The Civic Constitution

Jeffrey K. Tulis is Professor of Government and Professor of Law at The University of Texas at Austin. He is a regular contributor to The Constitutionalist.

This essay celebrates Constitution Day through discussion.

Robert Carlyle Byrd from West Virginia was the longest serving United States Senator in American history.  He became the Senate’s leader of the Democratic Party and held the office of President Pro Tempore of that body four times in his career, making him third in the line of succession to the presidency.   He died in 2010, while still serving in the Senate, at the age of 92.

Very few Americans in the past century cared more about, or were as shaped by, the Constitution of the United States as this Senator.  As a young man in his twenties, Byrd established and led a chapter of the Ku Klux Klan – a biographical fact that he regretted and for which apologized countless times over the later course of his life.  There were further regrets and apologies for some of his votes on issues of race and civil rights, but he eventually became a champion for civil rights.  In 2003, he received the NAACP’s highest rating and was mourned by the organization at his death.  Byrd’s views on race and civil rights were shaped by events in his life, in politics, and in his changing ambitions – not by the Constitution directly.  But Byrd understood his politics over time as better conforming to the nation’s constitutional vision. He came to these deeper understandings by virtue of his job, his office.  Byrd sought to do his job well, and for that he turned to the Constitution as the framers of it had hoped politicians would.

Byrd became a successful leader of the Senate largely because he was an institutionalist, as the framers had hoped all elected politicians would be.  He stood up for the Senate in its contests with the House, and still more in its contests with the President.  He stood up for the Senate when other institutions encroached on the Senate’s powers and duties, even when the President of his own party was advancing a policy that he and his own party favored.  He insisted that the Senate be respected and allowed to do its job, as the Constitution designed, although that might mean slowing or even defeating policies of his own party.   Nothing marks the descent from constitutional government more than the willingness of its politicians openly and shamelessly to disparage the oaths of office if doing so will advance their partisan position – such as, for example, refusing to hear from relevant witnesses in an impeachment trial of a President.

Byrd always carried a pocket copy of the Constitution. He would often pull it out and read sections to fellow Senators and fellow citizens to buttress some point or to remind them of their duties.  The reaction of most of his colleagues was bemusement.  Byrd was seen as an odd duck in the Senate – notwithstanding his power and position.  He seemed like an anachronism, a throwback to a prior century.  He was. 

In the nineteenth century there was nothing at all odd about a Senator talking to his colleagues about the Constitution.  They did not need to carry copies of the Constitution with them to talk about it because they knew its contents well.  Byrd, himself, did not need a copy to aid his own memory.  He carried his copy because few Americans, indeed very few Senators, actually know what the Constitution says and still fewer can articulate what it means.   To address this situation, Senator Byrd successfully attached a rider to an appropriations bill in 2005 that established Constitution Day and Citizenship Day – to encourage civic and educational institutions throughout the United States to organize events to discuss the Constitution, and for all federal agencies to provide training materials on the Constitution, every year on or around September 17, the day in 1787 that the final draft was signed by the delegates to the Philadelphia drafting convention. 

The country did not need a Constitution Day in the nineteenth century.  More citizens were constitutionally literate then even though they were less able to read and write than are citizens today.  Consider the Lincoln Douglass debates.  They are among the most sophisticated arguments about the Constitution in our history.  Those debates lasted hours and the large audiences of ordinary citizens listened to them with rapt attention, interjected comments, and conversed about them afterwards.  No such event could occur anywhere in America today.

How did it come to pass that most Americans, including most Congressmen and Senators and others who work in government know so little about the Constitution today?  Let me suggest two big reasons.  First, over time, Americans have come to think of the Constitution as the apex of a legal system that requires a special education – a legal education—to understand.  For most Americans, the Constitution means what the Supreme Court says it means, or what litigants before the Court argue that it means.   Few citizens are equipped to follow the technical debates that surround most constitutional controversies in the courts.  This aspect of our political culture can be called the juridical constitution.  It is a vital aspect of the Constitution, which, after all, presents itself as the supreme law of the land.  Who better to understand the law than specially trained lawyers?  Increasingly, citizens, legislators and presidents turn to the Court for the answers to questions about constitutional meaning.

Because the Courts and the legal system are established by the Constitution they are only a part of it  — a big part, to be sure, but only a part.  All of the rest of the Constitution – the design of our entire polity, including the judiciary – is what I am calling here the civic constitution to distinguish it from the usual juridical understanding.  Because I need to label this neglected understanding, it sounds like a remnant, a residue, what is left of the Constitution when we look outside the courts.  It is important to note that the civic constitution that needs to be revived and remembered is actually what was originally understood as the Constitution – the whole thing. Shortly, I will describe in more detail the difference between the juridical and civic constitution.  Part of the reason we have lost sight of the Constitution as citizens is that the juridical dimension has swallowed up the rest of the constitution in the dominant understanding of our political culture, a part has swallowed the whole.

John Finn coined the terms civic constitution and juridic constitution in 2001, and developed these ideas in 2014.  Following Finn, Elizabeth Beaumont also elaborated the idea of a civic constitution.  My depiction here is somewhat different from those of Finn and Beaumont but very compatible with the thrust of their understandings.

A second reason citizens and office holders generally have a poor understanding of the Constitution is, paradoxically, wedded to their admiration of it.  Americans still revere the Constitution even though they do not understand and cannot discuss it intelligently. This is not an accident but partly a result of the Constitution itself.  When the Constitution was proposed, Thomas Jefferson objected that it provided no mechanism for easy and periodic revision by the people.  Jefferson also thought the people should arbitrate constitutional disputes between the Congress and the President.  James Madison opposed Jefferson on these points strenuously and explained why in Federalist Number 49.  He thought that regular appeals to the people to reconsider the merit of the design or to decide its meaning would deprive the project of the veneration that he thought it needed to succeed.  Madison thought “it may be considered as an objection inherent in the principle that as every appeal to the people would carry some implication of defect in the government, frequent appeals would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.”   Madison prevailed, and the result was a Constitution that contains provision for amendment – but an intentionally difficult process. 

Madison may have had a very good argument at the time of the Constitution’s ratification.  We hear echoes of Madison today, when some call for a new constitutional convention (which is one of several ways we can amend the Constitution, if a movement could meet the demanding hurdle of persuading two thirds of our state legislatures call for one).  A commonly expressed fear is that such a move might produce a runaway convention that did not improve the Constitution but instead replaced it with something worse.   Madison may have been right that during his own time, any subsequent convention would have likely resulted in a product much worse than the Constitution proposed and ratified. 

But Madison’s preference for veneration through habituation – that is through living under the Constitution but not collectively reconsidering it as a matter of course – succeeded so well that it has rendered each subsequent generation less capable of constitutional reasoning.  Jefferson may have the better argument now that the American understanding of the Constitution, and of the polity it brought into being, could be improved if citizens were asked to assess it, to rethink it, and to consider alternatives to it. 

Precisely because the Constitution is so venerated now (even though most Americans have lost faith in government) it is difficult to generate sufficient support to surmount the multiple hurdles of the amendment process.  Thus, one should have little fear that there would be a runaway convention today. The bottom line is that asking citizens to rethink their constitution today is not dangerous and is an excellent way to rediscover its meaning.   And conversely, if one understands Constitution Day events as efforts to mainly venerate the Constitution and the founders we hurt the constitutional project more than help it.  Fortunately, colleges and universities that are true to their purpose are in the thinking enterprise not the veneration industry.

Ironically, James Madison was right to worry about too frequent recourse to the people when the people and their leadership were constitutionally literate, while Jefferson might be right that one vital way to educate a constitutionally illiterate people and leadership class today is to publicly rethink the constitution – to engage more robustly in constitutional conversation.

What would it mean to recover the civic Constitution today?  I begin with a sketch some of the main features of the juridical Constitution as an introduction to its contrasting and more capacious alternative.

The Juridical Constitution

Our citizenry behaves as if the Constitution means whatever the Supreme Court says it means.  We know this cannot be true because the Court sometimes reverses its previous decision on important constitutional questions.  The meaning of the Constitution stands apart from the will of its interpreters who seek to discern it.  Nevertheless, it is definitely true that constitutional law at any given moment is what the judiciary determines it to be.  This means that there may be some distance between the best understanding of the Constitution and the judicial understanding – not just because judges might be mistaken – but more because of the purposeful constraints that shape their work.

Unlike legislatures and executives, courts do not decide what problems to solve or policies to pursue.  Problems are solved and decisions have policy implications – but these are both the result of their task to decide cases and controversies brought to them by litigating parties.  Sometimes to resolve these cases they are asked to review the constitutionality of some law.  Although the Constitution does not explicitly mention the power of courts to do this – the power of judicial review – classic defenses of this power in The Federalist and in the landmark John Marshall opinion in Marbury v. Madison (1803) – explain that the power follows ineluctably from the job.  If the judiciary’s essential function is to interpret the law and if the Constitution is the highest law, it follows that ordinary law that conflicts with the higher law should be struck down.

But note that constitutional review, even landmark decisions that alter the course of American politics are always the by-product of a complicated legal process designed principally to resolve cases and controversies.  Courts do not directly address matters of constitutional interpretation.  For example, courts do not give advisory opinions on what the Constitution means.  To be sure, the Supreme Court decides to consider very few of the petitions it receives – and thus it seeks out and chooses cases that raise important constitutional issues.  Still, this process is indirect and is filtered through the multiple mechanisms designed by the Congress and the courts themselves to establish and maintain a legal system that is fair and devoted to impartially resolving disputes between litigating parties.  Before constitutional questions are seriously discussed, parties need to establish that they have standing to bring a lawsuit, that they have suffered a harm that courts can address, that they have brought their suit in the right venue, the correct jurisdiction, that it is a kind of dispute that courts have deemed justiciable (that is, suitable for resolution through courts), that they have exhausted any other remedies that the law may have provided for their sort of dispute – and so forth.  Lawyers have a specialized language and a special education for all of this.  These matters may be extraordinarily important in a case but citizens are generally poorly equipped to understand these matters and journalists rarely explain them.   The juridical Constitution is indirect and, for most citizens, opaque.

One result of this indirection is that Courts do not entertain the full range of constitutional disputes and constitutional questions.  To take recent and obvious examples, whether a President has abused his power or violated the oath of office, is left to the electoral process or to Congress to assess and respond to with its own tools, up to and including impeachment, trial and removal from office.  In the nineteenth and for much of the twentieth century most separation of powers disputes were left to be resolved the Congress and President and dialogue and contestation with each other.   These aspects of constitutionalism are part of the civic constitution that I will discuss shortly – not the juridical aspect– and it is a mark of the decay of the civic aspect that in recent years, the Congress and President have appealed to courts to resolve their disputes and the courts have been increasingly willing to entertain these lawsuits giving over the civic to the juridical.

A third distinctive feature of the juridical Constitution is the need for courts to insure that its decisions are consistent for parties who bring similar disputes.  The court does this by explaining its reasoning and solving the legal problems presented to them with doctrines that can guide future courts.  Constitutional questions are not revisited afresh with every new case.  Instead, courts first try to apply, extend, or modify the existing doctrine –the existing framework for understanding that particular constitutional matter.  Thus, both a commitment to precedent – to not overruling prior decisions, and to rationalizing new decisions in light of the reasons given for the earlier ones means that there may be a gap between rendering a stable and just system of constitutional law and the best understanding of the Constitution itself.  If an earlier precedent or doctrine is found to be seriously defective, the Supreme Court will abandon its precedent and make new law – as it did in the famous case Brown v. Board of Education (1954) which abandoned the doctrine that racially separate schools could be educationally equal.  It is important to note that decisions like Brown that reverse a century of constitutional law are rare – even if there are widely agreed upon mistakes in the reasoning of a long train of cases that shape the doctrine of law.

In the study of American political development there is a concept recently popular among social scientists.  This is the idea of path-dependence.  The notion is that the movement of history is not the product of inevitable historical necessity that rules out human intervention.  But when political actors do make choices at crucial moments in history they can set a future path or course for subsequent developments and rule out other paths that once were possible.  Crucial Supreme Court cases that set in motion a new or distinctive doctrine of law are like that.  After the original doctrine is adopted – for example a particular interpretation of a particular clause of the Constitution, subsequent cases are decided by applying, tweaking, or in some way extending that doctrine rather than inventing a new one, a new path.  This means that large portions of the Constitution that might logically be relevant to some matter might be off limits once the Court has established a governing doctrine. 

A fourth distinctive feature of the juridical Constitution, related to this last point, is that it highlights relatively few clauses of the Constitution and rarely discusses much of the document.  If one is a law student, you will learn a lot about the commerce clause, about parts of the 14th Amendment and parts of the Bill of Rights, but not all of the Bill of Rights.  You will learn about parts of Article I and Article II – about the President and Congress, but more about such things as the doctrine of separation of powers even though there is no doctrine of separation of powers mentioned in the Constitution.    You will learn a lot about the due process clause of the 14th amendment but probably nothing about the Republican guarantee clause in the text of Article IV of the basic document.  You will learn much about the necessary and proper clause that speaks to powers not explicitly mentioned but you will learn little about the 9th amendment that speaks to rights not listed.

One clause of the Constitution that you will be familiar with – and is the one part of the Constitution that many citizens have some awareness of is the Preamble. But, as a law student and lawyer, you will learn that the Preamble has no legal effect – that it cannot be cited for constitutional warrant the way that the rest of the document can.

This is a bare outline – indeed a somewhat stylized or over-simplified picture of the juridical mindset.  But let me conclude this picture with a final observation that follows from diminishing the significance of the Preamble.  For the most part, when thinking about the Constitution, Courts try to determine what it prohibits government from doing rather than what it requires government to do.  This is an oversimplification but still helpful to suggest that the thrust of the usual juridical picture is one that thinks of the Constitution as a charter of negative rights and proscriptions rather than a document that requires government to fulfill or advance positive purposes.   

The Civic Constitution

After the Constitution was ratified and citizens began to live under it they continued to understand it from the perspective similar to a framer of it  — that is, like one responsible for making and maintaining a whole polity.  They understood the Constitution as something more than, though including, a legal system.  From this perspective—the civic perspective– the Constitution is more like an architectural design than it is a legal code.   To be clear, to think like a framer or a founder is not a search to determine their concrete intentions for each clause of the Constitution.  It is not an historical project of original intention – though some Federalists and Anti-Federalists were so insightful that one can certainly be helped by reading them and emulating how they thought.  I want to stress how they thought not necessarily what they thought about a particular clause, institution, or right.  We need to think for ourselves but we have almost lost the art of constitutional thinking that they exemplified.  

Interpreting and conversing about a polity as designed is different than talking about it as a set of laws to be enforced. It is a different mind-set and requires a different set of skills.  To be clear, informed citizens should be able to converse about important Court decisions, as well.  But even those conversations will be better if citizens began from a more capacious point of view.

Recapturing this kind of civic perspective takes an act of the imagination – imagining how one would think about the constitution as a whole if one were in the kind of situation the American framers were in in 1787. That situation was one in which an old constitution, the Articles of Confederation, had failed and the framers sought a new constitution, a constitution that would work. Work to accomplish what? Many of us would cite the founding generation’s revolt against power centralized in the British Crown and declare that the Constitution’s chief purpose was to establish a “limited government.” But think about that answer for a moment. Limiting government is certainly an important objective of the American Constitution. But how can it be the Constitution’s most important objective? Why would anyone establish a government for the chief purpose of limiting the government?  Why would anyone establish a government if fear of government were stronger than the felt need of government? The actual language of the American Constitution does not use the phrase “limited government” or anything synonymous with that phrase – anything but, in fact. The language starts with a set of positive goods: the common defense, the general welfare, the blessings of liberty, domestic tranquility, and justice. This is a list of good things, good things that can be pursued only through well-designed structures and powers of government. It is not primarily a list of legal restraints on government.

Thus, the civic perspective begins with a common sense reading of the whole Constitution and explores how its various parts fit together to depict and generate an actual polity.  When citizens debated whether to adopt the Constitution in the first place they argued about the meaning of specific words and phrases, to be sure.  But the bulk of their arguments were about what the whole design meant and what kind of polity would be generated by this design.  Would this new regime be capable of avoiding the problems the states could not resolve under the Articles of Confederation?  They argued about what kind of polity the commitments represented by the Constitution would bring into being and how they would look in the future.  The Constitution as architectural design was not just a settlement of a political dispute in their own time but rather an argument over how to reconstitute the polity for the future.   That is why, for example, there was a lot of argument of whether the Constitution would create a large, commercial, increasingly urban polity even though the ones they inhabited were small, rural and agricultural.  The opponents of the Constitution did not want to give all that up and they agreed with the proponents of the new plan that this was the kind of future it would bring into being.

The idea that the Constitution would set in motion social, economic, cultural and political change – that it would generate a polity that would change over time, in ways that it induced, and that its institutions were designed to change as well to meet those foreseeable futures means that the idea of change was built into the Constitution from the very beginning.  This renders a common debate within the juridical perspective – that between so-called originalists and living constitution advocates as fundamentally mistaken. As a future oriented design, the meaning of the Constitution cannot be tethered to the extant practices or prejudices of the eighteenth century. Nor are most changes in the scope of government or making of new institutions fundamental alterations of the Constitution merely in response to extra-constitutional social and cultural development.  Rather, the founding design set in motion change at its origin.  The Constitution contains a political logic, induced from the beginning such that it might be said that much of what is new later in a practical sense was theoretically there all along.

Federalist Paper, Number 10 – which articulates the case for a large commercial republic of continental scope – a dramatic change from the Articles of Confederation and from the earlier ideas of how to create a successful constitutional democracy, is often regarded as the most profound and important essay ever written defending the proposed Constitution.  It does not mention a single clause, but rather highlights the fundamental aspects of this design and their implications for the political development of the polity set in motion by a commitment to fundamental features of the Constitution.  From a civic perspective the design commitments of a Constitution go well beyond parsing specific clauses. It speaks to the Constitution’s fundamental commitments (and how they differed from the previous Articles of Confederation), the philosophic or theoretical bases for those commitments, and the political implications of them.  These features define constitutional thinking from a framer’s perspective but they are alien to the juridical mindset.

Returning to the most basic or fundamental level – the Constitution is a project to empower and advance purposeful government.  The Constitution generates power to serve specified purposes.  As I mentioned, many legalists, especially today, think that the Constitution is fundamentally a set of limits on government.  The Constitution contains both positive purposes and powers and negative limits or restrictions.  The ineluctable civic starting point is that positive purposes are fundamental and restrictions or limits on power, though vitally important, are secondary.

Thus, from the civic perspective, the Preamble is and ought to be the most important paragraph of the plan.  It sets out the positive purposes of our governing order – and the standard by which one should judge the success of this political design.  The rest of the plan are the structures and powers designed as means to achieve these ends: to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the General Welfare, and secure the blessings of liberty to ourselves and our posterity. The civic perspective asks how the means of the Constitution are fitted to these ends and whether they work to advance these ends.  If we can no longer say that government is capable of serving the ends of the Preamble or of advancing toward better realization of those ends, then it is time to think about a new Constitution.  This is why it is important today not to venerate the Constitution but to think about it.

The meanings of the ends are also subjects for reasoned debate.  For example, what is justice in the Constitution?  It is a mistake to think that justice is some specific conception shared by the citizenry at the time of the founding, or that it is whatever our current generation thinks justice to be.  Rather, justice is a real aspect of the world that we seek to understand and to better realize.  This idea, that the values and ends of the constitution are aspects of the world about which one can have better or worse understandings, is an ineluctable premise of political argument.  When we disagree about what justice means, we presuppose that there is something to disagree about.  Just as the natural world is understood through testing revisable hypotheses, so too in the political and moral world, contestable ideas like justice, equality, democracy, the general welfare are always revisable ideas.   We seek the best understanding that we can find of ideas like justice on the basis of still better accounts, or new evidence.  Later versions of our ends are not necessarily better versions merely because they reflect our current consensus.  But neither are the original specific conceptions of ends authoritative merely because they were the conceptions common to the founding era.

Citizens in the nineteenth century had a more robust understanding of moral ideas than do citizens, jurists and academics today.  It was the premise of Lincoln’s famous argument in which he wedded the Declaration of Independence to the Constitution. He argued that the commitment to self-evident rights was not merely an axiom to be accepted or assumed but rather a proposition to be proved through politics.  Lincoln argued that even though most colonial Americans were full of prejudice, given that some owned slaves and most of the non-slave holding population still regarded blacks as inferior to whites, the Constitution’s commitment to equality represented an aspiration built into the design at odds with and challenging the cultural attitudes of the citizens who ratified the Constitution.  Black Americans always were equal to white Americans in the Constitution even when the citizenry did not realize the full meaning of the document they ratified and black Americans did not, and still do not, experience full equality.  The civic Constitution invites the elaboration of its commitments and is not tethered to the extant practices and prejudices of the past.         

The design of the Constitution is an organization of ends and means, with the ends more important than the means.  The civic perspective begins from this basic idea, whereas the juridical perspective tends to elevate means over ends. It seeks to insure that the means prescribed are the ones deployed. Process and forms are vitally important, so the legal aspect is a way to safeguard them. The judiciary is a kind of hall monitor for process.  But when the juridical point of view dominates all of constitutional thinking, the polity as a whole comes to think of the Constitution only as a charter of negative liberties or as a safeguard against the abuse of power by government – of the things a government should not do rather than the things it is obligated to do.

One reason the juridical perspective has this emphasis is that there are many ways a polity can seek to perfect itself and the choice among these are the point of partisan debate and legislative deliberation.  Seeking not to supplant the legislature, Courts try to confine themselves to the question of whether some action is permissible – yes or no.

But from a civic perspective one could argue not only whether some policy is permissible – whether it is allowed by the Constitution, but also which policy advances constitutional purposes better than another.  It was common in the early nineteenth century for Congressmen and Senators to argue whether some proposal was more constitutional than another.  This is a concept anathema to the juridical point of view.  Judges do not and should not decide whether some policy is more constitutional than another – that supplants the legislature.  Courts rightly confine themselves to the minimal threshold of permissible.  Is the law within the range of constitutionally permissible policies?  So the juridical Constitution asks yes or no with respect to matters of constitutionality while the civic perspective may ask about more or less, as well as yes or no.

It is a further mark of the decay of democratic discourse in our time that legislatures do not even consider minimal permissibility or constitutionality for themselves when they draft legislation today – the yes or no question.  This is a fairly recent development – the total abdication of constitutional analysis by the legislature.  Today, if a question arises regarding potential constitutional problems within a piece of legislation, the Congress includes severability clauses in their bills.  These clauses allow the Congress to avoid constitutional questions altogether by throwing the whole matter to the courts by stipulating that if they find some aspect unconstitutional they can sever it from the rest of the legislation.  This rarely, if ever happened, in the nineteenth and early twentieth centuries.  In the past Congress developed its own views regarding the constitutionality of legislation that it passed and those views shaped and informed their deliberation.

Because the judiciary is designed to resolve cases and controversies it seeks definitive and lasting answers to the problems posed.  It seeks to settle the issue.  The political theorist Mariah Zeisberg has labeled this the settlement thesis – the idea that in issues of constitutional contestation courts seek to settle the issue not just between the parties but also as a matter of constitutional interpretation for future similar controversies.  The reason the judiciary stayed out of disputes between the Congress and the Presidency for most of American history is because the political branches contesting claims to constitutional authority – regarding war powers or information, for examples were independently legitimate and not appropriate for settlement.  Each institution has viable and important constitutional authorities that were designed to conflict.  These issues were not settled but rather temporarily resolved by the political institutions themselves in argument and contestation with each other – such that the same constitutional question might be resolved differently in different political circumstances.  Zeisberg calls this a relational understanding of constitutional interpretation as opposed to a settlement understanding.

To give one example of how this is supposed to work and used to work, consider the issue of executive privilege – the claim by presidents that they can keep confidential advice or deliberations within the executive branch.  There is no explicit clause on this matter in the Constitution but it is a reasonable inference that the executive power vested in the president requires confidential advice – for law enforcement so as not to tip off targets of investigation; for national security; and for the advice giving function itself – to make more likely that advisers will feel free to give confidential and controversial advice and not hold back.  These are the grounds, all legitimate constitutional grounds, for secrecy.  But the Constitution gives the legislature responsibilities that require information for oversight, accountability and lawmaking.  So, the legislature also has constitutionally legitimate grounds for information from the executive.  Who should prevail?  That is a political question – not in the merely partisan sense of which side are you on – but in the larger sense of how important is the information to Congress versus how vital the secrecy is for the executive.  The balancing of those questions was routinely and regularly resolved by negotiation in which each side responds to the arguments of the other.  For example, if the executive is worried about leaks of national security or law enforcement information, a congressional committee might propose limiting the access to the information and making provisions to maintain its confidentiality.  In normal administrations these accommodations are made all the time.  In the event that agreement cannot be achieved, each branch has tools at its disposal to either extract or protect the information – and the willingness to use those tools is a rough measure of the importance of the issue in the conspectus of political concerns at that time.  Congress may subpoena witnesses and documents, hold witnesses in contempt, and if the issue is serious enough censure or impeach an office holder or the President himself.  

This is an example of the results of architectural aspects of the Constitution that are missed by the juridical point of view and are subverted to the extent that one thinks too legalistically.  The civic Constitution envisions a government designed to vindicate different desirable qualities of democratic governance.  Democracies require responsibility to public opinion and majority will, but they also require competing needs like attendance to rights and the safety and security of the nation and its people.  To achieve these sometimes competing objectives the Constitution reimagines governmental design to be a complex of structures, powers, duties, and induced perspectives and dispositions (like deliberation, decisiveness, and judgment).  Political conflict in this vision is a virtue to be exploited and made fructifying, not a pathology or malady to be overcome. 

The vision I just described captures well constitutional understanding and practice in the nineteenth and early twentieth century because legislators and presidential advisers were constitutionally literate and had what could be called constitutional consciousness.  This is the civic constitution and it has waned and withered in our time.  It has withered not just because legislators no longer have the memory and skills for this kind of argumentation but also because these contests between President and Congress require a watchful people – a people that can understand enough of the argument to be a factor in the resolution of disputes between the political branches.

Yet as striking the contrast between the robust civic Constitution of the past and the constitutional decay in our time – it must be conceded that the problem might have been unintentionally induced by the original Constitution itself.  It may be the case that constitutional literacy in the past was a residue of the education of the generations who formed our polity rather than the success of their architecture. Our problems today may have been latent from the beginning.  I conclude with this point because of a remarkable observation by Alexis de Tocqueville in his classic Democracy in America written after his trip to the United States in the 1830’s.  Tocqueville remarked that in America, all political questions eventually turn into legal issues.  Tocqueville praised this aspect of our new democracy.  It was not yet true about most political issues at the time he wrote but it was a tendency that he was able to see and note. 

Tocqueville was afraid that democracy itself, for all its virtues, was its own worst enemy.  The problem for democracy he feared was that it would become too democratic, leading to majority tyranny and other pathologies.  He thought the solution to this problem was to find some substitute for aristocracy, some democratic institution that could mitigate democracy’s worst tendencies.  He thought lawyers and the judiciary did this.  They were compatible with democracy – anyone could become a lawyer; judges were selected by democratic processes, and so forth.  But the special training, the focus on process, on forms, and on formalities, made the legal community a kind of ersatz aristocracy that could mitigate the worst aspects of democracy.

Tocqueville was right that over time political questions would become legal disputes and that lawyers and legalism would loom large in our political culture. In that he was brilliantly prescient.  He was wrong, very wrong, that this would prove to be healthy for democracy.   The ersatz aristocracy of lawyers and legalism would truncate our Constitution and diminish our constitutional culture.  Civic engagement, also prized and lauded by Tocqueville would wither, not thrive, partly because of the dominance of the juridical constitution in the civic life of the United States.


2 thoughts on “The Civic Constitution

  1. As always, powerful and thought provoking. Some thoughts and questions occurred to me when I read this passage, and I was wondering if you had more to add:

    “when political actors…make choices at crucial moments in history they can set a future path or course for subsequent developments and rule out other paths that once were possible. Crucial Supreme Court cases that set in motion a new or distinctive doctrine of law are like that. After the original doctrine is adopted – for example a particular interpretation of a particular clause of the Constitution, subsequent cases are decided by applying, tweaking, or in some way extending that doctrine rather than inventing a new one, a new path. This means that large portions of the Constitution that might logically be relevant to some matter might be off limits once the Court has established a governing doctrine.”

    Something that fascinates me is the way these juridically-constructed doctrines come to shape the worldview not only of lawyers and courts but of elected officials, non-political elites, and ordinary citizens, as well. So for example, presidents frequently invoke “the unitary executive” and “executive privilege” as if those phrases actually occurred in the Constitution itself, when in fact they are inventions of courts and jurists. And the president’s partisans (both elites and ordinary voters) in turn take for granted the authoritativeness of those same doctrines. As a consequence, the whole polity comes to view and experience the Constitution through the lens of Court doctrines (others would include “police powers” “separate but equal” “strict construction”–the list goes on) that were originally the deliberate choices of judges–a clear illustration of path dependency.

    It seems like the phenomenon I’m trying to describe here is the process by which the juridical constitution is constructed in practice–the process by which the public are taught to think about the Constitution on the terms of lawyers and judges, rather than on the terms of the civic constitution. Do you think this is a pathology of the Constitution itself–an unavoidable consequence of the Constitution’s very nature? Or is the construction of the juridical constitution itself an instance of path dependency, something that could have been avoided had different choices been made by public officials?

    One thought that comes to mind is that 19th century presidents and Congresses were less constrained in their thinking by Court doctrines; they took their own Constitutional oaths and understandings seriously. Relatedly, this was the period when the civic constitution had the most vitality. Whittington (2007) would say the Court gained influence because it was politically expedient for the political branches to “punt” on difficult constitutional questions, and eventually it just became second nature for the political branches to defer to Court doctrine. But I’m wondering if the cause is deeper…

    1. I don’t think the way the legalistic view has come to dominate civic culture was inevitable or necessary. But it may have been prompted by the Constitution for reasons Tocqueville describes, which is why I end with him.

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