For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023).
Lawrence B. Solum
Aileen Kavanagh’s important book, The Collaborative Constitution, offers a deep, insightful, and optimistic analysis of constitutional theory that aims to displace the conventional narrative that pits judicial supremacy and the institution of judicial review against a form of legislative supremacy that would take constitutions away from the courts. Kavanagh’s alternative is a collaborative constitution—in which the constitutional order is structured via interactions between judicial, legislative, and executive institutions and actors. Kavanagh mostly explores these themes in the context of the United Kingdom with less extensive discussion of Canada and other commonwealth systems. Although the theoretical chapters in the beginning of the book are framed generally, Kavanagh chose not to engage in in-depth exploration of the implications of her theoretical framework for other constitutional orders, including that of the United States. A wise choice, given the effort required to apply a rich constitutional theory to even a single constitutional system.
Nonetheless, Kavanagh’s book will prompt many readers to ask, “How could Kavanagh’s framework be applied to the American context?” There are, of course, many obvious differences between the UK and the US. Some of those differences are legal. The US has an integrated text that constitutes its written Constitution, but the UK’s constitutional order is an amalgam of written documents and unwritten norms and conventions. In the US, federalism is understood as a fundamental restraint that Congress cannot override, but in the UK the devolution or centralization of power is (at least in theory) subject to ordinary legislation enacted by Parliament. In the US, divided government (different parties control the presidency and Congress) is common, but in the UK, Prime Ministers and their cabinets must have the support of Parliament and usually the PM is the leader of a party with a parliamentary majority. Other differences are jurisprudential. Constitutional theory in the US is dominated by the debate between originalism and living constitutionalism, but that debate is peripheral or irrelevant in the UK.
Another major difference between thinking about constitutionalism in the US and the UK is political. Politics in the US in the third decade of the twenty-first century is deeply conflictual and marked by political polarization that many think is extreme. Politics in the UK involves sharp disagreements, but the degree and depth of divisiveness may be different. Because divided government is impossible in a parliamentary system, polarization plays out in different ways. Both the US and the UK are both characterized by pluralism—with no deep consensus on fundamental matters of religion, morality, and political ideology. The social, political, and institutional differences between the US and the UK raise the question whether the preconditions that enable collaborative constitutionalism in the UK are present in the US. And if the answer to that question is “no,” that raises are further question about the long run stability of collaborative constitutionalism in the UK.
Kavanagh hints at these questions in the following passage from page 110 of The Collaborative Constitution:
The existence or prevalence of sharp conflict and angry contestation between the branches does not mean that this is how the constitutional relationships ought to be conducted. If political actors try to eviscerate the jurisdiction of the courts or discredit the legitimacy of the courts in a way which undermines their ability to carry out their judicial role, then those actors have violated the norms of the collaborative constitution on which a well-functioning constitution depends. Whilst the branches of government can tolerate a degree of antagonism and confrontation at times, it cannot be conflict all the way down. Nor can there be conflict all the time. For a healthy system of constitutional government to exist – and, crucially, to persist over time – the interaction between the branches must be based on unwritten conventions and ‘tacit understandings’ that the branches of government will treat each other with comity and respect. As with all long-term relationships, the relationship between the branches cannot plausibly be based on conflict.
It is clear that politics in the United States frequently depart from norms of comity and respect. In the constitutional realm, a set of norms that enabled collaboration seems to be giving way to constitutional hardball.
The erosion of norms and the rise of constitutional hardball is especially clear in the context of the judicial selection, especially for vacancies on the United States Supreme Court. Whereas there was once a norm that the Senate would confirm presidential nominees to the Supreme Court, so long as they were qualified and did not represent an extremist political ideology, the process is now characterized by conflict and obstruction. Democrats point to the Senate Republican majority denying President Obama’s nominee, Merrick Garland, a vote and characterize Justice Neil Gorsuch’s eventual nomination and confirmation as a “stolen seat.” Republicans have their own litany of grievances beginning with the successful Democratic effort to block the appoint of Judge Robert Bork to the seat vacated by the retirement of Justice Lewis Powell. The judicial selection process has undergone a decades long downward spiral of politicization. If Donald Trump becomes President but Democrats retain control of the Senate, it is not clear that any nominees to judicial office will be confirmed during Trump’s four-year term.
Kavanagh describes her theory as both descriptive and prescriptive. In the case of the UK, she argues that collaborative constitutionalism provides the best description of the basic structure of the existing constitutional order and offers prescriptions for its improvement. Kavanagh does not opine in her book on the question whether the existing constitution order in the United States can be described as one of collaborative constitutionalism; nor does she address the question whether moves towards collaborative constitutionalism are possible or desirable under the current political conditions in the US. Can collaborative constitutionalism work under conditions of extreme political polarization where many constitutional norms have broken down and constitutional hardball has become the rule rather than the exception?
These differences between the US and the UK, suggest an important question: What are the preconditions of collaborative constitutionalism? And what tools do we need to think about that question in a rigorous and systematic way? One starting point is the distinction between ideal and nonideal theory deployed by the philosopher John Rawls in his magnificent and hugely influential book, A Theory of Justice and its sequel, Political Liberalism. An important role of the prescriptive component of Kavanagh’s collaborative constitutionalism is that it offers an ideal normative theory of constitutionalism: constitutional practice would be collaborative in an ideal case. In the less-than-perfect actual world, it may well be the case that a system that is mostly collaborative can be made better by moving towards the collaborative ideal. But those conclusions about what is good for a mostly collaborative constitutional order may not provide recommendations that are appropriate for a society characterized by deep pluralism, extreme polarization, and substantial erosion of the constitutional norms required for collaboration. And it is not clear that the kind of collaboration that works in the UK can easily be transplanted to a constitutional system where collaboration requires enlisting the support of the President, the Senate, the House of Representatives, the Supreme Court, and fifty state systems, especially in times of divided government, during which different parties control different institutions. Polycentricity comes in degrees, and the constitutional system in the US involves a greater dispersion of power and authority than does the system in the UK. The polycentricity of the American constitutional order is, in part, a matter of constitutional design—explained and argued for by James Madison in Federalist 10. As polycentricity increases, the obstacles that face collaborative constitutionalism may increase: the greater the number of institutions and individuals that must cooperate, the more difficult it will be to reach consensus on the ground rules that govern constitutional practice.
Moreover, the theory of the second best teaches us that incremental adjustments in the direction of the ideal conditions may actually be counterproductive or harmful when the ideal system is outside the feasible choice set. A theory of collaborative constitutionalism is not a magic wand—no theory is. Insisting on respect for norms of civility and respect may be futile. Injunctions against constitutional hardball may go unheeded. And channeling political energy into the quest for the unattainable may divert attention from the hard choices that cannot be avoided in the second-best world of American constitutional politics.
Analysis of the preconditions of collaborative constitutionalism must consider the nature of constitutional disagreement. The possibility of collaboration depends in part on the questions facing the constitutional system. As Kavanagh puts it, collaborative constitutionalism requires “compromise rather than combat” (p. 102), but not every constitutional question lends itself to compromise. Compromise is particularly difficult when what are sometimes called “transcendent interests” are involved. An interest is transcendent when it involves some moral or religious value or issue that is of paramount importance. For example, it may well be that the constitutional questions about abortion and reproductive autonomy involve transcendent interests. On the one hand, those who oppose a constitutional right to abortion may believe that recognition of such a right is inconsistent with a transcendent interest in the sanctity of human life. On the other hand, those who support a constitutional right to reproductive autonomy may believe that such a right is essential to the transcendent interest in the moral and political equality of women. If each side views its interest as transcendent and if collaborative constitutionalism requires that they compromise, then something must give way. If neither side is willing to revise its view about the transcendent nature of the interest at stake, then both sides may come to believe that they are morally obligated to set aside the constitutional norms that constrain them in the constitutional battle on the issue of abortion. For them, constitutional hardball may become a moral imperative. In this scenario, collaborative constitutionalism would give way to agonistic constitutionalism, no holds barred conflict over the content of constitutional law. Once the battle is joined, it may be difficult to restrict the conflict to the issues of transcendent importance.
When norms give way, it may be like a dam that bursts—a trickle rapidly becomes a flood. In the world of agonistic constitutionalism, the life of constitutional doctrines could be nasty, brutish, and short—with longstanding precedents on the chopping block when the ideological balance on the Supreme Court tips in a new direction. In a worst case, scenario political actors might respond by direct manipulation of the Court, gaming the confirmation process or directly expanding the number of seats in order to reverse a decision abhorred by the President and a majority of Senators—“court packing” in American constitutional parlance. It seems inevitable that court packing would provoke retaliation in kind when the politics flip. One can imagine the number of Justices growing from 9 to 15 and then from 15 to 27, with no end in sight. The Supreme Court’s marble palace might be joined by a less impressive office tower with plenty of room for the new Justices.
The problem of compromise on issues of transcendent importance raises important questions that Kavanagh does not address. In the American context, these questions include: (1) what issues are appropriate for resolution by ongoing constitutional collaboration or litigation, (2) what issues are to be regarded as settled unless and until the constitution is formally amended, and (3) what role does the text of the written constitution play in constitutional systems that have adopted such a document? My reading of Kavanagh—I might be mistaken—is that she does not take these questions head on—certainly not with respect to transcendent issues in the context of a deeply polarized society in which constitutional hardball has become the norm.
Kavanagh has almost nothing to say about originalism or living constitutionalism in The Collaborative Constitution. Neither “living constitutionalism” nor its Canadian cousin, “the living tree” are mentioned even once in the text of Kavanagh’s book. The word “originalism” does make one appearance, when Kavanagh rejects “crude originalism, which seeks to draw a conclusive connection between legislative history and legal meaning.” (p. 352) This brief passage addresses a form of originalism largely abandoned more than three decades ago and says nothing about the central thesis of contemporary originalist theory—that the original public meaning of the constitutional text ought to constrain constitutional practice by all of the actors that Kavanagh envisions as the agents of collaborative constitutionalism (including courts, legislatures, and executives). Kavanagh’s framing of the issues in The Collaborative Constitution ignores an alternative to both judicial and legislative supremacy as well as collaborative constitutionalism. That alternative, which might be called “constitutional supremacy,” is the view that the communicative content of the constitutional text ought to constrain all constitutional actors, limiting both collaboration and conflict. I have offered an alternative framing that puts constitutional supremacy on the table in Outcome Reasons and Process Reasons in Normative Constitutional Theory.
Of course, Kavanagh’s investigation is limited to the UK, which lacks an integrated constitutional text. So, her failure to address originalism is neither an oversight nor an unexplained omission. Nonetheless, we can ask whether Kavanagh’s theory has implications for the great debate in American constitutional theory between living constitutionalism and originalism.
One possibility is that Kavanagh might argue that this debate should itself be the subject of collaborative constitutionalism. Perhaps, Congress, the Supreme Court, and the President should engage in a civil and respectful process of interaction and arrive at a provisional and revisable settlement of the respective roles of constitutional text, judicial construction, legislation, and executive action in the determination of the content of constitutional law. Before I say more, I want to make it clear that there is something deeply right about this move—should Kavanagh choose to make it. The debate between originalism and living constitutionalism is ultimately about the fundamental norms that govern constitutional practice. If those norms are contested, we must attend to considerations of political morality if we are to resolve the contest on the basis of reason rather than raw power. Originalists maintain that constitutional actors should adhere to a constitutional norm that reflects what is called the “Constraint Principle”: constitutional doctrine ought to be consistent with, fully expressive of, and fairly traceable to the original public meaning of the constitutional text. The originalist case for treating the constitutional text as binding cannot be summarized here, but it rests on fundamental values of political morality, including legitimacy and the rule of law.
As Kavanagh, following H.L.A. Hart, emphasizes, the bedrock norms of constitutional practice are social, not legal. And as social norms they must operate based on a social consensus (among officials at a minimum). The Supreme Court cannot permanently settle the debate between originalism and living constitutionalism by issuing an opinion declaring that “originalism is our law.” Likewise, Congress cannot ensure long-term victory for living constitutionalism by enacting a statute that attempted to mandate a common law constitution or to abolish the institution of judicial review. Such attempts can only succeed if they are consistent with the fundamental social norms that give institutions legal and political authority.
But if the debate between originalists and living constitutionalists must or should be settled collaboratively, that does not entail the further conclusion that the best outcome is whatever compromise results from an interactive process of give and take involving the three branches of government at both the state and federal level. The observation that a collaborative process is required to establish a constitutional order does not entail the further conclusion that the process itself is the ultimate criteria for the goodness of the outcome.
Once we focus on the preconditions for collaborative constitutionalism and their relationship to pluralism, polarization, and the erosion of constitutional norms, it becomes apparent that living constitutionalism and originalism differ with respect to the demands they place on the constitutional system as a whole. Living constitutionalism entails that the constitutional order is in a sense “always up for grabs.” If questions of transcendent importance are on the table, then resolving those questions will put extreme pressure on a system of voluntary cooperation between actors and institutions that regard those questions as outside the realm of compromise.
Originalism has a fundamentally different approach to the question as to what is “up for grabs” in constitutional politics. Originalists argue that the constitutional text settles some issues and leaves other to democratic politics. But when originalists advance this argument, they should not exaggerate the extent to which the constitution gives determinate answers. Some constitutional provisions may be vague or open-textured, creating zones of underdetermination where either courts or political actors will need to create implementing rules or practices to resolve particular cases or issues. But an acknowledgement of modest constitutional underdeterminacy should not be mistaken for the wrongheaded view that the text of the United States Constitution is radically indeterminate. That view is simply false, and any attempt to demonstrate that it is true must consider the constitution clause-by-clause in light of the evidence of constitutional meaning. Handwaving and assertion are simply not enough.
In the American context, originalism entails that fundamental constitutional change be channeled through the Article V amendment process and not through constitutional litigation or tacit constitutional compromise between the Supreme Court, Congress, and the President. Because Article V requires ratification by a supermajority, constitutional amendments usually require a relatively high degree of stable social consensus for their enactment—although there may be exceptions such as the failed 18th Amendment, mandating the prohibition of alcohol, later repealed by the 21st Amendment, returning control of this issue to the states.
Living constitutionalism, on the other hand, entails that every constitutional question is open to an ongoing process of revision. American constitutional theorists support different versions of living constitutionalism including Common Law Constitutionalism, Constitutional Pluralism, and the Moral Readings Theory, but Kavanagh might prefer that living constitutionalism take the form of constitutional collaboration. Whatever form it takes, living constitutionalism maintains that the Article V process is always an option but never a strict requirement. If everything is up for grabs and the Supreme Court is the preferred agent of constitutional change, control of the Court is a very high stakes game and constitutional hardball may be the rational strategy for those who play.
Does the American case have implications for collaborative constitutionalism in the UK and elsewhere? Someone might argue that the US is an outlier, a tragic case of constitutional rot undermining the conditions for collaborative constitutionalism—but lacking significance for This way of thinking is tempting, especially for optimists, but it assumes a short-term perspective. Even if the UK is immune from an infestation of constitutional rot next year or even for the next decade, it seems naïve to assume that the forces that have undermined the conditions of collaborative constitutionalism in the US could never take hold in the UK. Both history and the current state of democracy worldwide suggest that the possibility of democratic backsliding is not a dystopian nightmare—the erosion of constitutional norms is a real threat.
Normative constitutional theory can and should be realistic. That does not mean that constitutional theorists should eschew ideal theory—envisioning a first-best constitutional order can perform an important role in guiding constitutional practice in our second-best constitutional world. But the attractiveness of ideal constitutional theory should not blind us to the practical necessity of focusing on the feasible choice set—the options that are possible in the here and now and for the foreseeable future. We need both ideal and nonideal theory.
And when we investigate the real world of second-best options, we may have good reason to consider worst-case scenarios. It should count as a real virtue of a constitutional design that it provides backstops, guardrails against a downward spiral of politicization that could turn constitutional rot into constitutional dystopia. In the US, the backstop that could have been provided by the written constitution was dissolved by a living constitutionalism that put most of the fundamental constitutional questions up for grabs—with much of the grabbing done by the Supreme Court. One way of thinking about originalism is to conceive it as an effort to restore the role of the constitutional text as a fixed point in constitutional politics.
So long as the UK continues to resist the adoption of a written constitution, originalism will simply not be an option for its constitutional order. Instead, a social consensus on fundamental constitutional norms has provided a stable foundation for UK constitutionalism. What happens if the consensus breaks down and collaborative constitutionalism gives way to constitutional hardball and no-holds-barred conflict? Kavanagh tells us that in this scenario, the preconditions for collaborative constitutionalism won’t be satisfied. But what is the alternative? The question itself is disturbing, but sometimes disturbing questions deserve an answer.
Lawrence B. Solum is William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law & Douglas D. Drysdale Research Professor of Law at the University of Virginia. You can reach him by e-mail at lsolum@law.virginia.edu.
