The State of Progressive Constitutional Theory: The Paradox of Constitutional Democracy and the Project of Political Justification

Mark Tushnet

Professor Tushnet, who graduated from Harvard College and Yale Law School and served as a law clerk to Justice Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies examining (skeptically) the practice of judicial review in the United States and around the world. He also writes in the area of legal and particularly constitutional history, with works on the development of civil rights law in the United States and (currently) a long-term project on the history of the Supreme Court in the 1930s. This fall he is organizing a conference on American constitutional development and another that features a conversation among several current and former judges on the world’s constitutional courts.

Nimer Sultany’s brilliant re-structuring of the debates among U.S. constitutional scholars about constitutional democracy sets a difficult standard to match.[1] As an object of his inquiry, I offer some comments on some aspects of what I take to be his project, rather than on his treatment of my own work. One reason for taking this approach is that intellectual products, once launched into the world, take on the meanings that others give them, rather than the meanings their authors had in presenting them – if indeed the idea of authorial intent is coherent in this setting. My comments deal with Sultany’s treatment of the general class of “dissolution” approaches and their relation to the “endorsement” ones, to bring out an aspect of the loopification Sultany describes that his analysis seems to overlook. This is not a criticism of his argument, but rather an indication of how generative it can be.

Sultany sometimes equivocates about what the dissolution approaches are trying to dissolve. Sometimes it is the tension between democracy and judicial review, sometimes that between democracy and constitutionalism. Here I focus on the latter: According to the usual account, constitutionalism is inconsistent with democracy because it prevents current majorities from implementing the desires or preferences they happen to have at the moment (their “occurrent” preferences, as I sometimes put it), through the ordinary processes of law-making.[2] Dissolutionists in this camp envision what Sultany properly calls unconstrained democratic politics. And, though dissolutionists sometimes do not recognize the fact, here “constraint” means not procedural rules and the like, but any constraints whatever. (It must mean that for reasons that Sultany brings out through his discussion of the denialist position that unity can be achieved because we can have a sensible discussion only after we determine what we are talking about when we refer to democracy: “one person one vote” or a Millian willingness to give extra votes for the specially qualified, for example, or, to use an example to which I return, the definition of the territory within which democracy is to reign.)

But, unconstrained democratic politics seems to be what popular constitutionalists seek, though he places them (me?) in the camp of the reconciliationists. Consider Larry Kramer’s emphasis on the importance of the people out of doors to popular constitutionalism as it was practiced in the Republic’s early years. Today “the people out of doors” can be described as the people rioting, which did not have as strongly pejorative connotations in the early Republic as it does today. And, of course, riots are unstructured by procedure or anything other than the impulses that lead the people out of doors. Popular constitutionalism of the sort I am describing does not contend that unconstrained democratic politics must take a completely unstructured form, only that it may do so. So, for example, Kramer places more weight on popular constitutionalism as channeled through organized political parties than on the people out of doors, and Robert Post and Reva Siegel do the same with the complex internal politics of social movements. Kramer is explicit about the importance of the people out of doors, and I think an acknowledgement of the modern parallels to the people out of doors is at least implicit in, and may be explicit in, Post and Siegel’s work.

What would truly unconstrained democratic politics look like? For one thing, it would not have predetermined territorial boundaries. Demonstrations elsewhere can be part of unconstrained democratic politics in the United States, for example, and not merely because people located within the territory of the United States respond to those demonstrations. On the dissolutionist view I am explicating here, demonstrators in Great Britain might be participating in the unconstrained democratic politics of the United States (depending on their own political orientation). On this point, I believe, Richard Parker departs from the dissolutionist camp, with his emphasis on the importance of (American) patriotism for U.S. constitutionalism, rather than with his discussion of honor, as Sultany suggests. The issue of patriotism’s relation to the idea of unconstrained democratic politics is too complex to explore here, and I merely note my view that American patriotism is not inconsistent with such a politics, even putting aside the usual concern that patriotism is motivationally necessary for vibrant civic engagement.

More important, unconstrained democratic politics would be agonistic, that is, characterized by recurrent struggles over fundamental choices. These struggles might reach provisional resolutions, but conflict could break out again at any moment. And, conflicts proliferate, with none taking central ground except, again, provisionally. This description of unconstrained democratic politics seems to me at least a close cousin to what Sultany describes as the “endorsemernt” discourse of disunity. Consistent with Sultany’s equivocation between constitutionalism and judicial review as that with which democracy is in tension, that discourse endorses the courts as a site of contestation. Endorsers need not treat courts as the only such site, though. And, if they see the possibility of contestation everywhere, they become advocates of unconstrained democratic discourse – that is, they become popular constitutionalists engaging in a discourse of unity.

One aspect of agonistic politics – both in unconstrained democratic politics and in the judicial role in ensuring that constitutional controversies remain unsettled – probably deserves more attention than it has received. Agonistic politics may be gendered male, at least in contemporary U.S. culture. And, more generally, I suspect that inserting a gender perspective into Sultany’s analysis would push theorizing into even newer domains.

If I am right, there are more variants of loopification to be explored. Sultany’s framework thus introduces novel and productive ways of thinking about the themes of contemporary U.S. constitutional theorizing.

I think it worth noting that the discussions among U.S. scholars are somewhat parochial in constitutional theory generally. For reasons I hope to explore in another essay, in many other nations with constitutional review, the practice is taken for granted and constitutional theory is about judicial methodology independent of the justifications for constitutional review, or straight-forwardly about substantive constitutional justice.

The latter qualification, referring to “ordinary processes,” explains why democracy is not inconsistent with legality. By definition those processes are different from constitutional amendment processes. It may be worth noting that a comparative perspective suggests that U.S. scholars may have focused on the tension between democracy and constitutionalism because the U.S. amendment processes are so difficult.

Jack Jackson

Jack Jackson is a Ph.D. candidate in political theory at the University of California, Berkeley. He is the co-editor, with Martha Fineman and Adam Romero, of Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations (Ashgate Press, 2008). He received his J.D. from Cornell.

Nimer Sultany invites us to think about constitutionalism and democracy as well as to think about how we think about “constitutionalism”, “democracy”, and “constitutional democracy.” Since Sultany’s emphasis rests so heavily on the latter, on thinking about how we think about these concepts, one is pulled into the direction of the particular; or, in his terms, into “the field.”¹ Somewhat curiously, the logical move to the local is eschewed and Sultany insists that we think more globally, out of the field and above it. I say curiously because it seems that the conclusion that Sultany reaches suggests the impossibility of any such location: mapping exercises can no more escape contestation than the allegedly essentially contested concepts he works with. In other words, his mapping of a set of claims is itself a claim that we too might pause to think about.

The field of “contemporary progressive liberal constitutional theory” circles around the paradoxical relationship between and within the concept(s) of democratic constitutionalism. As Sultany writes, this paradox arises in “any case in which the [Supreme] Court reviews the validity of laws enacted by popularly elected assemblies” which “crystallizes the basic problem with the deployment of rights by a constitutional court to domesticate popular will.”² This formulation, long familiar, imagines a fairly tight correspondence between assembly and popular will. Yet, the organization of assembly and the division of power in the American Constitutional scheme deliberately sought to break that relationship. The text of the U.S. Constitution opens with a grand Rousseauian flourish and then works deliberately to abolish the consequences of such poetic flights of fancy.

To begin at the beginning, I take it as constitutionally foundational that when the State of Virginia ratified the Constitution in 1788 approximately 40% of its inhabitants were constituted as racialized property and that suffrage among free whites was limited to men. Thus, the cataclysmic gap between democracy and constitutionalism in the American experience bursts open at the very moment when the free white men of the Eastern seaboard constituted themselves as body politic; that some men on the Court strike down what some men in the Congress pass is trivial by comparison. If that specific and limited counter-majoritarian “paradox” twists the mind into pretzels and exhausts the horizon of political thinking, then that itself is a symptom of something amiss however (and whenever) and regardless of how that paradox is “resolved.”

But even within that comparatively limited world, the Constitutional imperative against “popular will” and in the name of “right” precedes and exceeds judicial review. Judicial review is but a component of a constitutional structure designed to break the will of the people on whose foundation it purportedly rests. Abstractly it is a paradox; materially it is a political victory. And if one is confined to “interpreting” that particular political-textual victory of a particular social class, and if that confinement is understood as the outer limit of politics, then perhaps that explains something of the enduring inner hollowness of democracy in our time.

It is worth recalling the originalist point: arguments on behalf of the Constitution stressed that the majority must be prevented from exercising the powers of government to realize its “interest,” interest derived from and defined by the relationship between class and property (those who owned it or didn’t, not those who were it). This majority might be tempted to engage in “wicked projects” such as “an abolition of debts” or an “equal division of property.”³ The “remedy” for this potential “disease” of a majority ruling in their own interests,⁴ in exercising real power over the conditions of their daily and collective lives, was the surrender of power for an undisturbed property right. So, “whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the right of individuals, or of the minority [conceived of as creditors, those with property, etc.⁵], will be in little danger from interested combinations of the majority.”⁶ Succinctly: the combinations of a majority will be so profoundly difficult to engineer as a result of the fragmentation of political power that society will be ruled by right, rather than right being ruled and reconceived by democratic political power. This helps explain why it takes Civil Wars and economic collapses to produce significant political changes in the United States.

It also redirects our gaze from the Court when thinking about limits to popular sovereignty in our constitutional schema. Far more important than what pieces of legislation the Supreme Court strikes down is the legislation that simply never sees the light of day irrespective of the popular support it enjoys. A turn to even the briefest political histories of the modern Senate (not popularly elected until 1913 and to this day not democratically apportioned) throws light on the consequences of when “society itself shall be broken” to defend the right of those who have property against those who do not, as Madison described the fundamental division on which the Constitution pivots.⁷ From this angle, the filibuster is the paradigmatic moment in American Constitutional law despite not being provided for anywhere in Article I; as constitutional theorists are wont to say, it can be derived from the “spirit of the text.”

If we are to think about tensions and paradoxes in constitutionalism, we must first ask ourselves: Which constitution? In thinking about the particulars of the Constitution of the United States, we must ask ourselves: What democracy? If we enter into these questions as I have attempted to above, then seeing the decisions in Brown v. Board of Education and Citizens United as posing the “same dilemma” isn’t mere mapping; it is instead a reconfiguration of the problem in a manner that entrenches it. To imagine that the Court striking down de jure segregation is the same dilemma as the Court constitutionalizing corporate power in striking down campaign finance reform is to render the questions and dilemmas of sovereignty, democracy, and law as primarily formal questions of thought rather than political questions of power. How can the laws of apartheid constitute the “popular will” when 40% of the population was excluded by such laws from even participating in, much less voting for, the “popularly elected assemblies”? The imagined paradox that courses through the article, as supposedly exemplified by Brown, is no paradox at all in the case of Brown when perceived from the lens of much of Critical Race Theory, for example. By contrast, no one could possibly imagine a similar exclusion of corporate power in our society today in the case of Citizens United. In fact, what sphere of life today escapes from that all-encompassing and increasingly totalitarian form of power?

Understood formally, as the “same dilemma” understands it, the revelation that the concepts of “democracy” and “constitutionalism” are in fact “contested” has something of the power to shock; understood politically, the observation has all the revelatory power of saying “the sun rises in the east.” Which might suggest: we theorists of constitutionalism might need to throw open the windows and let some sunlight in. . .

Given that Sultany is working in some manner in the wake of Foucault’s early turn to Nietzsche (at least that is what I take Sultany’s heavy leaning on “discourse” and its contingent formations and techniques to imply; the simultaneous turn to “phenomenology” and “structure” leads me to hesitate and pause in some confusion)⁸, the relationship between perspectivality and knowing should be a considered one; my question is: from what political perspective does Sultany imagine that he sees when he sees “the field”? And if knowledge produces, what has Sultany produced? Or more troubling: what has Sultany reproduced?