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Political constitutionalism.

In "Restoring the Constitution,"James Ceaser has presented a new teaching on "political constitutionalism" (Spring 2012). Now that the Supreme Court has spoken on the Affordable Care Act, I wonder whether he wants to embrace Chief Justice John Roberts as an adherent to this new kind of constitutionalism. But let me put off that question and start by explaining why I don't believe the Constitution's framers or previous generations of American statesmen subscribed to this version of Ceaserism.

The Philadelphia Convention remained preoccupied, down to the last weeks, with such seemingly picayune issues as whether or not Congress should have the power to tax exports (finally deciding not: Article L Section 9, Clause 5) or whether states should or should not be allowed to collect any sort of fees for the use of their ports (yes, but only with severe limits: see Article I, Section 10, Clause 2). The Virginia delegates originally proposed that Congress be authorized "to legislate in all cases to which the separate states are incompetent"--as Ceaser would perhaps have preferred. The Convention actually settled on a fairly detailed enumeration of federal powers--on the assumption that a more open-ended grant of powers would be abused. In Ceaser's view, the framers should have indicated in general terms that the principal federal officers should be "reasonably mature" and "reasonably well-informed about their constituents." Instead they stipulated precise (but varying) age and residency qualifications for representatives, senators, and presidents. In Ceaser's view, the framers should have included a general admonition for cooperation between the branches. Instead, they stipulated in pedantic detail exactly which measures passed by the House and Senate would need presidential approval to take effect and which would not, which officers could be appointed by each chamber, which officials would be appointed by the president (or by others, answerable to the president). And so on.

From Ceaser's perspective, the actual text of the actual Constitution may seem excessively "legalistic," preoccupied as it is with "formulas and rules." But the fact is, most of the delegates at Philadelphia were trained lawyers. And most had been involved, only a decade earlier, in mobilizing a revolution against Britain on the rather "legalistic" or "procedural" ground that the British Parliament was not authorized to impose "internal taxes" on Americans-not even the sort of modest excise taxes that Americans were quite willing to impose on themselves.

Nor is it true that great party debates thereafter eschewed legalistic wrangling in favor of Ceaser's version of "political constitutionalism." Perhaps the early debates between Jeffersonians and Federalists--with their clause-by-clause parsings, to determine the validity of Hamilton's Bank or Washington's Neutrality Proclamation--don't count, because the participants were too close to the actual founding. But there was quite a lot of parsing of constitutional clauses and Supreme Court doctrine and procedure in the Lincoln-Douglas debates. The ensuing national Republican Platform in 1860 not only affirmed--against the contrary doctrine of Stephen Douglas Democrats--that Congress had power to prohibit slavery in federal territories: it also insisted that the language of the 5th Amendment required Congress to avoid giving any protection to slavery in federal territories.

True, there were ultimate winners and losers in these disputes. Over time, the country has embraced different understandings of what the Constitution does actually allow or require. Ceaser, himself, however, condemns those "law professors" who claim that "the public" can decide each dispute as it pleases, making the Constitution whatever the prevailing majority wants it to be. But Ceaser remains opposed to precedents and rules as a guide to what the Constitution means. If the broad ends of the Constitution don't imply limiting rules and formulae, how does the Constitution constrain anyone from introducing new exceptions for particular favored measures?

I take the point that we can hope to change predominant opinion and prevailing practice, by repudiating past practice in the light of later (hopefully better) understandings. President Harry Truman claimed that a resolution of the United Nations Security Council gave him authority to commit the United States to a full-scale war in Korea without any separate authorization from Congress. That stand provoked so much controversy that none of Truman's successors has reaffirmed the argument. President Obama's Justice Department insisted the war in Libya was lawful without congressional authorization, not because it was authorized by the U.N. but because it was meant to be very brief and involve only a very peripheral American commitment. I hope our next president will try to limit the force of that precedent, too.

But the next president won't still be fighting Truman's war in Korea or Obama's war in Libya. Ceaser's notion seems to be that you can repudiate a past mistake without committing to a rule that excludes it--and so without actually repudiating the current legal validity of that supposed past mistake. For Ceaser, the real argument against Obamacare must turn on the net sum of effects of ordinary policies across all policy fields. Ceaser's 'political constitutionalism" does not, as he tells us, require leaders to "undo every past obligation that has been voted into law, but to chart a course from where we fire now." Unless I've misunderstood, that constitutional standard seems to invite proponents of Obamacare to say, "Well, yes, let's respect the Constitution from here on ... and let's especially restrict federal authority for President Romney. But let's keep this last great Progressive measure in place."

Or else, Ceaser seems to think we can say, "No, Obamacare is too recent to qualify as constitutional, but don't worry about Social Security, even if it rests on the same constitutional mistakes-we'll grandfather that one into our restored Constitution." How do you distinguish those programs that should be allowed to remain and those that must be repudiated under the imperatives of "political constitunonalism"?

Critics of Obamacare offered an entirely serious legal argument, one so easy to grasp that even a number of federal judges embraced it, before five justices of the Supreme Court finally endorsed it in National Federation of Independent Business v. Sebelius. The argument boils down to this: if someone sitting at home doing nothing whatever can be forced to participate in a federal mandate--on the grounds that his failure to conform is a threat to "commerce among the states"--then the congressional power over "commerce" has no limits whatever. The proof that Congress never previously imagined it had this power is that, in all the vast accumulation of federal legislation now on the books, no previous law attempted what Obamacare does--imposing new personal obligations on those not engaged in commercial activities nor engaged in any identifiable activities of any sort.

The problem is that, as even Chief Justice Roberts acknowledged, the taxing power is not unlimited, either. It would have been quite odd for the framers to limit the reach of some powers and then insert a catch-all power to accomplish all the forbidden objects by simply fashioning controls as prohibitive taxes. Apart from implied limits, one limitation is stated quite explicitly: "No capitation or other direct tax shall be laid, unless in proportion to the census [of population in each state]" (Article I, Section 9, Clause 4). Viewed as a tax, the Obamacare mandate looks very much like a "capitation"--a head tax--on those heads harboring bad thoughts about participating in a federal program, who then are taxed for ... the non-activity of declining to buy health insurance. If that is not a prohibited "capitation," what could be? If that restriction has already been repealed by "political constitutionalism," why is there no precedent of any kind for such a head tax on soreheads? To his credit, Roberts did try to counter this argument. But he could cite no precedent for approving a federal tax on non-activity by distinguishing it from a "direct tax" on ownership (or on having an intact head). As the dissenters pointed out, Roberts's argument rested on a "fly-by-night ... argument" leading to "lick and a promise" conclusions.

I don't think Chief Justice Roberts will have the last word in this debate. Perhaps he did not even expect to have the last word. I think the objections posed by the dissenters are worth pursuing precisely because they do draw some basic lines and because they are lines we might still insist upon. Obamacare crosses lines that are not obscure or arcane. That won't solve our budget crisis in itself. But it will remind our elected representatives that their power is subject to limits.

By insisting on respect for those boundaries that can be formulated as rules, we don't reduce the whole Constitution to rules. But we show that constitutional claims must be taken seriously. Even if you hope to appeal to the "spirit of the Constitution"--as opposed to the letter--you had better hope you still have some definite lettering to start your argument. Then you might hope to show that a questionable proposal is at least analogous to something clearly forbidden (as overly invidious laws have at times been compared with prohibited bills of attainder, though technically they are not bills of attainder if they do not impose explicit criminal penalties).

Thomas Jefferson said, "Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction." Let me say to my friend and colleague from Mr. Jefferson's university: Jefferson did have a good point there. We may not now accept all of Jefferson's particular constructions, but we can't embrace even the general idea of a limited constitution if we can't specify some limits. Limits that depend on calculating the net sum of all the laws and regulations on the books may be "political" in some technocrat's understanding of "politics." If that is the meaning of "political constitutionalism," I don't see how it ever can engage an ordinary citizen and I don't think it is a safe replacement for our traditional version of constitutionalism.

Jeremy Rabkin

George Mason University

School of Law

Arlington, VA

James W. Ceaser replies:

My good friend Jeremy Rabkin has grown more sensitive to legalities since he became a law professor. It is therefore not surprising that his commentary is critical of the concept of political constitutionalism. Rabkin claims that it is inaccurate and dangerous.

On the first count, he contends that when the Constitution has been debated in the public arena in the past, most of the arguments have in fact been legalistic. The term political constitutionalism, he argues, contributes to a distortion of the historical record. Political debates are filled with lots of "parsings."

Any disagreements Rabkin and I may have about the historical record could not be settled without a long, detailed discussion, which is impossible to undertake here. But as the reader of my essay should be able to see, I never sought to exclude legal reasoning from expressions of political constitutionalism, any more, I hope, than Rabkin would ban lawyers and judges from referring to general constitutional principles. Both have been used. But discourse in programs of political constitutionalism tends to be different, not just because the public has a limited interest in lawyerly parsings, but also because the purpose of political constitutionalism is often different from that of legal constitutionalism.

Political constitutionalism is usually less interested in settling a specific case than in enacting a whole agenda or preventing an agenda from being enacted. When, for example, Thomas Jefferson spoke in his First Inaugural of "support of the State governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies," he was invoking a general theme of political constitutionalism that his party had vigorously defended during the previous four years. He was not seeking a specific legal ruling in a case of law. Similarly, when President William Howard Taft in his 1912 presidential campaign sought to defend constitutional government against the "political emotionalists and neurotics" [read: Theodore Roosevelt], he was launching a program of political constitutionalism: "The real usefulness of the Republican Party consists in its conservative tendencies to preserve our constitutional government and prevent its serious injury."

Rabkin relents somewhat on his first criticism in order to transition to his second and more important point. His charge here is that the concept of political constitutionalism can only do harm. It opens the floodgates to a sloppy way of thinking that undermines the legal articulation of clear lines, lines that alone can provide real constitutional protection.

The important distinction for Rabkin--the one he believes can guide us--is between legalistic reasoning and constitutional bombast. Political constitutionalism embodies and encourages constitutional bombast. But Rabkin is so much in the thrall of legalistic discourse that he ends his essay by indulging in a bit of bombast of his own, wrapping himself and his cause in the mantle of Jefferson.

Rabkin has fun at my expense by elevating me to the imaginary status of framer-for-a-day. In my Constitution, the qualifications for holding office would be the simple statements that elected officials should be "reasonably mature" and "reasonably well-informed about their constituents," rather than the legal language we find in the Constitution that stipulates age and residency qualifications for representatives, for senators and for presidents. Since Rabkin has extended the bait, let me swallow half of it. Let the founders' legal language stand, but there is nothing wrong in inferring from it the reasons and principles behind the words. Not only does an articulation of these principles aid in understanding the document and cultivating attachment to it, but it can serve to help guide a program of political constitutionalism. We know, for example, that the goal of representatives being "reasonably well-informed about their constituents" was important enough to George Washington that it precipitated his only comment at the convention, when he asked for change in language to ensure a broader initial representation, on the grounds that the existing language might offer "insufficient security for the rights & interests of the people" The purpose is important, and it figured in debates in Congress about whether or not to enact a statute requiring representatives to be elected in individual districts, rather than selected at large by general tickets for the whole state. The letter of the law is only part of the Constitution. It bids us to try to recognize its spirit, so that we might know how to proceed to promote its objectives.

The sparring here opens up to a larger point. The aim of my essay was not to replace legal constitutionalism with political constitutionalism, but to revive political constitutionalism. The two are mechanisms that often proceed on different planes. Only sometimes do they overlap and it is rarer still that they directly conflict. Courts, as I see it, can continue doing all that they do legally, only we should not ascribe more authority to that function than it is supposed to have. Besides, courts and legal line-drawing are ill-equipped to promote constitutionality in some of its most important respects. There is often more constitutionality in the sum of legislation and of administrative rules than in much of the corpus of court decisions. If one is speaking today of a concern for federalism and for maintaining a federal government of enumerated powers, the protection of these ends will come from judging the implications of a statute like No Child Left Behind, which risks, under the guise of testing standards, transferring effective control of large parts of the curriculum in our schools to federal authorities. If one is concerned with the constitutional issue of excessive administrative discretion and delegation of authority to administrative bodies, it will be necessary to look at the net effect of many statutes and formulate new legislative measures to address these problems.

Solutions can only come from a political party that articulates a full program of political constitutionalism. Constitutionality is not always a matter of setting a legal line, but often advancing in a direction according to political judgments. One will not see the whole Constitution unless one knows where to look for it.

A revival of an understanding of what political constitutionalism is, which is a precondition to adopting any intelligent program of political constitutionalism, is now essential. It is essential not chiefly because political constitutionalism was once robustly practiced (though it was), nor because political constitutionalism connects political leaders and the public more closely to the Constitution (though it does), but because it is the constitutional position that retains the proper balance among our institutions.

Jefferson for a time held that no written constitution would be able to sustain itself--hence his proposal that each generation write and ratify its own constitution. In response, different methods were proposed or developed for maintaining a written constitution. One was a reliance on courts to settle the meaning of the Constitution by judicial determination. Another was to give sufficient power to different parts of the system to protect and defend their respective powers. Finally, there was political constitutionalism, political leaders and parties sustaining the Constitution through the political process. It is no disparagement of judicial review to point out that courts were never intended to be the sole mechanism for settling constitutionality. Such a role would give them more authority than they could safely exercise.

What about the relations between legal and political constitutionalism? In what areas and in what ways do they intersect with one another? There are a few different categories. First are the instances of direct conflict. The Supreme Court may hold that a law or action violates the Constitution in opposition to what a program of political constitutionalism supports. Under the system of judicial review, the Court's view must be legally respected. Political constitutionalism is not a doctrine of lawlessness or disobedience. It does not derogate from the legal powers of the Court. A second category consists of the instances in which the types of constitutionalism function in harmony. The Supreme Court interprets the Constitution in a manner favored by a program of political constitutionalism. There is a third area in which the two kinds of constitutionalism barely touch one another. A program of political constitutionalism succeeds in passing legislation and enacting measures that are never subject to litigation or challenge in the courts. The final category is one in which the two forms of constitutionalism embrace opposed positions intellectually or theoretically, but in which there is no legal conflict. When the Supreme Court holds a certain law to be constitutional, i.e., not in violation of any constitutional provision, it does not follow that a party, following a program of political constitutionalism, must recognize it as constitutional. A party can continue to seek to repeal the law based on its own view of constitutional standards.

Thus today, while the Court has judged Obamacare to be constitutional, there is no legal reason why the Republican Party must follow suit. The Court may control actions, it does not dictate thought. It is in this area today, however, that the public and parties increasingly accept the Court's opinions as definitive. Here is where the ascendancy of legal constitutionalism is so evident. Some blame this development on the arrogance of judges, an arrogance we have come to accept. It is more correct to attribute it to a grave error of political scientists, who have failed to make clear the character of our constitutional system. People will only challenge this outsized view of the Court if they understand what political constitutionalism is and why it is a legitimate part of the political system.

It is true that a program of political constitutionalism would be at its strongest, so far as public presentation is concerned, if it had a perfect rule it could articulate and stick to without deviation. But political constitutionalism operates in a realm in which success is achieved by winning a majority and pushing forward an agenda. Perfect consistency can sometimes be an impediment to popular support. A party is answerable to the public, not to judges.

If it were a matter of strict legal reasoning, I would clearly wish to have Rabkin as counsel. We had a colloquy about Obamacare in October, before it was even clear that the case would be heard in this session. Fearing that the law would not be struck down, I tried to rally the case against it by urging recourse to a program of political constitutionalism. I tried to minimize the legal weight of what the court was doing, arguing that the act would have easily passed muster if the exact same law had been passed under the tax provision rather than relying, implicitly, on the Commerce Clause. My source for this claim was the consensus of legal experts, not a study of the Constitution. Rabkin not only took me to task for my laziness, but he presented for the first time a compelling legal argument for why the individual mandate was just as unconstitutional under the taxing power as under the commerce clause. Parsing Article I, Section 9, Clause 4, he wrote "Viewed as a tax, the Obamacare mandate looks very much like a 'capitation'--a head tax--on those ... declining to buy health insurance." He goes on, "If that is not a prohibited 'capitation,' what could be?" Of course, as we know, the Court answered: almost nothing. I hope that Jeremy Rabkin pursues his legal line of reasoning and that at some point, by the power of his argument, he succeeds in forcing a change. In the meantime, however, the battle will need to move to the political arena. In the belief that the public might have some difficulty with his legal argument, I propose that he relax his standards a little and join with me in sounding the call: "No capitation without representation!"

Rabkin at one point seems to offer a concession to me, on the condition that I offer one to him in return: "Even if you hope to appeal to the spirit of the Constitution-as opposed to the letter--you had better hope that you still have some definite lettering." I endorse the spirit of this comment. So it may be that we are not so far apart after all, though, to paraphrase a fine legalistic distinction, it all depends what the meaning of "some" is.

For the full exchange between Jeremy Rabkin and James Ceaser, and for more discussion of the CRB's Spring 2012 cover essays, visit our online feature, Upon Further Review, at
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Author:Rabkin, Jeremy
Publication:Claremont Review of Books
Article Type:Letter to the editor
Date:Jun 22, 2012
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