyes to the possibility that such political use of preclearance is part of a wider scheme aimed at political entrenchment.
What else? How about the assumption that presidential signing statements are interesting historical documents (unlike Presidential Daily Briefings, which are decidedly not historical documents, though that too appears to be an assumption under attack), but not part of a recognized legislative history, much less dispositive in judicial interpretation of the underlying statute. That one appears to have been "brought into question," too.
And what happens if these "questions" get answered the wrong way? Or worse, aren't responded to at all, and are accepted by default while we "wait for November" to settle them? What happens under a new constitutional order?
Constitutional orders combine enduring institutional arrangements with principles of public policy that guide decision-makers as they operate within those institutions. So, for example, a president will propose new statutes that implement the constitutional order's principles, members of Congress will do so as well, and the courts will uphold statutes that are consistent with the order's principles and invalidate those that are not.
Political actors can play constitutional hardball with substantive principles. Proponents of a constitutional transformation will propose legislation that pushes the envelope of existing constitutional doctrine. The proposed statutes will not be obviously unconstitutional, because constitutional hardball consists of actions that are plausibly defensible under existing constitutional doctrine. But, they will signal that their proponents have a substantially different understanding of government's role than had seemed settled. And, importantly, the proposals, if enacted, might have the effect of enhancing the political strength of the coalition seeking to change the constitutional order. [Notes omitted, emphasis added.]
But can't the new order's components be challenged and tested, even once adopted? Sure, although under a newly cemented constitutional order, it should be noted that:
All of the government's institutions operate harmoniously, implementing the order's characteristic substantive principles and dividing labor according to the order's characteristic institutional arrangements.57
What's in that note 57? Well, it's an important warning to those who cling to the hope that "winning in November" will fix everything, because we'll be able to... well... do stuff.
In my view, a system of more or less permanently divided government can be a harmoniously operating constitutional order, when the parties controlling the different branches agree to keep their disagreements within understood bounds, and accept that each will win only small victories.
In other words, "winning in November" doesn't by itself undo a constitutional order that's gelled. Divided government can still operate within a new constitutional order that's been established by one party. The New Deal/Great Society coalition of Democrats who established the constitutional order that has prevailed to this day successfully dominated Republicans for decades on end. Yet even as Republicans were from time to time able to regain majorities in one house or another of Congress, and often the presidency, the prevailing Democratic constitutional order prevented them from making significant challenges in that order. Similarly, winning back Congress in November is still of great interest, but it may only be effective in temporarily stopping the advance of the damage that can be done under the new order. It may very well be that it simply is not capable of reversing it, since it will no longer be a matter of repealing statutory law, but rather one of reversing new constitutional understandings and precedent.