Fixing the Constitution

Early in his account of late 18th century American politics, a world like all others full of hucksters and wordsmiths, frauds and geniuses, Jonathan Gienapp defends the value he places on argument.  Yes, the members of Congress were often overwrought, and not infrequently bought, but ‘that ideas and interests stand in fundamental opposition’ is a false dichotomy.  To understand the consequences of political argument, ‘to understand how certain arguments reveal certain forms of constitutional imagination’, we need to look harder at ‘how some forms of imagination acquired power and resonance, … how some imaginings took on lives of their own.’[1]9780674185043-lg

Gienapp  offers an exhilarating narrative of how the United States Constitution acquired its extraordinary place in the American psyche.  Gienapp argues that it was not conceived of as revolutionary in itself.  Writing a constitution was however a moment of sovereign action, and would thereafter become further enshrined as foundational, and that foundational characteristic passed to the text itself.  What could have been a relatively flexible instrument of governance became solidified over the course of a decade into a sacred history.

The first and obvious question is bound to be where this account leaves originalism, the view that the Constitution of the United States should be understood in terms of the original meaning of the text which was fixed at the time of adoption.[2]   In some ways Gienapp’s account is clearly damaging to that notion, but it may not be wholly fatal.  Some of the arguments in the first decade of the American Republic are less with what the Constitution said and more with what it did not say, and what one should do about an omission.  So the realization that the Constitution is unfinished or unclear raises the issue of what to do about it which takes one to amendments and so forth, but one could argue that the lawgivers of the time were not operating with totally different understandings of the text.

Originalism is regarded by its defenders as a way of lifting decision-making beyond politics; it constrains judicial interpretation.  Opponents tend to see it as restraining progressive interpretations of the law but permissive of entrenched positions (though you certainly can be an originalist and a progressive, at least to a degree).[3]

However, the question which Gienapp’s account raises is what authority this text is actually representing.  The answer is, I think, that the Constitution comes to be a fixed text representing popular sovereignty, in which the people of course are in constant flux.  This is the radical tension which exists between lasting instruments of government and the principle that power derives from those over whom it is exercised and who have the right to change whoever exercises it.

The nexus between originalism and sovereignty has been explored by David Singh Grewal and Jedediah Purdy uses a brilliant review of Richard Tuck’s important book The Sleeping Sovereign: The Invention of Modern Democracy to develop a far-reaching political critique.[4]  The original Constitution on their account is a moment of popular authorship.[5]  There is then an issue of popular ongoing consent, largely by a ‘sleeping’ sovereign, unless and until called upon to make an active choice by election or plebiscite. 9781107570580

Tuck argues that constitutions were inherently revisable, and Singh Grewal and Purdy take from that the line of argument against the challenge raised by Article V, which makes it practically very difficult to amend the Constitution.  This tension between popular authorship and then the absence of renewal is of course well-known, and Singh Grewal and Purdy introduce the notion of ‘multitudinous constitutionalism’ as a description of the unsatisfactory and ambiguous way in which the people is allowed to speak.  They aptly refer to Hobbes’ brilliant notion of the mumbling of the sovereign, unable to wake from dreaming.

As an answer, they argue, originalism fails in two ways.  First, it is not clear that originalism is the only way to protect the joint principles of popular authorship and present consent; second, originalism loses plausibility the longer the Constitution remains fixed.[6]  On the one hand the community is too far distant from the original pact and on the other, it is constrained to reinterpret rather than fundamentally change something which is of little more than antiquarian interest.  It is round about here, in their objections to living constitutionalism, that Singh Grewal and Purdy begin to diverge from Tuck, by cautiously suggesting outcome based decision-making, rather than Tuck’s plebiscitary democracy.

The plebiscitary approach is of course under much scrutiny in the UK.  We have recently had three consecutive referendums.  The first on proportional representation, ironically granted as the result of a coalition government, was up against repeated arguments that such a system would increase the number of coalitions and reduce parliamentary accountability to the people.[7]

The second referendum was on the independence of Scotland.  A strong argument was made on both sides of the border in favour of Scotland remaining in the United Kingdom so that it would not be forced out of the European Union.  Scotland then voted substantially to remain in the European Union in a third referendum, only to find itself outnumbered, and liable to be dragged out perforce.

This third referendum is in miniature a reflection of the problems which Gienapp illustrates in the case of the American Constitution, in that no sooner had it been ratified than arguments broke out over what it meant.  The vote to leave the European Union gave an unnuanced answer to a simplistic question.  Just as the Constitution became a fossilised place maker for the original act of popular authorship, and precluded subsequent present consent, so the Brexit referendum was an incomplete statement which has become a practically unamendable decision, itself entailing unforeseen consequences, whose original meaning can hardly be unearthed.[8]  One is struck by the way that Madison, who saw the Constitution as an instrument, over time was forced to present it as a sacred text – as Gienapp puts it ‘”parchment barriers” had become “political scriptures.”’[9]

In short, an occasionally awake sovereign people and parliament has collectively proven unequal, practically and theoretically, to the complex 21st century relationship between legitimacy and governance.  Ultimately, we may need to look elsewhere, conscious that the negotiation between popular authorship and present consent has no easy answer.  One place we might look is Rome.  [10]

[1] Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Harvard 2018): 17.

[2] See https://balkin.blogspot.com/ for essays arising from a symposium on the book, and Gienapp’s response, all of which have informed the next section of this argument.

[3] It is very interesting to note that the Supreme Court is absent from these early years; no-one can really regard the Supreme Court as an apolitical body after the nomination scandals of the past decade.

[4] David Singh Grewal & Jedediah S. Purdy, ‘The Original Theory of Constitutionalism,’ Yale Law Journal 127 (2018): 664-705 (reviewing Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (2016)) https://www.yalelawjournal.org/pdf/GrewalPurdy_y8gt1cch.pdf.

[5] What Gienapp makes clear is that it was actually a moment of Gouverneur Morris’ last-minute brilliant drafting, but that’s not relevant to the point of principle

[6] Singh Grewal and Purdy note that the second objection applies equally to ‘living constitutionalism,’ which places more emphasis on current community interpretations.

[7] Our current position is that the UK has a minority government sustained by the Democratic Unionist Party, which polled a minority of votes in Northern Ireland, and which has insisted on specific measure in regard to the border between Northern Ireland and the Republic of Ireland which appear to be out of step with public opinion in Northern Ireland.  Moreover, the stresses of recent times have rendered ever more visible the fact that both main parties are in fact profoundly internally factional.  Both could relatively easily divide in two, and in both instances MPs often have beliefs and sometimes, as representatives, cast votes against, the views of their constituency and even their own constituency party.  For some thoughts on the problems of contemporary parties see https://wordpress.com/post/anatomiesofpower.wordpress.com/127.

[8] We presently hover on the edge of a second vote.

[9] Gienapp, The Second Creation, 201.  It might be argued that the European Union risks being forced into dogmatic positions in the same negotiating process, in a kind of collateral damage.

[10]  https://anatomiesofpower.wordpress.com/2019/02/25/constitution-in-crisis/

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