Justice Kavanaugh would make the greatest difference in relatively non-political cases about executive power.
There are two basic approaches one can take to thinking about the United States Constitution. One is to treat it is a given, whether that refers only to the specific document proposed and ratified in 1787-88 with subsequent textual amendments or to the body of case law developed over the past two centuries. In any event, the lawyerly task with regard to a constitution that is treated as already existing is to engage in debates about its interpretation.
What, for example, are the powers of the President? One might focus on the difference in language between Article One (“all powers herein granted”) and the more laconic language of Article II (“the executive power”) or on the meaning of the Commander-in-Chief Clause; or, commonly, one might parse at length various opinions issued by the Supreme Court over the years, including, of course, Justice Jackson’s now-canonical opinion in the Steel Seizure Case, with its “three-part test” elaborating the basic structure of presidential authority. There are, of course, literally thousands of other possible examples. If one looks only at the current docket of the Court, one might be asking about the constitutionality of taking race into account in university admissions; the legitimacy of requiring individuals to buy private health insurance; or the ability of states to adopt their own policies concerning the treatment of aliens who are in this country illegally. All of these cases invite lawyers to do what they do “best,” which is to converse (or shout) at one another about the best ways to discern constitutional meaning. Some, of course, will proclaim the merits of an “originalism” that would limit constitutional meanings to what was accepted in 1791 or, for the Fourteenth Amendment, 1868; others, like myself, will instead focus on one or another variety of “living constitutionalism.” A recent entrant on the scene, Jack Balkin’s brilliant book Living Originalism, tries to achieve a wedding of the two. There are, of course, yet other possibilities. But everyone will agree that the task at hand is to figure out how the existing Constitution should be interpreted. It’s even possible that someone will concede, happily or not, that the “correct” meaning requires what Virginia legal theorist Fred Schauer labels “sub-optimal results.” A devotee of Justice Scalia might join him in proclaiming that that’s just what it means to accept the notion that “the rule of law” is essentially the “law of rules” and that we should proudly assert our devotion to a “dead Constitution” rather than to believe that a judge is entitled to make it better according to contemporary values.
There is, however, a second approach, which is very different in its ramifications for how discussions of the Constitution should proceed. Instead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact wise. One might call this a “Jeffersonian” approach to the Constitution inasmuch as it invites relentlessly asking whether the Constitution is serving us well. This is, incidentally, an especially important question if we agree on constitutional meaning. Disagreement, after all, suggests the possibility of legitimately interpreting the Constitution to achieve what we might describe as “happy endings.” The situation is decidedly different, however, if we agree on constitutional meaning, but believe that it sets us up less for happy endings than for driving over a cliff.
I have recently published a new book, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press), that focuses almost exclusively on the wisdom of constitutional structures that are, almost without exception, obvious in their meaning. Evidence of this obviousness is that they are rarely brought up in law school classes precisely because there is nothing to “argue about” in the only sense that lawyers and their professors define that term, which involves debates about meaning. I distinguish between what I call The Constitution of Conversation—the obsession of lawyers and judges—and The Constitution of Settlement. The latter involves those very important parts of the Constitution that are in fact never litigated and, therefore, made part of distinctly lawyerly conversations about conflicts in interpretation.
Consider my own favorite example: When do we inaugurate new presidents, including, with some frequency, winners of elections that involve rather explicit repudiation of the incumbent president, whether on the ballot (as with, say, Herbert Hoover or Jimmy Carter) or not (as with George W. Bush)? The answer is absolutely obvious, derived from reading the Twentieth Amendment added to the Constitution in 1933, which changed Inauguration Day from March 4, when FDR was inaugurated in 1933, to January 20, when he was inaugurated for the second time in 1937. The Twentieth Amendment is in fact one of my favorite amendments to the Constitution inasmuch as it bespeaks the ability of the American public, led by elites interested in the quality of the operation of American political institutions, to address the wisdom of the status quo and, importantly, to change it. The hiatus between election (in November) and inauguration (then in March) basically threatened to leave the United States without functioning governments inasmuch as the incumbent with legal authority had lost political legitimacy while the new “people’s choice” (putting the peculiarities of the electoral college to one side) had political legitimacy but not an iota of legal authority. This was amply revealed, of course, during the Depression Winter itself of 1932-33. So something was done about it! No lawyer had to be consulted as to constitutional meaning. Instead, we had a valuable public discussion about whether the country would be better served by changing this particular feature of the existing Constitution. The 20th Amendment also had the virtue of curbing, even if not entirely eliminating, the role played by “lame-duck legislators” in making decisions about passing new laws. Before, newly elected legislatures (and their members) had to wait until thirteen months after election to begin their actual work. After the Amendment, the new Congress convenes the first week of January immediately following the election, which by any account is a distinct improvement.
Even if one agrees with me that Inauguration Day is a potentially significant aspect of our constitutional order in terms of its capacity to generate genuine mischief for the orderly operation of government in an ever-more-complex world, it is surely not the only—or even most important—example of the Constitution of Settlement. More important, surely, are such examples as the allocation of power in the Senate—each state receives two (and only two) senators; the length of terms for federal judges—suffice it to say they are not subjected to term or age limits; the length of the presidential term and the concomitant inability to “fire” an otherwise law-abiding (and therefore presumably unimpeachable) president who, however, has demonstrated sufficient misjudgments, particularly with regard to issues of war or peace, life and death, that one no longer feels even minimal confidence in his or her decisionmaking; or the procedures necessary to engage in formal amendment of the Constitution, set out in Article V and establishing the U.S. Constitution as the most difficult to amend constitution in the entire world.
An important theme of the book is that there are fifty-one constitutions within the United States if one takes into account the fifty states. More to the point, these state constitutions can teach valuable lessons of their own. Some of them, as with the national constitution, may offer cautionary lessons inasmuch as they help to explain the dysfunctionalities of given state politics. Especially important in this regard is California’s constitution. Consider only the near-inability to raise any taxes, given the constitutional requirement of a two-thirds vote in the legislature, coupled with the ability of the California electorate to pass legislation and even constitutional amendments through mechanisms of “direct” democracy. But one should be aware that forty-nine of the fifty states—Delaware is the sole exception—include some aspect of direct democracy, and it is almost certainly a mistake to focus on what we might dislike about California’s experience with direct democracy to discredit any and all instantiations of that concept. There are good reasons, given our experience over more than two centuries, to wonder whether the framers of the national Constitution, who militantly rejected any iota of direct democracy in favor of an exclusive reliance on “representative democracy,” might not have done a better job of creating a functioning democracy.
The distinguished journal The Economist is only one of many sources that could be cited for the description of California as “ungovernable,” and part of the reason has to do with the clear but unfortunate mechanisms of the California constitution itself. But, increasingly, pundits and academic analysts writing about the national political system are prone to using such words as “dysfunctional,” “pathological,” or “paralyzed.” Nor, regardless of one’s politics, can one look with equanimity at the fact that the current (as of March 2012) level of public approval of the United States Congress hovers slightly above 10% and that the only major national institution that currently warrants the “confidence” of more than 90% of the public is the military. One can only wonder what public opinion analysts, had they existed in 1775-1776, would have found had they asked American colonists about their level of trust in King George and the systems of government established by Great Britain in North America.
Thomas Jefferson was wiser than he knew when he counseled against treating the Constitution as similar to the “ark of the covenant, too sacred to be touched” or, more importantly, to be changed. All constitutions are human artifacts, and one must always remember the propensity to error of even the finest human beings (as we might concede most of the Framers to have been). They were creatures of their own time, well aware that the future would bring different realities and almost certainly require different solutions to problems of government, including basic questions of design. This point was made most eloquently by Jefferson’s close friend, James Madison, who concluded Federalist 14 by emphasizing the importance of learning the lessons of experience, including the necessity, on occasion, of forging off in what might appear radically new directions. The new Constitution might well be regarded as “a novelty in the political world,” but that did not count against it. “Is it not the glory of the people of America, he asked, “that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?” The American people “accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe.” Nor, clearly, was the work done simply by ratifying the Constitution, for it is “it is incumbent “ on successor generations, “to improve” the Constitution in order to create a system of government that will make it more likely to achieve the magnificent aspirations set out in the Preamble to the document.
We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America.