It is ironic that one of the greatest books on constitutional law was written by a journalist. Walter Bagehot’s The English Constitution is a classic study of British politics during the 1860s, but it is also worth reading for its general observations. Most people are familiar with Bagehot’s distinction between the “dignified” parts of a constitution, which give the government its legitimacy but are largely ceremonial, and the “efficient” parts that actually do the governing. (Bagehot put the monarchy in one category and the Cabinet in the other.) Few are aware of his commentary on our Constitution, which is full of gems that rival de Tocqueville’s analysis of American society.
I’ve spent years trying to figure out what Bagehot’s analysis can tell us about contemporary constitutional law, and I think I’m finally getting close to some answers.
What is the “dignified” part of the American Constitution? Bagehot argued that federalism was partly driven by this concern, given that the Founders could not have attracted authority for their project without building on the existing states. Today, the answer is the constitutional text. It is a common joke that students in a constitutional law course read everything except the Constitution. There is something to this point — we take pride in written constitutionalism (just as the UK takes pride (sort of) in the Crown) even though constitutional law has little to do with the text anymore. Oddly enough, you could say that this makes folks like Sandy Levinson, who want to overhaul the few parts of the written text that do still matter, the equivalent of “republicans” who want to abolish the monarchy. Neither group has much support. (This leaves open the issue of what the efficient counterpart to the text is. Maybe I’ll address that in another post, as I’m working on a draft paper about all of this.)
What are some other significant gaps between form and function in constitutional law? Several come to mind, but here are three for starters. First, there is the distinction between the President’s Cabinet and his staff. Everyone knows that staff members are usually the most powerful officials in the Executive Branch, but we still treat Cabinet members as if they were. Cabinet officials have to be confirmed by the Senate and must testify on Capitol Hill — the Chief of Staff is excluded from both requirements. Indeed, you might argue that this is part of what has tipped the scales in favor of executive authority over the last decade. Second, there is the fact that statutes formally need a bare majority in both Houses, but in practice significant (or canonical) statutes need a 2/3 supermajority. (I’ll talk more about that next week.) Third, Pildes and Levinson explained in an article a few years ago that separation of powers really works only where there is a separation of party (different parties control Congress and the Presidency).
Do you have any other nominees?