In Praise of Constitutional Process

Jonathan Rauch gives Greg’s excellent essay on the dangers of telocratic politics a shout out over at The Atlantic. As Rauch says, “The country now has not just two political parties but two political regimes, one nomocratic and the other teleocratic, cohabiting but incompatible.” Drawing out Greg’s distinction, Rauch highlights that this is not sustainable. Within the Constitution, we can’t have one party that rejects the legal and political process if they don’t get what they want out of it.  

I want to make a further point, building on Greg’s insights. I think he’s absolutely right to point out that constitutional democracy depends to a large degree on nomocratic politics—that is, a commitment to certain procedures and rules. This is certainly true of elections. But these are not just empty procedures. Nomocratic politics—bound by law, rules, and process—is meant to achieve certain substantive goods. It’s meant to protect liberty and equality. To help achieve a sense of the general welfare. But precisely because we dispute about things like the general welfare, these goods are best achieved by way of constitutional procedures. While deeply imperfect, the hope is that these procedures help secure the substantive goods we value. What’s alarming about a certain Trumpist segment of the Republican Party is not just that it would violate and set aside democratic procedures to achieve its substantive vision, but that the substantive ends they seek are themselves troublesome. In this case, I think it’s a substantive vision of We the People that excludes large swaths of the population, especially racial and ethnic minorities

We saw an earlier version of this during impeachment. Trump essentially argued that the constitutional process of impeach was illegitimate because Trump represented the “authentic will” of the American people. Procedures, nomocratic politics, must fall against the authentic voice of the people. As I wrote during impeachment: “the constitutional clauses establishing impeachment must yield to the man who embodies the authentic voice of the people. It’s not just that constitutional institutions and norms do not matter to him; it’s that he sees them as illegitimate when they constrain his power.”  

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