On Constitutional Disobedience.

• Author: Shinar, Adam
• Position: Book review

ON CONSTITUTIONAL DISOBEDIENCE. By Louis Michael Seidman. (1) New York, N.Y.: Oxford University Press. 2013. Pp. xii + 162. $21.95.

1. INTRODUCTION

   Displeasure with constitutional law has been a fixture in American constitutional scholarship probably for as long as constitutional law has been around. Yet in the main, scholars have worked within the confines of the enterprise itself, trying to show how particular judicial decisions were unwise, rested on faulty logic, or were unsupported given the writer's preferred mode of interpretive methodology. Mainstream constitutional theory also accepted the premises of constitutionalism. Foundational works did not question the desirability of having a constitution or dispute the courts' power of judicial review of legislation, but rather sought to justify it. Different as they are, Bickel's The Least Dangerous Branch, (3) Ely's Democracy and Distrust, (4) Tribe's American Constitutional Law, (5) or Ackerman's We the People, (6) broadly stand for the idea that although constitutionalism and judicial review may seem problematic from a democratic standpoint, they can nevertheless be vindicated in one way or another. And moreover, that the American constitutional project, as it has developed over the years, is one worth preserving.

   In recent decades, however, this approach has begun to unravel. Armed with the political insights of American legal realism and critical legal studies, the internal critique of Supreme Court decisions, while still the bread and butter of constitutional scholarship, has been supplemented by new avenues of constitutional theorizing. The problem for the new wave of constitutional scholarship did not (or not always) lie with faulty judicial reasoning, internal contradictions, or morally troublesome court decisions, but with a deep skepticism about the constitutional project as a whole. Weary of deploying the usual moves against decisions they believed to be mistaken, scholars went after the institutions that produced them, namely, the Supreme Court. The calls to end or reform judicial review grew out of an exasperation over the way constitutional law was made, the institutions in charge of its development, and what scholars believed was the harmful effect of judicial review on the political branches and on the political culture. (7)

   The most important intellectual movement to emerge from this, Popular Constitutionalism, spearheaded the call to "Take the Constitution away from the Courts," or to significantly cut back on the power of judicial review. Popular and progressive constitutionalists, under various stripes, sought to shift the task of constitutional interpretation from the Supreme Court to Congress, to the Executive, to states, to lower courts, to social movements, and to the people at large. (8) Instead of focusing exclusively on the first order level of desirable or undesirable decisions, popular constitutionalists turned to interrogate the second order level of the political institutions that generate those decisions.

   Despite their break with earlier constitutional theorists, popular constitutionalists still claimed adherence to the Constitution, as they sought to reclaim it from courts and return it to the "people." The problem, they maintained, was that courts have monopolized constitutional interpretation. This "judicial overhang" leads legislators to abdicate their constitutional responsibility; having non-elected judges decide constitutional issues, when those involve subjects of deep societal conflict, strips the people of their capacity for self-government. Of course, some of these arguments were not new, but they did crystallize into a more coherent movement that deployed a shared rhetoric and reasoning.

   Popular constitutionalists were not alone. Others, such as Sanford Levinson and Larry Sabato, called to take stock not just of judicial review, but of the constitutional design itself. Shifting the focus from the provisions that spark continued legal and popular interest to the "hardwired" institutional arrangements that structure politics, they argued that the Constitution has democratic deficits, produced unfair results, and generated political gridlock and a dysfunctional Congress. They urged, separately, to revise the Constitution in numerous ways, so as to make it more democratic and responsive to popular will. (9)

   In their own way, however, both popular constitutionalists and constitutional revisionists belong to the camp of constitutional fidelity. Neither questions the need for a constitution. They remain constitutionalists, although they would like to see the Constitution or the practice that attends it transformed. In this sense, the new wave of constitutional theory is still very much connected to the scholarship that preceded it, for neither challenges the basic idea of constitutionalism.

   On the heels of this debate comes Louis Michael Seidman's important and provocative new book, On Constitutional Disobedience. Unlike other constitutional theorists, Seidman is not concerned with how best to interpret the Constitution or the role of the judge. He does not want to revise the Constitution. Instead, he wants us to ignore it. His two overarching arguments are, first, that if an all things considered judgment counsels us to prefer a particular policy, the fact that the Constitution tells us otherwise should not matter. Second, that by invoking the Constitution we use language that gets in the way of all things considered decisions. Thus not only do we not have a political obligation to obey the Constitution, but constitutional discourse harms our political conversations by excluding merit-based considerations.

   In the pages that follow I will present and evaluate Seidman's arguments in favor of constitutional disobedience. While I believe that his core argument about the absence of a political obligation is sound, I will offer a skeptical rejoinder to his vision of political life without a constitution. My main argument is that any political program that wants to do away with constitutionalism must engage in careful comparative institutional analysis. In the end, Seidman may be right, but for his claim to succeed more needs to be said about what constitutions do and how countries that do not operate under written constitutions operate.

2. THE CORE OF THE ARGUMENT

   The puzzle of constitutional obligation, as Seidman puts it, is as follows: If we decide on a course of action, why should the fact that a contrary action is required by an old document have any power over us? If the right way goes against the Constitution, should we not choose what is right over what is written? Seidman's worry is not only that we are making bad decisions because of constitutional obedience, but that when arguments are phrased in constitutional language they unnecessarily raise the stakes of the argument by excluding other arguments that are not traceable to the Constitution. This, Seidman claims, has "poisoned" political discourse.

   Seidman's solution is not to take sides in the prevailing constitutional debates, which he believes are impossible to resolve, but to cut the Gordian knot altogether. Only by putting the Constitution aside, by considering it abstractly, as "a work of art, designed to evoke a mood or emotion, rather than as a legal document commanding specific outcomes," he argues, can we talk about the merits of policy choices without being encumbered by the Constitution (p. 8).

   Of course, in order for us to get to that place, we need to disarm ourselves of the mistaken notion that we are bound by the Constitution. Before we get to that, however, Seidman draws our attention to an overlooked feature of modern debates in constitutional theory. Those revolve around two issues. The first is who should interpret the Constitution. This challenge can be traced to Bickel's countermajoritarian difficulty, (10) and even before that, to Thayer's insistence that courts should refrain from invalidating laws unless in cases of clear mistakes by Congress. (11) The second issue, one which follows from the first, is how the authoritative interpreter should interpret the Constitution. These debates, however, bypass the real question: Why is constitutional obedience warranted in the first place (p. 32)? Everyone assumes that the Constitution is binding and the only question is who should interpret it and how. But the problem goes much deeper. Constitutionalism itself is countermajoritarian. Judicial review is merely a technique for assuring constitutional obedience, but legislators can act out of constitutional obedience and flout the will of their constituents just like judges can ignore majoritarian processes (p. 36). The problem, then, is with constitutionalism and not the particular devices put in place to carry out its commands. (12)

   To substantiate his claim for the absence of an obligation of constitutional obedience, Seidman examines the prevailing justifications grounding such an obligation. These can be divided into three types: arguments from precommitment, time-based arguments, and arguments from stability. The first two are theoretical, the third is empirical. While most of the book is devoted to debunking these justifications, for reasons of space I will discuss them relatively briefly.

   1. REJECTING PRECOMMITMENT

      Precommitment strategists argue that constitutions are desirable because they protect democratic processes from future potential violations due to misjudgments or human excesses. As Cass Sunstein argues, precommitment devices are not in tension with democracy, but rather compatible with democratic self-government. (13) 12 13 For example, free speech and voting rights guarantee that minorities will be heard in the face of hostile majorities. Similarly, constitutionally entrenching a separation of powers scheme reduces the likelihood of future power grabs, while limiting political power. (14) A constitution removes...