When Political Figures Reject Constitutions
posted by David Fontana
With all of the discussion about the rise of constitutions around the world, we might sometimes forget that political figures reject constitutional options in favor of other forms of entrenchment. In the United States, for instance, we know that the Civil Rights Act and the Administrative Procedure Act are functionally constitutional, but formally statutory, and that there was at least some discussion of pushing for constitutional change in those situations, but the statutory option was considered a better choice. In my research for my government in opposition project, I have found that many political coalitions actually preferred having their relevance ensured not through constitutional provisions, but through legislative or other sorts of rules that guaranteed them certain positions of power in the various branches of government.
One interesting research question is why political figures might reject constitutions in favor of other forms of protection. The obvious answer is that constitutional change is usually harder to achieve, and that certainly explains the strategic decision to pursue change through non-constitutional means in many situations. But what might be some other reasons? My initial reaction based on my research is that some political figures might be skeptical of constitutional rules because they see them as rules to be enforced by judges appointed by triumphant political figures, while the enforcement of other sorts of rules might be less tied to who wins elections.
This is an important question for the study of constitutions. The seemingly universal academic consensus is that constitutions are spreading around the world, but there is also a tide of rejection of constitutions.
May 22, 2008 at 10:51 am
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Responses (1)
Aaron Walker - May 22, 2008 at 12:46 pm
Hey Dave,
I see you have found a nice way to soften Bruce Ackerman’s somewhat radical theory, by saying Civil Rights is “functionally constitutional.” And it was nice to see you start blogging here.
As to your question, there is an additional issue, which is to what extent do people feel they are turning over this power to a political body. Let’s be blunt, here (you know I never held my tongue in Ackerman’s class). There was a time when the Supreme Court said its sole job was to read and interpret the constitution as written. Now I am not talking reality, here, just perception of reality. And that pronouncement–that they just interpret the thing as written–was accepted by most people as true. At this point of time, then, it then creates a certain predictability in outcomes, or at least the belief that there is predictability in outcomes.
But since then the courts have declared more and more that they are not going to stick to the four corners of the constitution, and the notion that judges do not merely interpret the constition as written (regardless of whether they should) has become more and more common.
In that environment, then, its harder to convince people to go to constitutionalism. In the case of a despot, you are then truly giving up your power to a body of people, who might decide against you, EVEN IF the actual constitution is on your side. In the case of a minimally democratic nation, its hard to explain to people why the decision should be taken away from the people and given effectively to 9 old men and women. It starts to make the American Supreme Court look more like the third chamber of congress, which leads to the question: do we really neeed a third chamber?
It’s just something to think about as you do your research.
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