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Don't have an account? User Account Sign in to save searches and organize your favorite content. Not registered? Sign up. Liberal constitutions are concerned, primarily, with the protection of individual rights and the restriction of state power, whether this power is used for conservative tradition defending or radical inequality removing ends Gargarella, Radical constitutions are based, above all, on a principle of democratic populism; they seek to elicit and to apply the will of the people with a minimal degree of filtering or restraint Gargarella, It therefore cuts across other forms of classification, such as whether a state is unitary or federal, or has a presidential or parliamentary form of government, or a majoritarian or proportional electoral system.
However, Gargarella argues that certain constitutional provisions, both in terms of structure and substance, generally follow from each of these models.
Thus conservative constitutions typically concentrate power in the executive branch, while weakening legislatures, courts, sub-national authorities and other potentially competing centers of power. They minimize opportunities for direct, public participation, while adopting a minimalist approach to rights, which allows political authorities wide discretion in restricting rights on grounds of state security or to prevent assaults on the traditional moral order.
Liberal constitutions are also dubious of the role of public participation, which they see as a route to majoritarian populism. They typically provide for judicially-enforced individual rights, for extensive checks and balances, a separation of powers between different branches of government, and often a federal division of powers between national and sub-national bodies.
An earlier but similar fusion of liberal and conservative ideas — and a rejection of radical constitutionalism — can be seen in European constitutions of the early nineteenth century, roughly from the restoration of the Bourbons to the French throne in to the constitutions produced by the revolutions. Such a fusion is possible because, although differing on questions such as individual autonomy, religion-state relations, and the centralisation or decentralisation of power, liberal and conservative theorists share an essentially oligarchic conception of government.
Both are wary of the people, and both believe — albeit for different reasons — that government should be directed by an elite class. Seen as a liberal-conservative fusion, oligarchic-democracy was at first a deliberate design choice of property-owning elites who, in the aftermath of the American Revolution, the French Revolution, and the Revolutions, feared that too much democracy would harm their interests. If these constitutions provided a basis for oligarchic democracy, it was not because an intended democracy had been corrupted, but because an intended oligarchy was forced, over time and in the face of social and political pressure, to make some compromise with democracy.
For conservatives, money and power go together in a traditional hierarchy of power. It is assumed that the rich have a right to rule, because they alone have a long term vested interest in society; property holding is associated, in the conservative mind, with competence and responsibility. Only the propertied those whose ownership of productive property, and rentier lifestyle, enabled them to live without labour were deemed to have the culture, leisure and educations necessary to rule.
Subsequent generations of conservatives may have come to accept procedural democracy. Some did so reluctantly, as an expedient that could not be avoided. Others saw at least a basic level of procedural democracy as a powerful source of legitimacy for those in government. For conservatives, however, a trusteeship model of democracy prevails. The power to decide policy is still to be concentrated at the top and subject to as few constraints as possible.
Opportunities for democratic action should be few, with long terms of office, less inclusive electoral systems, centralised decision-making, and a clear focus on the discretionary authority of the executive.
In so far as rights are protected, primacy is given to property rights, rather than civil and political rights that could be used to challenge those in power, or socio-economic rights that could result in a redistribution of resources away from the elite. The privileges of particular classes — aristocrats, landowners, priests, the military — may also be protected, partly in order to bind these natural leaders, moral guardians and praetorians closely to the centre of political power and partly to guarantee their corporate influence over a polity and society that might otherwise go dangerously astray.
The art of conservative constitution-making, then, is to use a minimal procedural democracy as a way of legitimating the state, while protecting elites against the levelling desires of the people. For classical liberals and neo-liberals, likewise, money and power go naturally together. They are less concerned than conservatives with questions of fitness to rule, but equally concerned to avoid the levelling effects of democracy.
The priority for classical and neo-liberals is to maintain a sphere of individual sovereignty that exists outside the control of the state, particularly with regard to property rights and freedom of contract. They value liberty, but do not conceive of liberty in its positive sense, as active participation in the public life and decision-making of the community; rather, they uphold liberty in narrow and mostly negative terms, primarily as freedom from state interference in social, cultural and economic matters.
The state may be a realm of formal legal equality, but its scope is limited, and its influence on the very unequal realm of social, cultural and economic life should be minimal. Such liberals may be sceptical or at best ambivalent about democracy, but strongly committed to the principle of limited government.
They regard the constitution as a means of, firstly, protecting private rights, and secondly of frustrating the exercise of public power. For this reason, they favour strong judicial review, enumerated as opposed to plenary powers for legislatures, federalism, strong bicameralism, separation of the powers between executive, legislative and judicial branches of government, and other impediments to majority rule, all of which make it more difficult people to channel economic grievances and inequalities into effective political action Gargarella, For this reason, some fear that if the Court were to interpret the Constitution in ways that respond to contemporary ideals, our constitutional order might be undermined by instability and insecurity.
This is the fear that underlies originalism as a theory of constitutional interpretation. In the name of this fear, originalists would bind constitutional meaning to the views of those who first consented to the Constitution in , or to the Bill of Rights in , or to the Fourteenth Amendment in This theory has a superficial plausibility. Its attractiveness, however, dissolves on closer inspection. No American alive today was involved in the ratification of these constitutional texts.
How, we may ask, are contemporary Americans bound to a contract they did not make? The prospect of being bound to a document whose meaning was completely fixed by strangers would likely be most alienating. Nor would the infinitesimal possibility of amending the Constitution substitute for the lack of consent by living Americans.
Unlike the Constitution of the State of California or the Constitution of India, it is almost impossible to amend the Constitution of the United States.
Since , the nation has used the procedures of Article V to ratify only 27 amendments. Instead we have relied on other provisions of the Constitution to enable constitutional change, including those authorizing the democratically elected Congress and President to create federal courts and to appoint federal judges.
Originalists like Justice Scalia claim to reject change that occurs through judicial interpretation. The argument may be appealing, but its logic does not hold.
Original meaning is not a simple fact waiting to be uncovered. If it were, the relevant experts would surely be historians who know far more about the facts of the past than judges.
But historians rarely understand legal texts to have one meaning for all who ratify them. That is why originalists frequently disagree among themselves. There were originalists arguing on both sides of the Obergefell case—some claiming that bans on same-sex marriage were not prohibited by the original meaning of the Constitution, and some claiming that they were.
Judicial interpretations of the Constitution typically embody the stability and predictability that characterize all judge-made law, of which our own common law is a conspicuous example. If the end result of this complex process of decision-making were not consonant with the fundamental values of the American people, the authority of the Constitution would diminish.
The point is well illustrated by the case of Bolling v. Sharpe Bolling was a companion case of Brown ; it decided whether Washington, D. This has been the perennial dream of authoritarian capitalism, most salient in the Pinochet dictatorship in Chile. Such experiences have led some scholars to suggest that the rule of law may have merely contingent value, for example, at the later stages of the introduction of capitalism, or even that arbitrary powers are positively beneficial for the introduction of capitalist forms of economic organization.
Neither those armies of thugs nor their intermediate commanders necessarily have an interest in promoting the dual part of the dual state, that is, in refraining from expropriation and corruption, and thus may undermine the protection of property and contract essential to the dual state. However, it might be that such a dual state is possible to the extent it generates sufficient prosperity to permit its legions of violence dispensers to become well-paid and highly bureaucratized.
Contemporary China arguably is developing something like a modern, technocratic and bureaucratized, second-wave dual state. While China manifestly exercises arbitrary power over the day-to-day lives of its citizens, as exemplified by its cruel mistreatment of the Uighurs, 75 See, e. Many are live-streamed, to horrified viewers. Thousands have been arrested. Fearful accounts are coming out of the police stations, alleging torture, sexual assault, and rape. Much of it is in the form of state-owned enterprises, which, for obvious reasons, need not fear state expropriation although such enterprises may need to fear the individual expropriation of powerful officials.
On the scope of state-owned enterprises, see Philip C. China , Some private businesses may succeed in virtue of being embedded in symbiotic patronage networks with government officials. For an interesting discussion of the various tools of economic predictability that may be available to the Chinese economy, see Donald C.
It may also be the case that legal protections for businesses are the result of the need to promote foreign investment, and hence businesses that are foreign-owned, trade with foreigners, or share geographic, market sector legal regimes with foreign investors may be more protected.
At any rate, I am no expert in the Chinese economy or the mechanisms by which the expectations of economic actors are secured, but I merely note here that we may safely infer, from the immense success of the Chinese economy, that those expectations have somehow been secured to at least a minimal degree.
It is striking how the Chinese economy has managed to boom even in the face of some profound built-in uncertainties about the basics of economic activity, such as the stability of land tenure. However, at least one scholar has argued that the absence of stable legal expectations, in conjunction with patronage networks, has been positively advantageous for Chinese economic development.
In part, this may be due to the development of technological tools to exercise arbitrary power without the direct application of violence, such as pervasive surveillance combined with the capacity to ratchet down the affordances of daily life in order to sanction disfavored citizens. Asian L. And while China undoubtedly delivers some of its arbitrary power with violence it requires soldiers to put the Uighurs into concentration camps , 80 See supra note 75 and accompanying text describing Chinese concentration camps for Uighurs.
According to one scholar of Chinese politics, China has been able to control the police in part by skillfully sharing authority and bureaucratic spoils with police chiefs. In that sense, China might represent a novel variation on the discretionary administrative state that classical rule of law scholars feared, in which ordinary citizens are simply subject to increasingly oppressive bureaucratic supervision.
It remains to be seen whether this version of arbitrary power will ultimately be compatible with the preconditions of economic success, but the economic, military, and political prominence of China thus far suggests that it may well be. If a dual state is possible without undermining the stability of those legal rules that protect the holders of property, then property-holding elites may lack an incentive to support legal constraints that may protect non-property-holders. It is also important to note that the possibility of establishing a dual state might not be the only way that interest polarization could lead to a breakdown in the rule of law.
Another grim scenario is one in which the state provides legal protections to nobody, but the wealthy and powerful are able to defend their own property with mercenaries. To the extent the owners of capital believe that they might be able to protect themselves in the absence of a legal order, once again, they may lack sufficient incentive to defend the rule of law in unison with non-property-owners.
Times Mag. This is especially true if the absence of the rule of law with respect to non-property-holders facilitates the exploitation of labor or otherwise promotes the profits of property-holders. For that reason, the problem of China represents an urgent research question for rule of law advocates in the United States as well—what, precisely, is it that keeps the Chinese government from expropriating Alibaba, Foxconn, and the other immense economic enterprises in the country—and is that factor: a sufficiently stable, relative to the likely shocks that China may experience, to permit it to continue and to permit the leaders of those companies to feel relatively secure even in the absence of a general rule of law protecting, for example, the Uighurs; and b capable of being exported to other social, economic, and political contexts, such as the United States?
If so, the rule of law in the contexts to which that model might be exported is in danger, for such a model permits the interests of property-holders and non-property-holders in the protection of the rule of law to diverge.
In Part I of this Essay, I noted the existence of genuine rule of law worries on both sides of our contemporary ideological divide. But the potential leakage of our ideological divisions into our estimations of the state of the rule of law itself represents a substantial cause for fear. Such polarization is not, of course, limited to the rule of law, and indeed may be most vividly illustrated in differences in response across party lines to the COVID crisis. Suppose it is the case that I and my fellow leftists, and our equivalents a similar distance on the right, are equally committed to the rule of law and to the maintenance of the existing legal system, but have radically different perceptions of whence the short-term threat comes.
Due to familiar pathologies from social psychology as well as partisan networks, such as partisan informational bias and group polarization, 85 See, e. Consider impeachment. I disagree with that argument, but a reasonable person with different epistemic starting points could believe it.
Epistemic polarization is not just and may not be primarily a general, public phenomenon. It is also an expert phenomenon that undermines our ability to diagnose rule of law threats in the first place. Arguably, legal academics, political scientists, and other scholars who care about such things, stand in a similar position as the courts and the free press.
That is, all are expert or potentially expert evaluators of whether officials are complying with the law, and hence as among those institutions that, in a healthy rule of law system, would help send signals on which the public could coordinate—in particular, signals to tell the public when their officials are disobeying the law, and hence when it is time to take mass action to sanction those officials.
Obviously, the judgments of the courts ought to generally count for rather more than ours. Ideally functioning institutions for coordination would have the capacity to aggregate different interests and epistemic standpoints to generate something like common knowledge of the conditions under which collective action is necessary to defend the rule of law.
Considering courts again as the key example, one of the reasons why ordinary citizens should be able to rely on the judgment of a well-functioning Supreme Court is that such a well-functioning court should be relatively immune from epistemic polarization, insofar as it should have the capacity to generate and display consensus from diverse sub-groups of legal experts within the institution itself; or, to the extent there are disagreements, those disagreements ought not to just track partisan backgrounds of the justices.
Shifting to scholars, I myself began, when Trump took office, less confident than I otherwise would have been in my judgment about the dangers posed by Donald Trump because competent people on the other partisan side did not seem to universally agree.
Arguably, such ideal consensus could also increase the capacity of judicial institutions and likewise, academics, the press, and others to win the trust of the public at large, to be seen as representing judgments that transcend ideology and interest rather than reflect them.
However, that last proposition—commonly believed, for example, among lawyers who have attended to the motivations of Chief Justices like Marshall and Warren to produce unanimous opinions in important cases—may not be supported by the evidence.
For some empirical evidence that casts doubt on the claim that public acceptance of a decision is enhanced by unanimity, see Michael F. Salamone and Bentsen offer evidence that dissents might increase the perceived legitimacy of a decision, and suggest that this is because such dissents may be taken to represent procedural justice by having all sides of an argument heard. See id. Even if unanimity does not enhance public trust, it still seems eminently plausible that blatant partisan decisionmaking—such as a large number of prominent decisions in which the Court is divided along the lines of the party of the president who appointed a given justice—can undermine that trust.
And, if epistemic polarization in fact extends to the point that the Supreme Court is widely distrusted, it no longer can send credible signals of official lawbreaking. Thus, its capacity to facilitate public coordination in defense of the rule of law may be seriously undermined. If this is a problem for courts, it is an even worse problem for the press, academia, and the like, since the Supreme Court usually has the advantage of clear decision rules to aggregate divided opinions.
Even in a controversial decision along partisan lines, the public can identify the outcome. For that reason, if the public generally accepts the legitimacy of the Supreme Court as constitutional interpreter, they can coordinate even on the basis of a highly polarized result at least until things get so bad that the people have to deal with pluralities, and proliferations of complex opinions without a clear outcome. Gore , U. But other institutions that may serve as a coordinating function and currently appear to be highly polarized, like the press and academia, do not benefit from such a rule.
Accordingly, it is much clearer that polarization in the case of academia and the press hurts their ability to help the public determine the lawfulness of their officials, for those polarized institutions cannot send clear signals at all.
At least as a tentative hypothesis, then, it seems reasonable to state that if experts—in bench, bar, academy, political institutions, and the press—display radical epistemic polarization, looking at the world and seeing entirely different phenomena, that undermines their capacity to help the general public figure out whether they need to mobilize to keep their officials in line. So, in a world where journalists, academics, and the like regularly display extreme disagreement about the lawfulness of official behavior, it is reasonable for a citizen to conclude that the general population also suffers from such disagreements.
Such a citizen may thus conclude that their fellows cannot be counted on to support them in collective action. It may be that I am overestimating the amount of polarization from which the United States is suffering, whether interest or epistemic and mass or elite.
But there is empirical evidence to suggest that we have good reason to be worried about the degree of epistemic polarization with respect to the rule of law. See John M.
Moreover—this is the ultimate point of this Part—if there really is such extreme polarization, whether epistemic or interest-based, it is a danger to the rule of law regardless of the intentions of the current occupant of the Oval Office. It tells our fellow citizens that they cannot rely on one another to act in a unified fashion in the event that they perceive official lawlessness; and it sends the same message to those who hold official power and may wish to abuse it.
So, even if Donald Trump has no plans to cast aside the rule of law, some later president might even if they are a Democrat! Such a president has an incentive to grab power, because they know that the rest of us cannot get it together long enough to resist them. This is very troubling indeed.
I think there is strong reason to believe that we are presently experiencing an extreme degree of epistemic polarization, particularly in the judiciary. As Jack Balkin explains in a recent book, judges are embedded in networks of legal elites including politicians and law professors whose opinions matter to them, and, in times of political polarization, as the opinions of those elites diverge, we can expect judicial perceptions of even what the basic norms of democracy or, I would add, the rule of law require to diverge.
Balkin, The Cycles of Constitutional Time , , Put differently, partisan political science-style polarization drives a divergence in the views, including legal views, of non-judicial legal and social elites, and, since judges are embedded in social networks of such elites, ultimately leads to judicial divergence as well.
This is doubly the case when, as Balkin also points out, the appointment process has been deeply politicized, in particular, with a President who has chosen to appoint judges who have been explicitly vetted by conservative legal elites.
As this Essay goes to press, the polarized appointments process reached a new fever pitch with the passing of Justice Ginsburg, which is discussed in a postscript below. See infra Postscript. This further exacerbates the worries I have described in this Essay about the ability of the courts, and particularly the Supreme Court, to credibly signal to the public whether their elected officials are obeying the law.
Consider the following thought experiment: suppose that before a replacement for Justice Ginsburg is confirmed and amidst contentious Congressional hearings on the nomination, the Supreme Court, in a tied decision with John Roberts voting with the liberals, affirms a lower-court order requiring Donald Trump to turn over his tax returns to the House of Representatives. Now suppose Trump decides to defy the decision and take to Twitter accusing half of the Justices of being liberals bent on undermining his efforts to make America great.
Does the recent history of partisan warfare over judicial nominations as described in Balkin, supra note 91, at provide much reason to believe that those actions would cost him a significant amount of support in the electorate.
While Balkin points to the Supreme Court as a key indicator of judicial polarization, 94 See, e. New York, S. At least two Trump-appointed district court judges have struck down state and municipal public health orders to prevent the transmission of COVID Wolf, No. Fischer, No. In doing so, both have disregarded longstanding controlling Supreme Court precedent, 96 See Jacobson v.
Massachusetts, U. In the first of those cases, a district court judge explicitly and openly appealed to the language of Christian theology complete with Bible quotes to explain the basis of his ruling in favor of a church that had allegedly been ordered to not hold Easter services due to the danger of COVID transmission. That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion.
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