Thinking Constitutionally

Ben Peterson

Current Issue

If the United States is undergoing a period of "constitutional crisis" or "constitutional rot," to borrow Jack Balkin's phrase, at least we may be compensated with a renewal of constitutional theory. The Obama and Trump administrations' use of executive power provoked cries on the right and left that our longstanding adherence to constitutional norms is declining. To many, it seems, the United States is slouching toward arbitrary governance.

Two related weaknesses are apparent in many of the responses to this perceived constitutional atrophy: an over-emphasis on the restoration of norms, and a dearth of institutional analysis. Refocusing on institutions will be integral to the development of a renewed, more robust way of thinking about the Constitution.

To properly analyze our constitutional vulnerabilities today, we must assess Congress as an institution. The vision of a Congress restored to its rightful station at the center of national self-government cannot be achieved without a clear understanding of the institutional incentives guiding the behavior of individual congressional representatives. By reshaping these incentives, and by revisiting the philosophical underpinnings and institutional structures that give form to our constitutional theory, we can begin to rejuvenate our republic. 

NORMS AND INSTITUTIONS

What is a constitution? How is such a fragile social construct to be maintained? To some, a constitution is a set of fundamental rules by which a political community manages its public affairs. Put differently, it is a more or less fixed set of practices and norms that is not subject to the usual political process. The historian and legal scholar Benjamin Straumann described these norms as entrenched, enduring, and important, meaning that they actually influence political institutions and actors.

Others argue that constitutions depend as much or more on the specific institutional arrangements that actualize and sustain norms — such as checks and balances, separation of powers, and parliamentary structures — than on the norms themselves. The British political theorist M.J.C. Vile captured both the normative and institutional components of constitutional thought in his definitions of "constitutional theory" and "constitutionalism." As he wrote in Constitutionalism and the Separation of Powers,

[W]hat is "constitutional theory"? It is at once both more than and less than the study of political institutions....[I]n the constitutional State there must be a set of rules which effectively restrains the exercise of governmental power. "Constitutionalism" consists in the advocacy of certain types of institutional arrangement, on the grounds that certain ends will be achieved in this way, and there is therefore introduced into the discussion a normative element; but it is a normative element based upon the belief that there are certain demonstrable relationships between given types of institutional arrangement and the safeguarding of important values.

A robust constitutionalism must combine these two distinct but interrelated elements. First, it must rest on a normative foundation that prescribes the appropriate character and limits of government. This might be termed a "fundamental law" derived from a shared public philosophy. Second, it must include an institutional arrangement that effectively incentivizes adherence to that fundamental law.

Let us begin by examining the normative component. A constitution's authority does not rest on merely procedural grounds. Critically, the constitution of a polity supersedes the validity of other laws, serving as the standard against which citizens and political actors evaluate legislation. Cicero, to whom the American founders paid special attention, roots the Roman constitution in a substantive vision of the common good and natural law. Along with other Roman statesman and philosophers, he articulated a hierarchical distinction between ius and lex: higher-order, fundamental law and positive legislation. Cicero drew a clear connection between the Roman constitution and what he described as a natural, moral law, derived from the order of the natural world and from the human place in that order. The notion of a fundamental, unchanging law undergirding a constitution seems indispensable to any lasting constitutional polity.

Cicero's theories regarding the Roman constitution emerged largely in response to a number of constitutional crises in the late republic, which gradually led to the erosion of Rome's constitution. Such crises are more likely to occur when norms — the habits and standards of social behavior that support democratic institutions — are not upheld. Many modern scholars worry that our own constitutional order could collapse as a result of "norm-flouting." As political scientists Steven Levitsky and Daniel Ziblatt argued in the New Republic,

Institutions alone are not enough to rein in elected autocrats. Constitutions must be defended...by democratic norms, or unwritten rules of toleration and restraint. Without robust norms, constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be. Instead, institutions become political weapons, wielded forcefully by those who control them against those who do not.

Similarly, in Constitutional Morality and the Rise of Quasi-Law, co-authors Bruce Frohnen and George Carey analyzed the broad shift from a "mediating constitution" to a "commanding constitution" consisting of executive orders, guidance documents, and other forms of quasi-law. In their view, this form of governance lacks "the predictability and consistency essential for the legal system to function properly....and the government no longer acts according to the rule of law." They argued that this shift has damaged the public's understanding of the proper ends of a constitution. They also emphasized the role of virtues and habits in supporting a constitutional order.

But while habits of self-restraint and toleration among politicians are certainly desirable, an overreliance on the virtue and sense of duty of political actors seems misguided. Restoring "constitutional morality" is a noble aim, but we cannot depend too much on the character of political leaders to achieve it. Further, toleration and restraint cannot be the means of restraining political actors who step beyond their constitutional bounds.

We should also recall that norm-flouting is nothing new. George Washington established the norm that presidents serve a maximum of two terms, but President Franklin Roosevelt defied that standard. This prompted Congress to initiate the 22nd Amendment, limiting the president to two terms. We should not expect our politicians to adhere to conventions out of habit or respect; norms often require enforcement by other political actors incentivized to do so. Constitutions also require the quality that Straumann identifies as political importance or effectiveness, and that is the purview of institutional analysis.

How can we make constitutional norms binding in the gritty world of public affairs? Cicero was concerned not only with formulating the natural-law basis of the Roman constitution but with diagnosing what had gone wrong. He wished to understand why Rome's republican institutions were collapsing in the latter half of the first century B.C., culminating in the dictatorships of Sulla and Julius Caesar, and the eventual transition to empire. To Straumann, this recognition of the limits of normative pull is a key component of Roman constitutional thought, which relied on institutional devices as well as norms to maintain its constitution.

As James Rogers wrote in a recent essay for Law and Liberty, the aim of the constitutional theory expressed in the Federalist Papers is to design a system that does not rely on virtuous rulers or "constitutional morality," but one that can withstand self-interested political actors. Proclaiming the importance of adhering to customary norms or the desirability of reasserting congressional power will not be enough to ensure the preservation of constitutional order.

Insights from various "new institutionalists" have also shed light on the role of institutions. In their classic article, "Constitutions and Commitment," economic historians Douglass North and Barry Weingast explain the development of social institutions as the accumulated outcomes of situations of interdependent choice. Only outcomes that reach "equilibrium," where no party is better off "defecting" or sabotaging an institution, can endure.

In their discussion of the English constitution of the 17th century, North and Weingast argued that, in order for rules limiting governmental authority to be "politically important" (in Straumann's terms), "[t]he constitution must be self-enforcing in the sense that the major parties to the bargain must have an incentive to abide by the bargain after it is made." In other words, rules on paper mean little unless each party to the agreement can make a "credible commitment" to following them. In the case of the English constitution, the credible threat of revolution helped secure credible commitment from the crown. The idea of self-enforcement — the shared incentive of parties, or branches of government, to enforce constraints on government power — is crucial to the constitutional way of thinking.

The inculcation of constitutional norms and habits of restraint could be advantageous, but only as part of a larger reclamation of the normative and institutional elements of a robust constitutional theory. This reclamation will involve engagement with the experiences, habits of thought, and theory underlying the American constitutional tradition; we need not only to think about the Constitution, but to think constitutionally. Preserving and rejuvenating a robust constitutional order in the United States, and specifically restoring Congress to its role as the locus of policy and representative self-government, will require re-examination of both the normative and institutional components of constitutionalism.

A ROBUST CONSTITUTIONALISM

So while Western constitutionalism entails an element of normative and legal theory, no less important is an assessment of political tendencies that predict how citizens and leaders will behave in the context of different institutional arrangements. Of course, the normative and institutional components are linked: Institutions are, in theory, designed to prevent an excessive concentration of power and tyranny. The key is identifying a structure that will serve the normative ends the constitution is meant to secure.

Like Cicero, the American framers believed in a higher law to which the institutions of the fledgling nation ought to adhere. Two core — and somewhat competing — normative bases form the role of the legislature in the American constitutional system: ensuring representation and guarding against legislative tyranny.

On the one hand, representation of the citizenry is the sine qua non of republican government, which James Madison defined as "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." The lawmaking power is vested in the branch of government with the most direct accountability to the people; as Madison wrote in Federalist No. 63, it should reflect the "deliberate sense of the community."

Yet Madison also called the legislative branch an "impetuous vortex" that would tend to absorb too much power. In Federalist No. 51, Madison wrote that "the legislative authority necessarily predominates" in a republic, and warned against allowing it to assume tyrannical control. While Madison did not wield the analytic tools of contemporary game theorists, he clearly grasped the need to incentivize political actors to enforce constitutional norms. Rather than assuming that political leaders would be virtuous, the framers took a skeptical view of human nature. Madison advanced the thesis that "the structure of the government must furnish the proper checks and balances between the different departments," evincing the institutional component of a robust constitutional theory. His famous claim that "[a]mbition must be made to counteract ambition" captures the essential theory underlying the Constitution. Madison assumed political players would work to aggrandize their own branches, creating an equilibrium in which none could acquire too much power.

It is not enough for these arrangements to be codified in a written constitution, though that may help. As Madison argued in Federalist No. 51, the incentive structure must be arranged so that political actors will want to constrain usurping branches, without overreaching themselves:

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others....A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.

Madison also proffered an institutional solution to the problem of legislative tyranny:

[I]t is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.

Needless to say, many of Madison's insights have been proven correct. But while he feared a power-hungry legislature and strove to limit its influence, today's political thinkers must apply constitutional analysis to a different problem: not a congressional vortex, but a congressional void.

RECOVERING CONGRESS

The roots of the congressional void are intellectual, historical, and institutional. Progressives like President Woodrow Wilson laid much of the theoretical and political groundwork for an enlargement of the federal bureaucracy in the late-19th and early-20th centuries, and responses to major crises including the Great Depression and two world wars led to expanded executive authority. 

But from the perspective of institutional analysis, it is critical to explore why the "precautions" Madison urged failed to create the equilibrium he envisioned. For a while, Congress seemed to be gaining power. Following President Franklin Roosevelt's lead during the Great Depression, a Democratic-majority Congress voted to increase the regulatory and spending powers of the national government. The Supreme Court followed suit in what Charles Murray in By the People called "constitutional revolution" from 1937-1942, expanding the purview of the Commerce Clause and sanctioning congressional regulation on a host of what had been state prerogatives: Instead of checking its rival branch, the Court developed a doctrine that presumed the constitutionality of legislation.

But despite the fact that Congress seemed to be absorbing power up until around the mid-20th century, it is now clear that it also ceded a great deal to the executive branch and the "administrative state," particularly in creating several new regulatory agencies in the 1960s and early '70s, a period when the presidency switched from Democratic to Republican control and Democrats controlled the Congress. The latter development is particularly problematic, as the rulemaking power of administrators effectively removes the responsibility of governing from the people's representatives. The answer to how this all happened seems obvious in hindsight: Expanding the role of the federal government meant expanding the bureaucracy, empowering courts, and strengthening affected interest groups.

The more Congress charged the president with carrying out — often responding to the president's agenda — the more power it ceded to the unelected administrative apparatus. In a further twist, the expansion of power in the 20th century seemed to work in the exact opposite way Madison had predicted through his inter-branch theory: It is a story of inter-branch collusion rather than inter-branch competition. The outsized powers of the executive and judicial branches began with executive initiatives, followed by congressional legislation, and finally sealed with judicial rubber-stamps. Institutional safeguards against concentrated power were lost in the shuffle. As James Rogers has written, members of Congress did not perceive their interests to be sufficiently "opposite and rival" to the other branches.

Madison's insights about elections are also notable, and seem to reveal a delegation problem inherent in our system of separated powers. Madison expected that regular elections would act as a check on congressional power. Instead, direct elections for the House and Senate seem to have worked at cross purposes with other institutional precautions against concentrated government power, and now seem to encourage our representatives to cede power to the executive and courts.

Some analysts have suggested that the congressional incentives to shift power to the bureaucracy, and to pander to polarized constituencies, are simply too strong to effectively change. The costs of these actions are low, both electorally and in terms of actual time and effort. Especially in some highly technical areas, the benefits that accrue to congressional leaders for retaining control of policy do not outweigh the downsides. As political scientist B. Dan Wood's entry on congressional delegation to the executive in the Oxford Handbook of the American Congress suggests, this may be particularly true when congressional majorities and the executive branch share policy preferences — perhaps when one party controls both branches. In such cases, legislators can delegate to reduce the "transaction costs" of crafting and monitoring detailed policy initiatives without fear of "political holdup."

There is no shortage of clarion calls for Congress to reclaim its constitutional role, or of detailed proposals for how to accomplish this. But the call for Congress to reassert its position in our republic raises a deeper institutional question that is harder to answer: What would incentivize members of Congress to do so? Any sentence that begins "Congress should..." will not do. Yes, Congress should. But why would it?

Congress has the power to revise or curtail the rulemaking powers of federal agencies, but it has instead ceded its own power to the executive branch and administrative agencies — or "self-neutered," in the vivid formulation of Senator Ben Sasse. Congress must change its mindset, and that will require rearranging the incentives of representatives. Assuming responsibility for the national policy agenda, and checking the power of the executive and the courts, must appear to serve Congress's ends and further its ambitions. Political scientist David Mayhew's classic 1974 book, Congress: The Electoral Connection, may point the way forward. Mayhew famously argued a theory that might seem obvious: The principal motivation of legislators is re-election, and the pursuit of this goal affects the way they behave and form public policy. To change Congress, we must work with what drives it as an institution.

TOWARD RESTORATION 

Strengthening Congress cannot begin with Congress, then, but must start with the voting public. Even as public approval of Congress has reached historic lows in recent years, incumbents generally have an easy time securing re-election. If Congress is to restore itself, there must be greater costs for abdicating responsibility and greater benefits for retaining it. Consider as a potential model the grading system that the National Rifle Association and other special-interest groups use to score politicians and influence electoral outcomes. If a respected nonpartisan organization or network could craft a general "good governance" grading system that is taken seriously, such a tool could begin to reshape perceptions about what it means to be a good member of Congress. Eventually, perhaps members would have incentive to engage in effective governance as opposed to merely staking positions or taking credit.

The academic and public work of Craig Volden, Alan Wiseman, and Greer Kelly at the Center for Effective Lawmaking constitutes an interesting and welcome step in the direction of identifying the legislative performance of individual members of Congress. Volden and Wiseman have generated a Legislative Effectiveness Score (LES) that captures legislators' ability not only to talk the talk of policy positions, but to effectively shepherd proposed legislation through the process of becoming law, weighted by substance and significance.

As Volden and Wiseman acknowledge, the LES leaves out some important elements of effective representation, including obstruction, which might be especially relevant to restraining executive power and asserting congressional authority; think of Nancy Pelosi and Chuck Schumer's recent standoff with President Trump. The LES also does not incorporate any weight for the type of legislation lawmakers shepherd through the process. An additional dimension by which to evaluate lawmakers' effectiveness might be to distinguish between laws that preserve congressional prerogatives and those that delegate substantial rulemaking powers to other agencies, as David Epstein and Sharyn O'Halloran do in Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers.

Still, the LES represents the sort of initiative that may reshape the way voters think about representatives; they should be legislators and policymakers, not just position-takers on an agenda set by the president.

Greg Weiner and Richard Reinsch, II, have recently articulated a powerful call to boost the power of Congress through specific mechanisms, including reclaiming the budget process for the legislature, restoring the committee system, and forgoing the use of omnibus bills. In 2016, Senator Mike Lee of Utah launched an initiative aimed at such goals with his Article 1 Project, which he describes as "a new network of House and Senate conservatives working together on a broad agenda of reform to strengthen Congress by reclaiming its constitutional legislative powers." In a May 2017 speech at the Federalist Society, he advocated the passage of three pieces of legislation: the Regulations from the Executive in Need of Scrutiny (REINS) Act, the Separation of Powers Restoration Act, and the Agency Accountability Act, all designed to rebalance the distribution of governmental powers away from the executive and back toward the legislative and judicial branches — especially powers related to rulemaking he says have been ceded to executive agencies. Representative Warren Davidson of Ohio has proposed a House resolution with similar aims.

Lee's goal "to re-constitutionalize the federal government" is laudable, and may well be successful. The Trump presidency may, perhaps counterintuitively, offer a bipartisan, electoral incentive to limit executive power. Yet all these proposals, including the suggestion advanced here, illustrate a great paradox at the heart of American constitutional theory, reflected in both its normative and institutional components.

THE PARADOX OF AMERICAN CONSTITUTIONALISM 

Ultimately, voters can alter the nature of our constitutional system, by exerting pressure on their representatives in the states and the Congress. In this way, the institutional and normative components of the Constitution are deeply entangled.

The "dependence on the people" that Madison described as the "primary control on the government" is at once the core normative element and the core institutional element of our political system. What the people come to see as normative is also the only truly effective institutional restraint. Pace the framers, electoral incentives trump branch loyalty, and the people — or at least a concurrent majority of their representatives — can alter even the very structure of the federal union.

In 1987, Russell Kirk expounded upon the written and unwritten constitutions in the United States. In the first of a two-part essay published in Modern Age, he lamented a widespread sense of constitutional complacency:

Probably the considerable majority of Americans today assume that our national constitutions will endure for time out of mind; that the political order…which the present generation knows, will be known also by their grandchildren and great-grandchildren…that the United States of America, as a system of order and justice and freedom, is immutable.

The mood today is strikingly different. Some seem to want to be rid of the Constitution, and others seem to think it has already been lost. But even if we no longer suffer from constitutional complacency, rethinking and adapting a constitutional theory that can meet present needs will still require sustained effort — especially since the most difficult task may be restoring a shared public philosophy, furnishing the electoral incentives on which a republican constitutional order must ultimately depend.

In that sense, a restoration of "constitutional morality" — an improved understanding among the public at large of their role in governance, as well as that of their representatives — will be vital to correcting the present constitutional atrophy. This is all the more reason for academics, political writers, and interest groups not directly at the mercy of the partisan fray to address both the substantive and institutional components of constitutionalism. A renewed constitutionalism will entail thinking through the normative ends of government in a free society and the institutional arrangements most likely to secure those ends. Broader and deeper education in constitutional thinking that, while not merely parroting the framers' conclusions, imbibes their ethos is essential for preserving and renewing constitutionalism in practice.

Ben Peterson is a Ph.D. student in the Texas A&M Department of Political Science.


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