Podcast Summary
The evolution of constitutional politics in America: The shift towards judicial supremacy in constitutional interpretation has contributed to the collapse of liberal constitutional politics and the rise of conservative victories. A renewed progressive vision might emphasize the political nature of the constitution and engage in a vibrant politics around its interpretation.
The history of constitutional politics in America has seen the rise and fall of different approaches to interpreting the constitution. Originally, the constitution was seen as a charter for creating a republic, and interpretations of it rested with the community at large. However, with the emergence of judicial review, the role of courts in interpreting the constitution shifted, leading to a doctrine of judicial supremacy where the word of judges became final. This shift, as argued by Larry Kramer, contributed to the collapse of liberal constitutional politics and the conservative victories of recent years. It's important to remember that the constitution is not an empty charter, but a document with a political goal. A renewed progressive vision of the constitution might involve re-emphasizing the political nature of the document and engaging in a vibrant politics around its interpretation.
Understanding the role of courts in interpreting the Constitution: Judicial review allows courts to determine law constitutionality, but doesn't make their decision final. Departamentalism acknowledges each branch interprets Constitution within its sphere, ultimately decided by the community.
The distinction between judicial review and judicial supremacy is crucial in understanding the role of the courts in interpreting the Constitution. For most of American history, courts were not considered to have the final say over constitutional matters. However, the landmark case of Marbury v Madison, often thought of as establishing judicial review, actually rejected the idea of judicial supremacy. The distinction lies in who gets to make the final and binding decision about constitutional interpretation. Judicial review allows courts to determine if a law is constitutional in a specific case, but it does not mean that their decision is the final word. Departmentalism, the theory that each branch of government has the authority to interpret the Constitution within its sphere, reflects this idea. It's an agency problem where each branch has its say, but the community at large ultimately decides the outcome. This understanding of the relationship between the branches and the Constitution provides valuable context for ongoing political debates.
The Interpretation of the US Constitution: A Contentious Debate: The interpretation of the US Constitution has been a subject of continuous debate since its founding, with disagreements over the role of the courts and legislative branch in constitutional matters influenced by political ideologies.
The interpretation and application of the US Constitution have been subjects of continuous debate since the country's founding. Initially, there were disagreements over the nature of the Constitution and its interpretation. By the late 1800s, the debate shifted to whether the courts or the legislative branch held the final say in constitutional matters. This conflict was influenced by political ideologies, with those favoring popular authority opposing judicial pretensions and those skeptical of democracy supporting them. Throughout history, the court's authority was challenged during periods of weak or divided government, but it was only in the mid-20th century that the Warren Court, an activist and liberal court, asserted its authority and changed the debate to focus on how the Constitution should be interpreted.
Judicial supremacy in times of government division: During deep divisions among branches of government, the court holds significant power. However, checks and balances, such as court packing, jurisdiction stripping, and budget slashing, help maintain balance.
The court's power is at its peak when other branches of government are deeply divided, leading to paralysis and making it difficult for them to act. During these periods, the court becomes the most potent institution. However, this judicial supremacy comes with the need for checks and balances. If the branches of government disagree with the court's decisions, they typically don't ignore them but instead use tools like court packing, jurisdiction stripping, or budget slashing, which are effective when the same party controls the presidency and both houses of Congress. To maintain this balance, modern constitutions feature courts with judges with limited terms and supermajority requirements for appointments, making appointments more centrist. Additionally, the constitution provides Congress with the power to control the court's composition, budget, and jurisdiction, offering various ways to keep the court in check.
Tools used to influence the judiciary's direction in American history: Judicial independence has been a contentious issue, with methods like court packing and public awareness used to align the court with the public's will, but these methods have been criticized and delegitimized, and the acceptance of judicial supremacy has normalized the court's power to interpret the Constitution.
Throughout American history, the concept of judicial independence has been a contentious issue. When the court's decisions diverge significantly from the public's will, tools like court packing and raising public awareness have been used to bring the court back in line. These methods, which are consistent with judicial independence, have been criticized and delegitimized, but they have also been a part of the democratic process. Roosevelt's attempt to pack the court during the New Deal era is often viewed as a political failure, but it was actually part of a larger campaign to challenge the court's outdated interpretations and bring it back in sync with the country. Roosevelt's proposal to pack the court was not a new idea; it had been used throughout American history as a way to control the size and direction of the court. The acceptance of judicial supremacy, which holds that the court has the final say on constitutional matters, has become more normalized in American politics. However, the question of who gets to interpret the Constitution remains a complex issue. While political actors may have views on the Constitution, ultimately, the court holds significant power in interpreting its meaning. This dynamic raises questions about the balance of power in a democratic system and the role of the community in shaping the Constitution.
Ongoing struggle over constitutional interpretation: The interpretation of the U.S. Constitution and its impact on society has been a contentious issue, with debates over individual rights and government role ongoing since its founding.
The interpretation of the U.S. Constitution and its impact on society has been a contentious issue throughout American history. Different groups have had varying visions of what the Constitution should produce for the people, from an agrarian republic to a commercial republic, and more recently, debates over the role of government and individual rights. The Dobbs decision and the dissent reflect this ongoing struggle over constitutional interpretation, with originalist arguments and the balance of power between branches of government at play. The idea of popular constitutionalism suggests that the community at large should have the final say in interpreting the Constitution and its limits on government, but this is a complex and messy process. The Dobbs decision and dissent, like many constitutional debates, reveal the ongoing tension between individual rights and the role of government.
Supreme Court's Abortion Decision: A Weak Defense of Reproductive Autonomy: The recent Supreme Court decision on abortion lacked a strong argument for reproductive autonomy, relying heavily on stare decisis. The equal protection basis for this right was not well-developed, and dissenters did not engage on the merits.
The recent Supreme Court decision on abortion rights lacked a strong defense of the right to reproductive autonomy and relied heavily on the doctrine of stare decisis. The argument for equal protection as a basis for this right was not well-developed, and the dissenters did not engage on the merits of the issue. The discussion also touched upon the criticism of liberal legal thinking as being more focused on defending institutions and procedures than on a substantive vision of the constitution. The change in constitutional culture towards technocracy was noted as a concern.
Different visions of Constitution interpretation in American politics: The right's originalism provides a clear interpretive methodology, while the left lacks one, leading to uncertainty and a need for a unifying principle to guide constitutional decisions.
Both the right and the left in American politics have different animating visions of the Constitution and how it should be interpreted. While the right has a clear vision guided by originalism, the left has been left paralyzed without a binding interpretive methodology, leading to a lack of confidence in their constitutional decisions and a need for an overarching animating principle. The fear is that without such principles, constitutional interpretation could lead to unpredictable results. The loss of a widely embraced vision on the left has left them holding on to past outcomes but without a clear replacement.
Interpreting the Constitution: Text, History, Precedent, and Vision: In ambiguous constitutional cases, a clear vision or guiding principle is needed to make decisions. The left lacks a coherent vision, while the right has one aligned with their preferences. Originalism can provide context but is often misused for desired outcomes, leading to 'fake history'.
While interpreting the constitution, it's important to consider the text, history, precedent, and policy implications. However, in difficult cases, these sources may not provide a clear answer. In such situations, a guiding principle or vision is needed to make decisions. The left seems to lack a coherent vision, while the right has one that aligns with their political preferences. Originalism, as an interpretive theory, can provide some understanding of the original context of the constitution but is often misused to support desired outcomes rather than adhering to the original meaning. This cherry-picking of outcomes based on current political preferences can be considered as "fake history." In essence, to faithfully interpret the constitution, we must engage with its original context while being willing to adapt to changing circumstances.
The Constitution is subject to change and interpretation based on current context: Leaders should inspire and engage in conversation with the public for constitutional change, but the legal profession's increasing professionalization makes it challenging for alternative interpretations to influence constitutional law
The Constitution, like a boat, is subject to change as society evolves. Living constitutionalism, or interpreting the Constitution based on current context, is an unavoidable reality. FDR's argument for judging constitutional validity by what resonates with the people and the kind of society we want to have, aligns with the concept of popular constitutionalism. Leaders should provide a vision, inspire, and engage in an ongoing conversation with the public. However, the legal profession's increasing liberalization and professionalization, leading to a "cult of the court," has made it challenging for alternative interpretations and politics to influence constitutional interpretation.
Rebuilding a politics of constitutionalism: Shift from relying on courts to define the constitution, build an anti-oligarchic republic, and rebuild political institutions to make the constitution a document for the people
The constitutional vision in America should come from politics and the community, not just from the courts. This is a shift from the past 50 years where the left has relied on the courts to define the constitution. However, the challenge today is that our political institutions, such as parties and leadership, have been degraded, making it difficult for cohesive and normatively attractive political visions to emerge. An interesting alternative theory is the "anti-oligarchy constitution" proposed by Joey Fishkin and Willie Forbath, which emphasizes creating an anti-oligarchic republic and breaking down concentrations of power to provide opportunities for all. Ultimately, we need to rebuild a politics of constitutionalism where the constitution is seen as a document that belongs to the people, not just imposed on them.
A tension between democratic and republicanist visions during the founding: The founding of the American constitution was a complex process shaped by various perspectives, with Jefferson and Madison representing a future-looking, anti-oligarchic vision.
The founding of the American constitution was a complex process shaped by various perspectives, including those with a more democratic and republicanist vision. While the constitution was written by men who were primarily white and held power, it set in motion the opportunity for expanding the polity and creating a more perfect union. However, in recent decades, the progressive side of this struggle has seemed to disappear, leading some to critique the founding as flawed. It's essential to recognize that the founding was not one thing but a tension between different ideologies. From an anti-oligarchic perspective, Jefferson and Madison, rather than Hamilton, represent the future-looking vision for America. It's important to separate people's personal foibles from their political ideals and acknowledge that the vision of a concentrated power in the hands of the economic elite is fundamentally anti-democratic. American constitutionalism is a continuous struggle towards creating a more perfect union, and it's our responsibility to seize the opportunity to implement the forward-looking vision.
An anti-oligarchic constitution prioritizes affirmative rights and equal opportunities: An anti-oligarchic constitution focuses on affirmative rights, equal opportunities, and preventing economic power concentrations through different labor and antitrust laws, and a shift towards predistribution to create a fairer wealth distribution. The court plays a role, not the sole decision-maker.
An anti-oligarchic constitution, inspired by the Jeffersonian vision, would prioritize affirmative rights and the government's responsibility to ensure equal opportunities in areas like healthcare, education, and preventing economic power concentrations. This would involve different labor and antitrust laws, and a shift towards "predistribution" to create a fairer distribution of wealth. However, it's important to avoid judicial supremacy and instead embrace a political struggle where interpretations created through legislation and court decisions coexist. The court should be seen as a player, not the sole decision-maker. Examples like Brown v. Board of Education, the death penalty, and same-sex marriage illustrate the court's role in pushing or being pulled by the public.
Exploring ways to change the Supreme Court: The Biden Supreme Court Commission proposed ideas like adding a justice every two years to keep the court fresh and reduce the stakes of each appointment
The Supreme Court and its role in our constitutional system should be a topic of ongoing political debate and reform. The notion of judicial supremacy, which holds that the court's decisions are final and not subject to political challenge, has been a topic of discussion. The Biden Supreme Court Commission explored ways to change the court, including relegitimating pushback and reforming the nomination process. One proposed idea was adding a justice every two years, ensuring a constantly fresher nine-member court and reducing the stakes of each appointment. Although this idea has not gained traction yet, it may become a viable solution in the future as the court remains a potential flashpoint for political crises.
Expanding the Supreme Court for a more balanced process: Expanding the Supreme Court could lead to more balanced nominations, allowing for older, experienced individuals and reducing partisan influence. However, concerns exist about weakening the court's ability to protect rights from majorities.
Expanding the Supreme Court to include more justices could lead to a more balanced and moderated nominations process. This is because it allows for the appointment of older, more experienced individuals and reduces the influence of partisan politics on the court. Additionally, requiring a supermajority for appointments may not be necessary, as the court is often self-conscious of the need to build stronger majorities for controversial decisions. However, there are concerns that making the court more exposed to public opinion could weaken its ability to protect rights from majorities, as seen in historical cases like Brown v. Board of Education and Obergefell v. Hodges. Ultimately, the ideal solution would likely involve a careful balance between ensuring the court's independence and responsiveness to the will of the people.
The Supreme Court's role in shaping societal norms is an ongoing process: The Supreme Court's power to shape societal norms and rights is not a one-time event, but an ongoing process that requires persuasion and engagement from the public and political actors.
The Supreme Court's role in shaping societal norms and rights is an ongoing process, not a one-time event. The Brown v. Board of Education decision, while significant, was part of a larger movement towards civil rights and racial justice that required the court to persuade the public and political actors. However, the current conservative-leaning Supreme Court, with its seemingly unchecked power, raises concerns about its limits and the potential for a political backlash. The historical context shows that even the most powerful courts face pushback when they stray too far from the public's vision. The current political climate, marked by a flawed democratic process and an information age that amplifies extremes, makes it unclear whether the public can effectively engage in a shared debate and bring about change. Ultimately, the court's role in shaping American society requires a delicate balance between upholding constitutional rights and adapting to societal norms.
The importance of political engagement in a functioning democracy: Understand that courts are important but not a substitute for political action in a democracy. Engage in democratic politics to create the government we desire.
American democracy relies heavily on political engagement and organizing, rather than just relying on the court system. The recent Dobbs decision serves as a reminder that the court is an important piece of democracy, but it is not a substitute for political action. Liberals have been criticized for their lackluster response, but it's essential to recognize that there is no alternative to politics in a functioning democracy. The founders understood this, and after realizing their mistakes, they began the process of recreating the constitution. Today, we must follow their lead and engage in democratic politics to create the government we desire. Three book recommendations from the conversation include "The Anti-Oligarchy Constitution" by Nancy L. Rosenblum and Robert A. Post, "The Second Creation" by Jonathan G. Jansen, and "When We Cease to Understand the World" by Benjamin Labatute. "The Anti-Oligarchy Constitution" offers insights into how to address the current political climate, while "The Second Creation" illustrates the importance of recreating the constitution in the aftermath of its initial drafting. Lastly, "When We Cease to Understand the World" is a fascinating read about the history of 20th-century math and science geniuses, demonstrating the power of creativity and hubris in scientific discovery.
