Arnold Kling  

James W. Ceaser on the Constitution

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He writes,


Legalistic constitutionalism refers to formulas and rules. It makes one think immediately of lawyers and judges spinning elaborate constitutional doctrines and devising multi-pronged "tests." Like ancient Egyptian priests, these legal experts speak an occult jargon that few citizens can grasp. Political constitutionalism, by contrast, is premised on the view that much, even most, of what determines whether the Constitution is being respected stems from the accumulation of ordinary policies on issues ranging from education to energy and to the environment. The real work of defending the Constitution accordingly falls to statesmen and parties acting in the political realm and by political means; they must embrace positive programs to protect the Constitution that go well beyond anything that courts could determine.

...Commentators on both sides [of the Constitutional challenge to Obamacare] have begun to speak of a "landmark case" that will define federal power. Here we see all the limitations of legalistic constitutionalism. Does it not seem odd that the "great" constitutional question focuses on an avoidable point, while the main substantive matter--whether the federal government could tax individuals in this way, or, even more importantly, whether the federal government can take full control of this area of economic and social activity--need never have raised a serious constitutional issue? Doesn't this way of looking at matters trivialize the Constitution, as if it were concerned more with procedural rules than with broad ends?

The point here is not to criticize questioning the legal basis of the individual mandate, which surely is an important matter. It is instead to remind Americans that this legal aspect of the policy is just one dimension of constitutionalism. If the legal question alone is thought to determine constitutionality (which is the dominant way of thinking), and if the Court holds the law to be constitutional, no space is left afterwards for questioning the constitutionality on the basis of another, larger criterion. With so many people now having bought into a legalistic understanding of constitutionalism as the criterion of constitutionality, conservatism would have suffered a devastating blow: everything liberal would be constitutional.

Read the whole thing. For extra credit, consider the analogy of Ceaser's distinction between legalistic Constitutionalism and political constitutionalism with my distinction between bright-line regulation and principles-based regulation.


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COMMENTS (26 to date)
david writes:

Legalistic proceduralism is what saved the American republic over two and half centuries, when so many other ambitious postcolonial states foundered. The problem with high ideology is that it is non-negotiable: if one major political camp disagrees with another and there is no mutual deference to procedure, the only way to negotiate is to take up arms and start redrawing national borders. Under procedural horse-trading, at least both sides can hope to make headway.

The implicit assumption of the "political constitutionalism" view is that all the relevant core ideological foundations can be (1) explicitly hammered out and agreed upon by existing powers at some point in time and furthermore (2) no future disagreements on those core principles will ever arise due to unexpected changes in external circumstances. If the Founders attempted that, they would have had to resolve the slavery question in 1776 - then there would not have been a revolution at all.

And, yes, those apply to PBR too, although of course the risk of a disagreement on industrial regulatory principles leading to disintegration of the nation-state is improbable. There would just be a disintegration of the organized interest groups and institutions underpinning enforcement and interpretation of the principles, and then you're back to square one in a time of crisis.

High principle is fine for, say, a United Nations putting forth its views on human rights. Nobody expects the international order to be independently self-sustaining beyond what major parties at any moment want. I think it is limited elsewhere, though.

Greg G writes:

Exactly right david.

Sonic Charmer writes:

I'm still stuck on his premises that (1) the only 'problem' that faces us, or to which we would look to the constitution for help, is a profligate-spending government, and (2) legalistic constitutionalism has to mean arcane language employed by priestlike lawyers.

(1) doesn't seem true. And (2) seems like an argument for implementing legalistic constitutionalism *better* (and in a less elitist way), not for abandoning it.

Chris Koresko writes:

If I'm reading Caeser right, he's implying that the only viable ways of looking at the Constitution are as either a set of arcane rules or as the "living" document of the Progressives.

But isn't there a third, more sensible approach? The Constitution, after all, is well documented in the Federalist Papers: almost every aspect of its design and intent are described there, along with some of the reasoning which led to the particular details of its implementation, from the basic three-branch architecture to the eligibility rules for elected officials. The design goal was simply stable good government, where "good government" was defined as a mechanism to protect the liberty of the citizens.

In this approach, we can look at questions of Constitutionality of a law in two complementary ways: consistency with the hard rules laid down by the Founders, as amended, and consistency with the principles on which the Constitution was based. The latter amounts to a kind of PBR, except that it's applied to regulating the Government rather than private industry.

This approach offers a kind of robustness against mistakes in the interpretation of the Constitution, as well as 'bugs' in the original design. For example, it could be (and has been, by certain legal scholars) argued that the 'general welfare' clause empowers Congress to do anything it wants to. But reference to the Federalist makes it obvious that that is wrong.

david writes:

@Chris Koresko

Then you get legalistic interpretation of the Federalist Papers. The Papers were intended as promotional pamphlets, not explorations of troublesome edge cases. What exactly did Madison have in mind when he wrote that "nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care"? Shall we trawl through his personal effects for interpretative aid too?

Wallace Forman writes:

"If the legal question alone is thought to determine constitutionality (which is the dominant way of thinking), and if the Court holds the law to be constitutional, no space is left afterwards for questioning the constitutionality on the basis of another, larger criterion."

But you could still argue about whether the Court got the legal question wrong...

PrometheeFeu writes:

I disagree. I see bright-line rules as being essential. With principled-based regulations and political constitutionalism, the uncertainty is too great. Bright-line rules allow me to go about my day clearly knowing what will result in punishment from the state. Similarly, it allows me to clearly know what rules made by the legislature will or won't stand. Of course, in practice there are many grey areas. But those are terribly problematic. Consider for instance California's gun-control laws. It is not perfectly clear whether SCOTUS would or would not strike them down. As a result, no-one is willing to challenge it and we are potentially subject to unconstitutional rules for a long time. Compare that with a hypothetical ban on flag burning. Clear tests apply and so those who are so-inclined could ignore the law secure in the knowledge that the high court would vindicate them.

Chris Koresko writes:

david: Then you get legalistic interpretation of the Federalist Papers.

Presumably we'll get legalistic interpretation of whatever is thought to be the foundational law. Why not the Federalist rather than far larger, more convoluted, and less self-consistent case law we've accumulated over the intervening two centuries?


The Papers were intended as promotional pamphlets, not explorations of troublesome edge cases.

Certainly there will be edge cases which aren't well constrained either by the text of the Constitution itself or by the Federalist. In those cases there's little choice but to rely on the spirit of the law, or, if even that is not clear, to create new law.


What exactly did Madison have in mind when he wrote that "nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care"?

Presumably it is mostly a reference to his previous sentence arguing that the power of establishing post roads was appropriate, and more generally to the other powers (making international treaties, regulating interstate and foreign commerce, coining and regulating money, etc) he listed before that.

Enjoyed your first post, by the way.

david writes:

@Chris Koresko

Because the text exercises any democratic legitimacy that it has at all because the text passed through a public political process of ratification, and the entire political philosophy of the authors did not.

On what basis should one believe that a legal literature on the FP would be less convoluted? Disputing an interpretation is trivial, and now there's even more to dispute.

Here, have one for a sample: John A. Socialist believes that when Madison wrote "nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care", he meant that everything that tends to facilitate interstate commerce deserves state administration to ensure its delivery - indeed, that federal, state, and local are obliged to take them into the public care. Since there's a full stop between the post-roads sentence and the next, clearly Madison is elaborating a general principle of which post-roads are merely a 18th century instance, and not merely justifying the limited set of instances absent of general principle.

Behold, now you have the equivalent of constitutional theorists obsessing over the Takings clause comma, only now it's over a text that nobody even voted for!

Chris Koresko writes:

David: Because the text [of the Constitution] exercises any democratic legitimacy that it has at all because the text passed through a public political process of ratification, and the entire political philosophy of the authors did not.

The Federalist was the explanation of the Constitution and its principles which was presented to the public by its authors in the run-up to the ratification. If the Constitution was ratified based on the public understanding of it, then surely the content of the source of that understanding carries some weight.

Suppose, for example, that the text of the Constitution contained an “escape clause” giving Congress effectively unlimited powers, rather than the carefully circumscribed and enumerated powers described in the Federalist and sold to the public. Would not that deception undermine the legitimacy of the Constitution? If we accept that the Constitution is legitimate, then does that not imply that the public description of it before ratification has also, in some (admittedly vague) sense, also been ratified?

On what basis should one believe that a legal literature on the FP would be less convoluted? Disputing an interpretation is trivial, and now there's even more to dispute.

I'm not suggesting that the Federalist has or should have the force of law, but only that it (rather than previous case law) is the natural source to turn to first in questions of the interpretation of the Constitution. Too much reliance on case law is dangerous because it invites building one error on top of another. And it inevitably creates the arcane edifice and priesthood that Ceaser rightly criticizes. By contrast, the Federalist, like the Constitution itself, is a static document which is reasonably accessible to the layman.

Here, have one for a sample: John A. Socialist believes that when Madison ... Behold, now you have the equivalent of constitutional theorists obsessing over the Takings clause comma, only now it's over a text that nobody even voted for!

You have a point here. But note that too broad an interpretation of this sentence, or some other part of the Federalist, would likely run afoul of the Constitution itself.

david writes:

Then (1) it bears no more authority than any other text used for evidence for an originalist interpretation of intent, like letters and personal effects, including effects asserting a living principles-based constitution (worse and worse!), and (2) the FP was written as the ratification process proceeded, so in fact Delaware ratified before even a majority of the papers were published.

And understanding of the quid pro quo entailed in giving up the Articles of Confederation shifted between the Delaware and Massachusetts, most prominently about the Bill of Rights, which the FP criticized. So any implied public understanding of the Constitution in December 1787 and June 1788 were in fact different understandings.

Invoking the FP extensively - which is, in fact, already what happens; SCOTUS merely also relies on additional sources and there would not be judicial review at all without the FP - would generate a similar pile of case law. The reason you have case law is because you live in a legal system dominated by precedent, not because your constitution is insufficiently explicit. Common-law countries with thousand-page constitutions - which you effectively advocating - also have piles of case law.

And you think that narrow interpretations override broad ones. Why wouldn't it be the other way around, or why wouldn't broad interpretations go together? And here John A. Socialist continues: clearly, the public understanding was that the Constitution was intended to oblige contribution to the provision of such interstate resources!

Chris Koresko writes:

david: The reason you have case law is because you live in a legal system dominated by precedent...

That's the point I'm trying (not very successfully, it seems) to make: Shouldn't the system be dominated by the text itself, and less reliant on precedent?

Greg G writes:

Can we please drop this fantasy that the founders all agreed on the meaning of the language in the Constitution?

If anything, they fought about that more bitterly than we do today.

Precedent matters, not because it is always right, but because it is indispensable to allowing people to anticipate what the rules are and settle their disputes peacefully.

david writes:

@Chris Koresko

You are asking for a move from common law to Continental-style civil law. I think some casual inspection would show that it is not, in practice, less convoluted.

PrometheeFeu writes:

@Chris Koresko

Too much reliance on case law is dangerous because it invites building one error on top of another. And it inevitably creates the arcane edifice and priesthood that Ceaser rightly criticizes. By contrast, the Federalist, like the Constitution itself, is a static document which is reasonably accessible to the layman.

But the FP themselves are subject to interpretation. That interpretation would have to remain consistent across cases for the law to be somewhat predictable. This would effectively mean returning to some sort of precedent system where lawyers would say: "Well in this case, you interpreted the FP to mean this in your interpretation of the Constitution."

Chris Koresko writes:

Greg G: Precedent matters, not because it is always right, but because it is indispensable to allowing people to anticipate what the rules are and settle their disputes peacefully.

PrometheeFeu: But the FP themselves are subject to interpretation. That interpretation would have to remain consistent across cases for the law to be somewhat predictable

david: You are asking for a move from common law to Continental-style civil law.

I wouldn't go that far – only far enough to anchor the interpretation more strongly to the Federalist in the hope of making it more understandable to the layman and less vulnerable to long-term drift.

I don't think anybody really questions the value of stability in law, and the reliance on precedence is justified as a means to achieve that. But it's not obvious (to me, at least) that this is working well in practice.

Consider a “toy model” in which the original understanding of the Constitution is represented by a point on a plane. Put it at the origin. The first case is represented by a random vector which produces a little offset from the origin, and each subsequent case is another vector that starts from the previous point. It's a random-walk, so the expected distance between the interpretation and the origin increases as the square root of the number of cases. Let's say that the vectors tend to be relatively short, so that on short timescales the interpretation is relatively predictable. This is the precedence-based model.

The alternative model is one in which the random vectors are longer on average, but they all start from the origin. This is the Federalist-anchored model. Over short timescales the assumed larger jumps (longer vectors) make it less predictable than the precedence model. But over long timescales this model is more predictable since it's not subject to secular drift.

Which timescales are more important for the maintenance of good government?

Of course these models oversimplify the situation; the precedence system is not really so decoupled from the origin – presumably the justices do read the Constitution now and then, not previous opinions. And the anchored model isn't perfectly anchored (since the interpretation of the anchor itself can change, as you have noted). My hope is that by being a lot wordier, with its principles and objectives spelled out explicitly, and with the text accessible to a much larger cross-section of the public, the Federalist will be less prone to misinterpretation than the rather terse and sometimes deliberately ambiguous text of the Constitution itself.

NB: It also seems to me that our precedence-based system is not exactly a paragon of predictability, even on short timescales. As we argue this, the Court is on the verge of announcing the fate of ObamaCare, which many observers believe will have a huge impact on the nature of our government in the future. This time next year, the Federal government may have the power to compel individuals to do a lot of new things never imagined by the Founders. Or not.

david writes:

Three points:

States where the plain text of constitutions play a binding role in regular policy disputes rapidly evolve a political culture of regular constitutional amendment. If they cannot do this and disputes are drawn along geographical lines, they balkanize. Neither are especially appealing outcomes.

The problem with the notion of indefinitely binding a human government is that the judiciary does not have infinite political capital to do so; it can pressure the other branches but it cannot directly override a political will that sees itself as incontestably legitimate without losing its own power altogether. To paraphrase your model, consider the state itself as a random walk away from its origin - if the distance between possible interpretation and political desire becomes too large, the country simply gives up judicial independence altogether. And in your country - where low-population states have a disproportionate effect on the amendment process yet modern political legitimacy comes from national majorities, not a majority among the states - this is a particular vulnerability. To use an economists' parlance, you need to think of a constitution as an endogenous entity, not an exogenous constraint. There are plenty of countries where constitutions exercise no meaningful legitimacy.

And last, anchoring an interpretation saves you no complexity in accumulated law. You just get a lot of bright-lined tests for consistency with some claimed original interpretation.

Chris Koresko writes:

david: States where the plain text of constitutions play a binding role in regular policy disputes rapidly evolve a political culture of regular constitutional amendment.

Again, I am not advocating that every policy dispute be decided by study of the Constitution. What is supposed to happen is that those involved in making policy are aware of the general Constitutional principles and avoid violating them in the course of routine policy arguments the same way a private citizen avoids resorting to bloodshed to settle a debt. The citizen doesn't need to be able to cite the section of the legal code he'd be violating, or even whether it's Federal, state, or city code; it's enough to have a general understanding of the intent. Only for relatively unusual situations is it necessary to actually pore over every dot and tilde.

The problem with the notion of indefinitely binding a human government is that the judiciary does not have infinite political capital to do so; it can pressure the other branches but it cannot directly override a political will that sees itself as incontestably legitimate without losing its own power altogether. To paraphrase your model, consider the state itself as a random walk away from its origin - if the distance between possible interpretation and political desire becomes too large, the country simply gives up judicial independence altogether.

The Constitution is designed to prevent that by separating powers between the three branches and giving justices tenure to make them relatively immune from political pressure.

Nevertheless, what you describe does happen in the U.S. But, critically, it happens episodically, particularly in times of crisis, when ambitious politicians exploit the atmosphere of fear and confusion to advance their agendas in defiance of the law. Precedence plays a destructive role here, in that when the Court, under political pressure, accepts novel legal doctrines, those take on some of the character of amendments to the Constitution. In an anchored system those episodes might act only as a sort of safety valve that protects the political capital of the judiciary from that kind of assault and then allows it to recover quickly when the crisis is over.

To use an economists' parlance, you need to think of a constitution as an endogenous entity, not an exogenous constraint.

But the Constitution in a real sense is exogenous: it was written before anybody now alive was born, and whom only a tiny minority of modern Americans can claim as ancestors by blood. It's not very complicated, or even very subtle, but many of its parts are designed to be mutually supporting. I think we are very fortunate to have it: it's much better designed than anything that we modern Americans, or likely anyone else, would be able to write and put into effective operation.

There are plenty of countries where constitutions exercise no meaningful legitimacy.

America is exceptional, yes.

And last, anchoring an interpretation saves you no complexity in accumulated law. You just get a lot of bright-lined tests for consistency with some claimed original interpretation.

You may be right. But I would argue that it's never been tried in American conditions.

Joe Cushing writes:

After reading half of these comments, I've come to the conclusion that we live in a democracy and not a republic. There is no constitution. The only thing that matters is whether or not the people in power want to make and keep a law and whether they will get thrown out by the people or re-elected. What it says in the constitution doesn't matter. Every word in it is up for being re-defined to mean something else. Regulation for example, means to make regular. Now it means to make rules.

Mark Bahner writes:
If the Founders attempted that, they would have had to resolve the slavery question in 1776 - then there would not have been a revolution at all.

The Founders had a solution for that...called "amendments."

The problem today is that liberals know that Obamacare would never be passed as an amendment to the Constitution. Since they don't have the votes to do it legally--by amending the Constitution, as the Founders (except for Hamilton) intended--they want the Supreme Court to do their dirty work.

MichaelM writes:

The Federalist Papers are very, extremely far from the only good interpretive source of originalist thinking. In fact, they're pretty bad: They were never circulated widely outside of the New York area, they were written by a tiny minority of the original delegates, and you can find contradictions in later writings of each of the people involved (except Hamilton, who was surprisingly consistent in being an unprincipled bastard).

The better sources are records of the Philadelphia Convention itself (those few we have) and the state ratifying conventions (as a kind of central canon -- state ratifying conventions superceding the Philadelphia Convention where there is conflict), the writings of delegates to any of these conventions, and then a general understanding of political theory and the state of legal education at the time.

Good originalist interpretations of Constitutional issues are horrifically hard to come by.

david writes:

@Mark Bahner - no, they didn't. They had no solution at all and tried to ignore the issue, which is why the slavery question stewed until your country broke out in civil war.

@Chris Koresko - tenure is a weak protection, as the court-packing plan demonstrated quite conclusively.

If SCOTUS struck down Social Security and Medicare today, do you really think Congress would be unable to summon the political capital to assert that SCOTUS was behaving unconstitutionally and simply re-entrench SS and Medicare by legislative fiat?

Chris Koresko writes:

David (to Mark Bahner): - no, they didn't. They had no solution at all and tried to ignore the issue, which is why the slavery question stewed until your country broke out in civil war.

It was a pretty tough problem to solve. The Founders did have the bones of a solution, which was analogous to Cold-War “containment”: Forbidding slavery where they could (i.e., the Territories, of which there was only one at the time of the founding), taxing and then forbidding importation of new slaves, and waiting for free part of the country to grow much larger than the slave part. Over time the slave part would be increasingly isolated and out-voted. How long would it have taken for the number of free States to reach three times the number of slave States, i.e., the threshold needed to pass an amendment over their objection?

This is pretty much what the Republicans had in mind before the outbreak of the Civil War, if I understand correctly. (I'm working from vague memory here, so please correct me if I have it wrong).

David (to Chris Koresko): tenure is a weak protection, as the court-packing plan demonstrated quite conclusively.

I agree that it's not strong enough. In fact, I'd call the lack of a clause in the Constitution defining the number of justices to be a 'bug', and it's kind of a strange one given how much care was put into choosing the number of Senators and Representatives.

A simple amendment would fix it, though.

David: If SCOTUS struck down Social Security and Medicare today, do you really think Congress would be unable to summon the political capital to assert that SCOTUS was behaving unconstitutionally and simply re-entrench SS and Medicare by legislative fiat?

I'm not sure. But it would certainly bring the long-simmering struggle between conservatives and progressives to a head.

Mark Bahner writes:
@Mark Bahner - no, they didn't. They had no solution at all and tried to ignore the issue, which is why the slavery question stewed until your country broke out in civil war.

The fact that there was a Civil War doesn't mean that the Constitution's amendment process could not have addressed slavery.

Slavery was originally protected by the Constitution, because the Constitution contained the clause:

"No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.[7]"

The Fugitive Slave Act of 1793 made this return a matter mainly for state courts. The Fugitive Slave Act of 1850 made it more a federal matter (because the Northern states were refusing to return escaped slaves).

When the South seceded, Lincoln could (and should) have worked much harder to arrange a solution wherein the Constitution would be amended so that slaveowners would be paid by the federal government for their slaves, and slavery would concurrently be abolished. The payment could have been for full market value (or more) for owners of only a few slaves, and for less than market value for owners of large numbers of slaves.

Lincoln should not have invaded the South. The fact that he waged war on the South doesn't mean the Constitution failed. It means that Lincoln failed.

Mark Bahner writes:
After reading half of these comments, I've come to the conclusion that we live in a democracy and not a republic. There is no constitution.

Yes, I am constantly amazed that so many intelligent people think the U.S. is being run according to the Constitution, when I think that over 90% of what the federal government does would be viewed as unconstitutional by the overwhelming majority of the Founding Fathers.

Take Medicaid as just one example. When Congressman Madison (aka, "Father of the Constitution" and future President Madison) said, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."

How could that not apply to Medicaid?

But there are literally hundreds of other examples of federal programs which are clearly not within the scope of the federal government as envisioned by the Founders: Medicare, Social Security, the Department of Education, etc.

The first step towards solving a problem is generally to recognize its existence. Since most people in the U.S. think the federal government follows the Constitution, we haven't even taken the first step towards solving the problem that the federal government doesn't follow the Constitution.

Mark Bahner writes:
If SCOTUS struck down Social Security and Medicare today, do you really think Congress would be unable to summon the political capital to assert that SCOTUS was behaving unconstitutionally and simply re-entrench SS and Medicare by legislative fiat?

I don't know what would happen in those hypotheticals. For Congress to "re-entrench" something by "legislative fiat" breaks accepted precedent that goes all the way back to Marbury v. Madison...that the Supreme Court has the authority to rule on the constitutionality of laws.

However, to say that either hypothetical is unlikely to occur is a understatement. None of the liberal judges would vote for it. And none of the conservative judges either...because it would be ruling that major programs that are very old are unconstitutional.

So the fact that SS and Medicare are unconstitutional is really of no consideration. :-/

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