40 Federalism And Constitutional Entrenchment Jacob T Levy1 The

40 federalism and constitutional entrenchment jacob t. levy1 the turn from the courts one of the most striking developments in the

40
Federalism and Constitutional Entrenchment
Jacob T. Levy1
The turn from the courts
One of the most striking developments in the past ten-plus years of
constitutional theory has been the partial or wholesale critique of
judicial review among those traditionally identified as ‘legal
liberals’ or ‘liberal legalists.’ In its moderate versions, this
critique encompasses Cass Sunstein’s account of judicial minimalism
and Mark Tushnet’s call to “take the Constitution away from the
courts.”2 Its least moderate prominent version is the sweeping
critique Jeremy Waldron has offered over almost twenty years of most
constitutional judicial review in well-functioning democratic systems.3
These debates in recent political, legal, and constitutional theory
about the idea, and legitimacy, of constitutional entrenchment have
mainly focused on the entrenchment of substantive normative
commitments and, especially, of bills of judicially-enforceable
rights. American constitutional theory has been preoccupied with cases
like these since at least the Warren Court; Canadian constitutional
theory has followed a similar path since the enactment of the Charter
of Rights and Freedoms; and the relevant debates in Britain have
centered on whether that country ought to have such a bill of rights.
But most entrenched constitutional provisions—which is to say, most
constitutional provisions in most states with written
constitutions—concern procedures and institutional arrangements. In
this essay I try to draw attention to such institutional arrangements,
and particularly to the arrangements surrounding federalism. While the
constitutional entrenchment of federalism and federalist arrangements
is, I think, defensible and perhaps even indispensable,4 it is not
somehow outside the scope of the criticisms of entrenchment that have
been made in other contexts. Indeed, federalism is a centrally
important instance of the phenomenon under debate, and I do not think
we can understand the phenomenon without attention to it. If, as I
think, entrenchment is legitimate with respect to rules of federation,
then that may tell us something about the legitimacy of the
entrenchment of rights.
Throughout I mean to treat the critique of entrenchment as a serious
and powerful set of arguments. For some years now I’ve suffered a bit
of bad conscience, knowing that I had no developed answer to that
critique—especially as it has been offered by Waldron—but being
unwilling to embrace it and all its implications. While this paper
flows from my interests in federalism, and not from a desire to
overcome that bad conscience, I hope that it will be a first step in
answering that critique. Accordingly, much of the paper is devoted to
showing that federalist entrenchment does come within the critique’s
terms, even though I ultimately mean to defend rather than to damn
such entrenchment. The paper will also be especially concerned with
Waldron’s critique of entrenchment, as I think it ties together most
of the themes in the “turn from the courts” literature more generally.
The concepts in play
“Constitutional entrenchment” admits of variation; even within a given
constitutional order, some provisions may be amendable by weaker
action than others. I’ll refer to any rule or provision as entrenched
which formally cannot be altered by the same rules as ordinary
legislation of the central government (i.e. parliamentary majorities,
with presidential acquiescence in presidential systems).5 Such
entrenchment can take the form of requiring amendment by legislative
supermajorities, by popular (majoritarian or supermajoritarian)
referenda, by the concurrence of center and provinces or of
legislature and electorate, or any combination of these. But it is
important to note that some entrenched provisions are avowedly
unamendable without discarding the constitutional order altogether,
such as the German Bill of Rights; and some are effectively so, such
as the rule guaranteeing equal representation for each state in the
United States Senate. Here I am not concerned with the differences
among levels of entrenchment, from slight-supermajoritarianism all the
way to supposed immutability.6
For purposes of this paper I will usually (but not always) elide one
other potentially important distinction concerning entrenchment:
between the entrenchment of a constitutional provision and its
enforceability by means of judicial review. That is, I will assume
that entrenchment and judicial enforcement do go together—whether the
enforcement is by a regular court or a specialized constitutional one,
whether it is retrospective or (as in France) prospective, and whether
the judiciary has the last word (prior to constitutional amendment) or
other actors may override the judiciary (as in the Canadian
notwithstanding clause). A constitution that is nominally entrenched
but declaratory in its effects—one that tries to provide a focal point
for public deliberation about matters of foundational importance but
that does not offer any institutional restraints on the central
legislature—falls outside the scope of this paper, even if that
declaratory constitution is entrenched in the sense of being difficult
or possible to amend. But, as we shall see, there are entrenched
constitutional provisions that are not merely declaratory but are also
not, in anything like the normal case, enforced by the judiciary.
The judicial override of legislative enactments does not exhaust the
actions that a constitution may authorize in its own defense, of
course. I take it that the core of constitutional entrenchment, indeed
the core of the link between constitutional rights and the judiciary,
is the defense of procedural, rule-of-law rights against executive
action. Habeas corpus is fundamental to the rule of law and thence to
constitutionalism. Judicial limits on legislatures represent a kind of
late extension by analogy of the core judicial-constitutional function
of ensuring that persons are only imprisoned and punished in
accordance with enacted, prospective, promulgated laws.7 But this kind
of thing is uncontroversial among the theorists with whom I am
concerned here; Waldron, whose skepticism of judicial review is
probably the most radical of the leading participants in the debate,
explicitly distinguishes between restraints on lawless executive
action and restraints on legislative lawmaking.8 By “constitutional
entrenchment” I refer only to the latter, taking the former for
granted.
The most obvious subject matter for federalist entrenchment in
particular is the division of powers, authority, and responsibilities
between the center and the provinces—which of them has jurisdiction
over what kind and scope of questions, when and whether authority is
shared concurrently between the provinces and the center, and so on.
In the United States, this is famously the stuff of commerce clause
jurisprudence, and the slight rejuvenation of federalist
constitutional enforcement under the Rehnquist Court centered on it.
But more fundamental is the entrenchment of the very existence of the
provinces—the question of whether the state is to be a federal one at
all—and the entrenchment of the identity, continuity, and borders of
the provinces. The formal allocation of authority is likely to be a
dead letter if the center can threaten to dissolve a recalcitrant
province, or to gerrymander it into a more-pliable shape, or to carve
it up or lump it in with a larger neighbor. Closely related is the
guarantee of the provinces’ self-governing autonomy from the
center—the guarantee that a province’s government will be chosen by
provincial elections and not by central appointment. (Again, the
formal allocation of authority can’t matter very much if the province
is governed by an apparatchik central appointee.) I’ll refer to the
division of powers and the guarantee that provinces have some
independent legislative authority under the rubric of provincial
autonomy, and the guarantee of provinces’ existence, their immunity to
gerrymandering, and so on as pertaining to their integrity.9
Integrity is routinely guaranteed in the constitutions of federations.
The usual rule is that no province may be dismembered, diminished, or
combined with another without its consent—sometimes provincial-popular
consent, sometimes provincial-legislative. Argentina, Austria, Canada,
Brazil, and the United States all have such a constitutional
provision. Germany’s provision is complex but its basic outline is
that changes to provincial boundaries require the consent by
referendum of both the populations of the whole states and the
populations of the affected territories. Even quasi-federal Spain
holds that changes to provincial boundaries cannot be made by ordinary
legislation, requiring instead an “organic law” that must be passed
with an absolute majority of the lower house. India is the outlier in
guaranteeing states no more than a “voice;” Parliament may alter state
boundaries with ordinary legislation. As far as I can tell no other
constitution usually thought of as federal allows such a thing. (India
is also an outlier in the weakness of its protection of autonomy, with
the possibility of state governments being dissolved by decree of the
central government.)
Conceptually quite distinct from either the allocation of regulatory
authority or the existence and integrity of the provinces are
questions of the provinces’ institutional participation in the
government of the center—the status of the German Bundesrat as the
direct representative of the governments of the Lander, the
province-based representation in the U.S., Australian, Argentine,
Mexican, or Spanish Senate, or the U.S. Electoral College, and so on.10
I also include in this category rules about general constitutional
amendment that depend on the provinces—three-fifths of state
legislatures, a majority of the voters in a majority of the states,
and the like. Sometimes constitutional amendments must first be
approved by a bicameral legislature where one chamber represents the
provinces in some form, and then are subject to approval by the
provinces themselves or by the electorate divided provincially, so the
provinces participate in amendment both separately and jointly at the
center. (American amendments must be passed by the state-based Senate
but then must also be ratified by the states severally.)
Such provincial participation in the center and in constitutional
amendment is ubiquitous; I’m not sure that any federation lacks it
entirely. It might be better understood as a mechanism for the
protection of federalism rather than as constitutive of federalism as
such.11 If the provinces have no independent legislative authority and
no guarantees of their own stable existence, then they are effectively
local governments in a unitary state; direct provincial participation
in the government of the center is not similarly constitutive of
federalism.12 It might well be necessary to the effective stability of
a federal constitutional order—if the provinces lack any share of a
governing say at the center, they may not be de facto able to protect
their de jure integrity and autonomy. Even if provincial participation
at the center is not analytically essential to federalism as such, I
will treat its constitutional entrenchment as part of the category
“federalist entrenchment.” Provincial integrity, autonomy, and
participation are all characteristically constitutionally guaranteed
in federations, which in turn make up a large share of constitutional
democracies in the world. Federalist entrenchment is a conspicuous
feature of entrenchment in general
Taken together, these forms of entrenchment distinguish federalism as
an intellectual category and constitutional phenomenon from other
forms of decentralization—that is, federalism in an important sense is
entrenchment, and if entrenchment is vulnerable to criticism then
federalism likely is as well.13
The critique(s) of entrenchment
Constitutional entrenchment in its current form dates to developments
in constitutional theory and practice in the American states in the
1770s and 80s. Fundamental charters and written statements of founding
laws were much older, as was a so-called “ancient” constitutionalism
which viewed the traditional and inherited fundamental laws of a
polity as binding on governors and beyond their ability to alter. But
the founding charters of the newly-independent American states were
recent creations, having none of the veneer of antiquity; and they
were typically created by the very legislatures they were meant to
authorize and legitimate. As Jefferson complained in the Notes on the
State of Virginia, they tried unsuccessfully to escape the reality and
rule that no legislature could bind its successor. Even the procedure
of supermajority rule for certain kinds of lawmaking was, if passed by
one legislature, vulnerable to repeal by a simple majority of its
successor. The innovations of constitutional conventions, outside the
legislature, to draft constitutions, and popular rather than
legislative ratification, seemed to solve these difficulties,
legitimating supermajority rules and binding constraints on
legislatures. When joined to the old but partly-inchoate institutional
idea that courts might enforce more fundamental laws against
legislative violations—that is, to institution of judicial review that
crystallized in the states in these decades—constitutional
entrenchment took on a roughly recognizable form. Some laws passed at
time 1 by a special procedure would be designated fundamental and
superior to ordinary legislation and executive action (and, so,
constraining of such legislation and action). This superiority would
authorize judges at time 2 to enforce the fundamental laws, as laws,
against other, illegal, government action. And these fundamental laws
could not be altered save by some combination of legislative
supermajorities and direct popular approval.
The key critiques of and complaints against constitutional
entrenchment are nearly as old as the phenomenon itself. It is
understood as antidemocratic and countermajoritarian; as representing
a kind of intergenerational tyranny; and as improperly empowering the
judiciary at the expense of the legislature. Note that the first and
third critiques are not identical. Madison was an advocate of
constitutional entrenchment on countermajoritarian grounds, but
opposed the tendency of judicial review to make the judiciary the
supreme interpreter of that entrenched constitution. One of the
critiques might be blunted with an elected judiciary, the other not;
one is blunted by the existence of a partially-non-majoritarian branch
of the legislature (e.g. the U.S. Senate), the other not. The two
critiques are, of course, related; in the final accounting Madison
never could reason out a way for the Constitution to constrain the
legislature that didn’t in effect mean that the courts could do so.14
But they are different in principle. The countermajoritarian critique
is incompatible with entrenched constitutionalism as such. Even if a
constitution could somehow be made self-enforcing, it would constrain
the choices made by democratic majorities. The same is not true for
the specific institutional critique of the judiciary.
Jefferson himself, insisting that “the dead have no rights,” held that
it was unjust for one generation to legislate over later ones. If few
have taken up his proposal that all laws (fundamental and otherwise)
by repealed and institutions restarted every generation, many more
have thought that subsequent generations ought to be free to reform,
undo, or repeal inherited rules if they wished. That one generation
could enact a rule that a majority of their grandchildren could not
repeal seemed to him, and has seemed to many since, a kind of tyranny.
Moreover, since constitutional entrenchment (more-or-less) necessarily
empowers judges at the expense of legislatures, it has been vulnerable
to attack as antidemocratic, antimajoritarian, and so on. Again, this
is an enduring complaint. Even Madison himself, though he embraced
entrenchment and was unable to solve the paradox of how the
constitution could be legally superior to legislation without giving
too much power to the judiciary, was never comfortable with that
power. Insofar as the judiciary was made up of ordinary human actors,
and was not the Constitution incarnate, constitutional entrenchment
seemed to yield judicial review which seemed to make the judiciary
superior to the legislature, “which can never be proper.”15
As noted above, after some decades in which the main debates in
constitutional theory about judicial review and entrenchment seemed to
concern how they might best be defended and construed, judicial review
has come under serious academic skepticism in the past several years.
Theorists and scholars including Jeremy Waldron, Mark Tushnet, Cass
Sunstein, and Adrian Vermeule have fleshed out and refined both the
countermajoritarian and the intergenerational critiques of
entrenchment. Waldron and Vermeule, for example, both stress the idea
of comparative institutional evaluation. They suggest that the
traditional case in favor of constitutional entrenchment with judicial
enforcement has come from a comparison of idealized judges with
legislatures that are viewed through much more gimlet eyes. A
putatively unacceptable legislative outcome is remembered or posited;
the punch line is assumed. “Surely you don’t think a legislature
should be allowed”—passive voice—“to do that?” But judges are just as
real, just as human, actors as legislators—and just as prone to
errors. Philosophers and legal theorists may imagine themselves as
Herculean judges, sure that they would reach better, more-right
answers on the one or two questions of most concern to them than the
real legislatures they see in the world. But judges have limited time,
limited information, limited moral knowledge, and limited virtue, just
like everyone else. Waldron stresses cases of moral judgment and
philosophical argument: rights, such as the right to freedom of
speech, have uncertain parameters and boundaries; they are the subject
of serious moral dispute among persons of good faith who believe in
the rights. Constitutional provisions about those rights are
surrounded by interpretive uncertainty, vagueness, or emptiness. Given
all of that, a five-out-of-nine majority of the U.S. Supreme Court has
no special claim to expertise or certainty compared with a majority of
democratically elected representatives offering a competing
interpretation of the right in question. Vermeule tends to stress
questions of technical knowledge and expertise, in which the issues
are less epistemic and more technocratic, but the upshot is more or
less the same: really-existing judges are poorly situated to
substitute their judgment for that of legislatures.
And, according to the critique of entrenchment, we must always
remember that it is judges, not the constitution, that will be
limiting the legislature. A constitution is not self-interpreting or
self-enforcing, and there is no way to make it so. This means that we
never face the abstract question: should it be unconstitutional for
legislatures to do X? but only the mundane question: would it be
better for judges to be able to decide, in the name of preventing X,
whether and when to block legislative action?
To all of this Waldron in particular adds a substantive normative
defense of democratic legislation and legislative decisionmaking. He
intends his comparative institutional evaluation to include a
comparison between ­best-case legislatures and judiciaries (whereas,
e.g., Vermeule is primarily concerned to compare really-existing
legislatures and judiciaries; they share a sense that Dworkin and his
intellectual kin have mainly compared best-case judiciaries with
really-existing legislatures). In particular, he argues that there is
something deeply normatively appropriate about democratic majorities
acting through their legislatures to decide contested questions of
rights and rights-interpretation. He stresses that this is not, as it
has traditionally been viewed, simply a capitulation to majority
tyranny and majoritarian deprivation of minority rights:
The point to remember here is that nothing tyrannical happens to me
merely by virtue of the fact that my opinion is not acted upon by a
community of which I am a member. Provided that the opinion that is
acted upon takes my interests properly into account along with
everyone else’s, the fact that my opinion did not prevail is not
itself a threat to my rights, or to my freedom, or to my well-being.
None of this changes necessarily if I am also a member of the topical
minority whose rights are at issue.
Instead, he suggests that the same image of individuals as autonomous
moral agents that underpins liberal rights theory also requires
respecting our fellow citizens as interpreters of rights—and so
respecting the legitimate claims of majorities of persons to settle
arguments about such interpretations. We will return to these points
below.
Federalism and the critiques
Federalist entrenchment in all its forms runs afoul of at least some
of the critiques.
Ruth Gavison, in one of the only articles to broaden the question of
constitutional entrenchment beyond questions of individual rights,
holds that
“Only unitary states have the luxury (or burden) of debating the
question whether governmental structure should be included in the
constitution. All states must have provisions regulating these
subjects, but in unitary states these may evolve, and be enforced in
part as constitutional conventions. This is precisely what has
happened in England, and Dicey is still a powerful spokesperson for
the desirability of this way of regulating the structure of
government. However, federal governments cannot make this choice,
since it is a central issue of such governments that the division of
powers between sub-units and the central government is determined in a
way that will be beyond the unilateral change of either states or the
central government.[…] If the state is a federal one – the relations
between central and local government must be made in a formal
constitution, which cannot be changed unilaterally by the member
parts.”16
Now Gavison is not obviously right about the relationship between
federalism and written constitutions. If relations among various
branches of a single government can be regulated by evolving,
unwritten, constitutional customs and conventions with occasional acts
of legislation—as has been the case for relations among Commons,
Lords, cabinet, and Crown in Britain—then relations between a center
and provinces might well be regulated the same way. Indeed, Great
Britain itself has never been quite the simple undifferentiated
unitary state imagined by Dicey even before the recent decentralizing
reforms.17 Unwritten or unentrenched constitutional norms governed
Anglo-Scottish relations before the Act of Union; such norms plus the
Act itself governed the continuing constitutional differences between
England and Scotland (in their legal systems, established churches,
banking and university laws, and so on) afterward; and the
relationship of Ireland to Westminster was always complicated but
hardly ever simply that of being part of the territory of a unitary
state governed by a unitary legislature. (And this is to say nothing
of even-more-complex cases such as the Channel Islands.)
Constitutional divisions of power between center and provinces
predated written constitutions throughout Europe; and if the so-called
“ancient” constitutions of France and Spain more or less collapsed
into de facto unitary state even before the Revolution, the Holy Roman
Empire endured as a kind of federation without a modern written
constitution for centuries, and the Dutch and Swiss confederations had
written treaties at their foundings but were partly governed by
unwritten constitutions thereafter.
In the modern world, so few states lack written constitutions that it
is difficult to get any traction on the question of what can and what
cannot happen under an unwritten-constitutional order. Every modern
democratic federation has a written constitution; but so does every
modern democratic state besides the U.K. and Israel. Every modern
democratic federation has an entrenched constitution, but so does
every modern democratic state besides the U.K., Israel, and New
Zealand. Given Britain’s unique institutional continuity and Israel’s
and New Zealand’s tiny sizes, I doubt that we can safely generalize
about the conditions that would allow a modern liberal democracy to
persist without a written or entrenched constitution. The question of
federalist entrenchment cannot be short-circuited so easily.
Gavison moreover tries to treat institutional entrenchment generally
as outside the scope of the debate.
“It is important to note that, in distinction with the situation
concerning rights and credos, there is no serious argument against
judicial review of the ‘institutional’ part of constitutions. This
consensus is based on the fact that the provisions of the constitution
in these matters are relatively clear, and that there is a necessity
that there will be an authoritative arbiter of the disputes that do
arise.” (93)
But this won’t do either. There is and has been tremendously serious
argument against judicial policing of the institutional boundaries
between the legislature and the executive in the United States, and
the judiciary itself has often been extremely reluctant to act as that
authoritative arbiter. (The “provisions in the constitution in these
matters” are anything but “relatively clear”!) More appositely, the
question of whether the American federal judiciary could police the
allocation of authority between the center and the states has been a
terribly vexed one in American constitutional history; until the
Warren Court’s rights revolution, it was the core of debates about
judicial review. Since 1937 the dominant view has been that it is
better for Congress to unilaterally decide what lies within the scope
of its power to regulate interstate commerce and what lies outside of
it than for the courts to do so. That this doctrine’s edges were
nibbled a bit by the Rehnquist Court does not change its real force.
In Raich v. Ashcroft, the question at stake was not really whether the
non-commercial growth of marijuana for intrastate personal use
qualified as “interstate commerce,” but rather whether it lay within
Congress’ authority to decide whether it so qualified. The Supreme
Court opted for deference to Congressional authority, which is to say
that it declined to genuinely review the question of whether the
boundary around “interstate commerce” had been crossed or not. The
“authoritative arbiter” remains Congress, judging in its own case
about how far its power extends and how little legislative autonomy is
left to the states.18
It seems to me that we are left with no choice but to agree with
Waldron’s suggestion on this point:
“[M]any of the challenges to rights-oriented judicial review can be
posed to other forms of constitutional review as well. In recent
years, for example, the Supreme Court of the United States has struck
down a number of statutes because they conflict with the Supreme
Court’s vision of federalism. Now, everyone concedes that the country
is governed on a quite different basis so far as the relation between
state and central government is concerned than it was at the end of
the eighteenth century, when most of the constitutional text was
ratified, or in the middle of the nineteenth century, when the text on
federal structure was last modified to any substantial extent. But
opinions differ as to what the new basis of state/federal relations
should be. The text of the Constitution does not settle that matter.
So it is settled instead by voting among Justices—some voting for one
conception of federalism (which they then read into the Constitution),
the others for another, and whichever side has the most votes on the
Court prevails. It is not clear that this is an appropriate basis for
the settlement of structural terms of association among a free and
democratic people.” (2006: 1357)
Moreover, the entrenchment of the autonomy and the integrity of
provinces both carry important costs above and beyond those associated
with the entrenchment of rights. That is, federalist entrenchment may
stand in greater need of justificatory work than the entrenchment of
rights, not lesser. The wide variety of public goods, regulations, and
policies would seemingly be most efficiently provided by
similarly-various levels of government. And social, economic, and
technological change over time probably changes the level at which
some policies are most-efficiently provided. Provincial boundaries
often fail to match up with either economic regions such as
metropolitan areas or environmental ones such as watersheds; in both
cases the best policy-fitting region may include parts of several
provinces but not all of any province. Federalist entrenchment picks
out provincial units that may not be the right size for any
particularly important kind of policy, and grants them constitutional
status which is denied to, e.g., cities, counties, metropolitan
regions, and watersheds. Entrenchment moreover freezes a particular
allocation of authority between provinces and the center that may well
become inappropriate as time goes on. The alternative to federalist
entrenchment, in short, need not be unitary centralized government; it
might be decentralized government with more flexibility about what
levels of government performs which functions when.
The difficulties involved might greatly exceed fiscal or regulatory
inefficiency. As the cliché has it, the oak that does not bend may
break, whereas the willow’s lack of rigidity can prove to be a
strength. Consider the attempts to stave off constitutional crisis in
Canada by the Charlottetown and Meech Lake Accords—what Michael
Lusztig has called the “constitutional paralysis” of the Canadian
federation.19 The status quo is sufficiently entrenched that it seems
impossible to reform the constitutional order in ways that would make
it more palatable to Quebec. The final 1992 breakdown of reform
efforts that would recognize Quebec as a “distinct society” and
formalize asymmetric federalism came within a hair’s breadth of
prompting Quebecois secession in 1995. If entrenchment offers certain
kinds of guarantees and stability, it by the same token yields
inflexibility. We have seen that some federalist entrenchment, such as
the allocation of authority between provinces and the center, is prone
to the same interpretive difficulties as the entrenchment of rights.
But those federalist rules that aren’t prone to interpretive
uncertainty may entrench procedures, institutions, and distributions
of power and authority that eventually become unacceptable to some
province(s) that have the capacity to break the state but that are not
effectively reformable—a set of risks not ordinarily associated with
the entrenchment of rights.
On the other hand, there is a sense in which federalist entrenchment
seems less vulnerable to democratic or majoritarian objections than
does the entrenchment of substantive rights. The entrenchment of
provincial integrity and autonomy, at least, act as guarantors of
provincial democratic or majoritarian authority. They may empower the
judiciary to act against a national legislature when it, e.g., wishes
to dismember a province or legislate on a matter reserved to the
provinces; but they do so in order to leave the provincial demos/
government/ legislature with the final say. In the case of judicial
enforcement of substantive rights, it appears to be the judiciary that
retains the final say on what the government may do; federalist
entrenchment requires only that the judiciary referee the boundary
between provincial and central elected governments. And so, for
example, Melissa Schwartzberg’s defense of the educative virtues of
democratic decisionmaking about fundamental questions does not
decisively tell against federalist entrenchment.
The entrenchment of provincial participation at the center does run
afoul of democratic objections; indeed, perhaps the most
non-majoritarian feature of national governments in many federations
is the equal representation of each province in one chamber of the
central legislature. Moreover, many have thought that the defenses of
autonomy and integrity were also undemocratic. In this, though, they
were mistaken; they relied on a typically unargued-for Rousseauian
premise that the national-level demos was the true one that had an
authentic democratic will, while the peoples of the several provinces
were somehow less democratically real. The idea that a national-level
people has an authentic pre-institutional will. The difficulties with
assuming an authentic democratic will that precedes and exists outside
of institutional forms and procedures will come up again in the next
section.
Constitutions, procedures, and institutions
Constitutional entrenchment has often been defended as a kind of
precommitment strategy: the people, like Ulysses, bind themselves (or
rather “itself;” conceiving of the people as a corporate actor matters
for the coherence of the view) against a predictable future
temptation, passion, or weakness of will. Precommitment views are
meant to be relatively immune to the charge of countermajoritarianism
or anti-democracy, since the constitutional constraint is both
self-imposed (the constitution being democratically enacted) and
autonomy-enhancing rather than autonomy-limiting (the principle being
the more fundamental popular will than the exception). Waldron,
unsurprisingly, dismisses all versions of precommitment defenses of
entrenchment.20 Some of his critiques are well-taken; the people don’t
make up a unified actor at the time of the enactment of the principle;
later disagreements about interpreting the principle may well be
good-faith arguments, not evidence of panic or weakness of will; a
majority vote of a judicial body is not obviously more capable than a
majority vote of a legislative body of correctly divining the meaning
behind the original restraint; and a constitutional restraint can’t
meaningfully be understood as “self-“imposed à la Ulysses and the
Sirens when it binds later generations.
Waldron distinguishes between precommitment mechanisms that rely on
external causal mechanisms—say, Ulysses handcuffs himself and throws
the key overboard—and those that rely on the judgment of another
actor, such as Ulysses’ crew. I might purchase a mechanism that
disables my car from starting if my breath reveals excessive alcohol
consumption; or I might give my keys to a trusted friend. Waldron
notes the obvious disadvantage of mechanical models: they do not admit
of exceptions. (It might be better to drive while slightly drunk than
to refrain from driving a sick child to the hospital.) He continues:
“Clearly, if constitutional constraints are regarded as forms of
democratic precommitment, they operate more on the model of the
friend’s judgment than on the model of a causal mechanism. Except in
rare cases (like ‘dual key’ controls of nuclear weapons)
constitutional constraints do not operate mechanically, but work
instead by vesting a power of decision in some person or body of
persons (a court), whose job it is to determine as a matter of
judgment whether conduct that is contemplated (say, by the
legislature) at t2 violates a constraint adopted at t1.” (LD 261-2)
This is revealingly wrong.
The disadvantages of mechanistic precommitment strategies are matched
by an advantage: they are very reliable. If they guarantee that there
will sometimes be Type 2 errors (false negatives, times when an action
is disallowed that should be allowed), they also guarantee that there
will be no Type 1 errors (false positives, when an action is allowed
that should be disallowed). Which is preferable, and whether either is
preferable to refraining from precommitment, is entirely dependent on
the probability, frequency, and consequences of these errors, not on
any a priori rule. For any heavy drinker who does not, e.g., have a
child in the house who has a condition that predictably and regularly
needs life-saving emergency room treatment, I suspect that the
breathalyzer in the steering wheel is a much better precommitment
strategy than giving keys to friends who might themselves get drunk,
or who might be susceptible to persuasion, emotional blackmail
(Ulysses’ curses and threats), or even drunken violence to give keys
back. Trusted friends may make mistakes in judgment; they may also be
prevailed upon to relax their vigilance, one way or another. So far
this seems to tell in favor of Waldron’s broader argument; if the
demos really were like a passionate drunk, willing and able to run
roughshod over minorities, then it might also be willing and able to
run roughshod over the judiciary or the constitution.21 For
judgment-based precommitment to be a sound strategy, a principal (P)
at t1 must have reason to think both that the agent’s (A) judgment at
t2 will be much better, by P’s own t1-lights, than P’s; and that the
reasons for P’s impaired judgment at t2 aren’t so likely to lead P to
induce A to give over as to neutralize the advantage in judgment.
But if mechanical precommitments can be found, then the quality of
decisions might rise. True, there will be few cases in law or politics
that are strictly mechanical, on analogy with handcuffs and keys
thrown into the ocean. But there are plenty of such cases in which the
constraint operating at t2 is not merely some agent with
temporarily-better judgment on the merits of the question. The U.S.
Constitution prohibits expenditures for a standing army more than two
years in advance—this is a precommitment.22 It denies to future
Congresses the ability to do something that they might deem preferable
on the merits when the time comes. And while one could imagine a case
being litigated, that litigation would not just be a request for
judges to decide whether a longer-term appropriation was desirable on
the merits.
Waldron’s focus on bill of rights-style cases has misled him here.
Most constitutional rules aim to improve decsionmaking relatively
mechanically, not through mere agent-substitution. Agent-substitution
asks someone else to decide the merits of the contested question;
relatively mechanical solutions aim to alter the question,
procedurally avoid it, or make some outcomes rather than others more
likely by giving actors with predictably different interests or
opinions some power over it. The rule against long-term military
appropriations prejudges particular disagreements, substituting
relatively mechanical questions (two years or less? Standing army?)
for the substantive one. If other agents are called in, it is to
settle the mechanical questions, not the substantive ones; and for the
most part other agents aren’t called in at all.
This is all done because the outcomes of some kinds of errors are
considered worse than the outcomes of others, or because some errors
are deemed likelier than others, or some combination of these. In this
case, rather than encouraging legislators to decide the merits of the
question each time, the constitutional designers opted to fend off the
risk of a legislature mistakenly authorizing a permanent standing army
under the control of a no-longer-accountable executive. That increases
the risk of some other kinds of errors, of course—perhaps not only the
risk of under-funding, but also the risk of misallocations of funding
because some military allocations are made inefficiently frequently.
Elsewhere Waldron critiques this kind of outcome-oriented
constitutional design as well.
“But a citizenry who disagree about what would count as the right
results are not in a position to construct their constitution on this
basis… Using a result-driven approach, different citizens will seek to
design the constitution on a different basis.” (LD 294)
This, it seems to me, proves too much—perhaps vastly too much. Its
intuitive power is blunted by all of our experience of institutional
and constitutional design. We cannot get very far in designing any
decision-making procedures, democratic or otherwise, with no reference
to results. Arguments about procedural fairness as such run out much
too quickly, and anyway seem insufficient. Constitutional designers
and ratifiers have, and perceive themselves to have, some level of
Weberian responsibility for attention to consequences. They want to
create institutions that will enable a state to defend itself
effectively without being dominated by its own military, for
instance—a pair of concerns that runs right through The Federalist.
Waldron means to rule out, e.g., the libertarian move of assuming that
the common-law baseline of contract and property law is basically just
and efficient, and therefore proposing procedures that simply slow and
impede legislation in a general way in order to prevent economic
regulation. This, he thinks, violates respect for other persons as
rights-interpreters, or as bearers of the Arendtian “right to have
rights.” We disagree about what rights persons as owners and
contractors and consumers and producers have; and that disagreement is
the stuff of politics among persons who have the right to argue and
interpret questions about rights. And surely there is something
correct here. Procedures meant to help us manage our disagreements
should not beg the question and take a side in those disagreements.
When we have agreed to flip a coin to settle a question, if I were to
call heads and then say, “let’s use my weighted coin; it comes up
heads 60% of the time, and my view is right,” I would have missed the
point of the procedure. It can’t be a good reason to adopt an
electoral rule that it would help one’s preferred party.23
But there that can’t be all there is to say. Shared political life
isn’t like coin-flips all the way down. Even in the face of good-faith
disagreement about ends, institutions are designed with an eye toward
the ends they will promote as a matter of course. We try to avoid
designing them to get particular outcomes in particular cases; but we
choose electoral rules to promote two-party stability or multiparty
representativeness; judicial rules to promote accuracy or
overprotecting the innocent; faculty hiring rules to encourage rapid
hiring or waiting for ideal candidates or reinforcing expertise or
building breadth. And we do so knowing that we will not only disagree
about particular cases but that we also disagree about the balances
between or among these various considerations.
To put it a different way, in the face of disagreement about
particular cases, and disagreement about the reasons for deciding
cases in general, we do not simply adopt the decision rule to decide
each case one at a time, or to re-argue the reasons each time. We do
some of each of those things; the procedures we adopt are not carved
in stone, and they come under pressure when they seem to generate a
sufficient number of wrong outcomes. But we also devise rules to keep
any number of questions from being considered, and other rules that
tend to favor one or another of the contested reasons. We overweight
the avoidance of some kinds of mistakes that we (or a majority of us
at the time of rules-adoption) consider more serious, or harder to
undo, or more likely to engender further mistakes in the future.
In constitutional theory about entrenchment and judicial review, it
may be that no line between substance and procedure will be
particularly stable, because procedures are adopted in order to
advance substantive outcomes; our proceduralist commitments themselves
will always be underdeterminate with respect to the shape of
institutions. The line could only be stable if one believed in a
preinstitutional Rousseauian general will, which Waldron (rightly)
does not. Otherwise the democratic will is always in part a product of
procedures, not something neutrally or transparently transmitted
through them. So we will always have process-defining constitutional
provisions (legislatures cannot bootstrap their own legitimacy), and
the choice among them will, at least very often, be driven by
substantive ends. While Waldron doesn’t need the same
substance-procedure distinction that, for example, John Hart Ely
does—he does not think that substantive and procedural rights fall
into different categories—he does need a fairly stable distinction in
order to defend the purity of his democratic-legislative procedures
from smuggled-in substantive ends. Once it is thought legitimate to
frame procedures with an eye on their substantive outcomes,
overweighting against some kinds of errors and not others, then it
seems that the freedom of majorities to interpret contested
rights-claims free from interference by other agents is no trump.
Federalism as precommitment and substantive procedure
Federalist entrenchment offers the sort of institutional rules
described in the last section. Assuming that we may elide the
distinction between the people as constitutional enacters and the
later legislative representatives of later people, it is a kind of
precommitment—not a precommitment to avoid madness or drunkenness or
running a ship aground on the rocks or any of the traditionally
colorful metaphors invoked to make precommitment an opposition between
reason and unreason, but a relatively mechanical set of decision
rules, adopted to affect the likelihood of some outcomes rather than
others. Federalist entrenchment prevents later state-wide majorities
from making certain kinds of changes to the decentralization of the
society’s governing institutions. It weights the prevention of excess
centralization more heavily than it weights the risk that needed
centralization will be resisted.24
Why not allow the central legislature to decide for itself, on an
ongoing basis, how much decentralization is needed, and where the
boundaries should lie?25 I think that part of the answer lies in path
dependence. To a substantial extent Waldron and Vermeule alike treat
fundamental political decisions as independent from each other; one
decision one year, another the next. The same is true, e.g., of
Schwartzberg’s emphasis on the learning that can come from a
democracy’s correction of its own errors.
Errors are inevitable, but that is true no matter what we do, so
pointing to legislative errors is no reason to limit legislative
authority. But in some areas of political life it’s unlikely that
serial decisions can be wholly or even mostly independent of one
another—the precommitment to avoid long-term military expenditures
rests on the thought that an error in one direction (too much funding
of too strong an army under too unconstrained an executive) might have
long-term institutional consequences that make it uncorrectable.
If federalist entrenchment guards against errors that are less
dramatic, it is nonetheless similar in kind. It rests on the thought
that the inevitability of error in deciding the details of
decentralization is not good enough reason to leave such decisions up
to new case-by-case decision every time. Some decisions would have
long-term consequences making themselves difficult to correct; and
some kinds of errors are more likely than others. Some degree of
decentralization is desirable, but unconstrained central legislatures
may well decentralize too little. And if they do, the error will
snowball, in the face of the powerful tendencies in modern states
toward centralization. To identify just a few reasons for this:
1.
the center, as the usual site for armed service and wartime
loyalty, tends to attract a permanent degree of political
attachment from those who have served in the military and periodic
increases in attachment during wars and international crises,
undermining the energy and enthusiasm citizens have for
maintaining the potentially-oppositional provinces;
2.
the center’s typically greater command of resources give it the
ability to coopt or corrupt provincial officials, or simply to
undermine their policy autonomy with selective expenditures;
3.
the center’s (ex hypothesi) unconstrained ability to alter the
boundaries of or abolish provinces both leaves the provinces as
too unstable to engender citizen loyalty and as vulnerable to
manipulation by temporary national majorities, jeopardizing the
ability of the provinces to remain oppositional. In short, the
absence of federalist entrenchment risks making decentralized
levels of government partisan playthings on the model of
Congressional districts in many U.S. states.
Waldron has for years offered a critique of the “I expect you’d like
to know what I would do if I were a philosopher king or a Supreme
Court justice” mindset of political philosophy.26 The critique is a
powerful one—more powerful, I think, that he recognizes. There is a
parallel critique to be leveled at the idealization of uniformity and
fixity in legislation; the legislature like the philosopher may show
an unhealthy impatience for letting things unfold over time, and may
suffer from a hubristic sense of having all the answers already in
hand. Of course, judges may suffer from this error, too—this is what
ties Waldron’s methodological critique of much applied normative
political philosophy to his critiques of Dworkin and of judicial
review. But federalist entrenchment only empowers judges at a couple
degrees of remove.
In the first instance it tends to empower provincial legislatures,
allowing both for the operation of a jurisdictional competition that
can operate as a market-like discovery procedure for best policies,
and for a peaceful coexistence of disagreeing political groups without
always requiring that disagreements be settled by unified majority
opinion. Philosophers may presume too much when they think that they
can settle deeply contested questions of rights and justice in ways
that should be binding on societies filled with Arendtian
rights-bearers. But the representatives of those rights-bearers may
presume too much, too; they may be too impatient of disagreement or of
the time required for jurisdictional competition to result in
discoveries. The wisdom of the multitude27 that Waldron contrasts to
the hubris of the judge is not found only in large numbers of voters
reaching one-off decisions. It may also be found in processes.28 And,
when we compare the institutional option of a uniform central
all-powerful legislature with the institutional option of legal
competition, rather than with the institutional option of an
all-powerful judiciary, we see that virtues Waldron claims for
democratic processes may be found in other processes as well. And
federalist entrenchment may protect these processes.
It may be particularly desirable in the frequent case of ethnocultural
federalism.29 There is a deep consistency between Waldron’s democratic
critique of constitutionalism on one hand and his critique of
multiculturalism, special consideration for indigenous peoples, and
treaties on the other.30 Indeed I think they are two strands of an
argument that Waldron had formulated almost twenty years ago, with his
“Rights and Majorities: Rousseau Revisited,” an argument that
majoritarian decision-making was fully compatible with respect for the
moral rights of minorities, and that what had traditionally been
viewed as entrenchments of minority rights should be re-understood as
claims for excessive minoritarian decision-making power over what all
will do. In addition to a defense of majoritarianism, the two strands
share a present-and-future orientation. Decisions about how we are to
live are decisions we must make, now, and the dead have no rights to
control them, whether through the Constitution of the United States or
the Treaty of Waitangi or the original act of federation between
Quebec and Ontario. We should make them (at least mainly) with respect
to the rights and interests of those living now and those to come, not
with respect to either the agreements reached or the injustices
committed by our ancestors.31
But in cases of ethnocultural divisions between majorities and
minorities, errors on the part of majoritarian procedures may be both
especially likely and especially difficult to reverse. To think this
we need not think that majorities are intentionally rapacious or
bigoted or vicious, or that minorities have as a matter of moral or
constitutional fact the rights that they think they have—the views of
“majority tyranny” that Waldron has disputed so vigorously. We need
only think that majorities are prone to ordinary kinds of mistakes for
ordinary reasons: they know their own circumstances best and
generalize from them, their opinions about hard moral questions are
subtly influenced by their interests, and so on. The mistakes
majorities can make in ethnoculturally divided are moreover especially
likely to spiral and snowball—a bit of unjust assimilation makes
living in the minority language that much less appealing to the
younger generation than it would have been, a bit of excessive
centralization of decisionmaking authority undermines the political
institutions and authority that the minority might have used to check
the next bit of excessive centralization, a bit of policymaking that
privileges majority interests a bit too much alienates and radicalizes
the minority and hardens distrust between the two groups. I think that
all of this is related to the fact that almost every peaceful and
stable multinational democracy is federal to some substantial degree;
federalism is surely not sufficient for multinational democratic
coexistence, but may be necessary, because where it is absent the
majority tends to centralize decisionmaking in a way that is
self-reinforcing and eventually makes things more or less intolerable
for the minority.
The category of “relatively mechanical” entrenchment is a deliberately
broad one. In the case of federalist entrenchment, provincial
participation at the center is very mechanical. Provinces are given a
kind of corporate political power; electorates are organized in
provincially-centered ways. I suppose that the guarantee of state
equality in the Senate is justiceable, as is the existence of the
Electoral College—if Congress purported to alter either by ordinary
legislation, I suppose that courts would intervene. But the scope for
interpretive uncertainty is so limited that it’s hard to imagine
Congress trying to do that—short of a moment of revolutionary
constitutional politics in which the federal courts’ say-so would
probably not much matter. The entrenchment of provincial autonomy is
also very mechanical, admitting of very little interpretive
uncertainty and therefore inviting very little judicial oversight.
There is uncertainty, again, in revolutionary moments—as in the
revolutionary secession of West Virginia from the
revolutionarily-secessionist Virginia. In general, however, the rule
is so mechanical as to shape the political framework and the
expectations of political actors, and not to become an object of
interpretive contention within politics. These very mechanical
entrenchments are successful precommitments. If they are normatively
justified at all, then it is justified to entrench them, not to
prevent drunken or Ulysses-like majorities from overriding them in
fits of passion, but to prevent the basic rules of politics from
constantly being renegotiated or re-gamed. The example of American
Congressional gerrymandering—once every decade, whichever party
happens to be in control of a state’s government shamelessly grabs for
a maximally large share of that state’s Congressional
representation—as to remind us of the virtues of even an arbitrary
stability.
The entrenchment of provincial autonomy32 is only relatively
mechanical. What is entrenched is not a procedure or an institution,
but a rule about what particular institutions may or may not do. It is
more like the prohibition on multiyear defense spending than it is
like the existence of state-based representation in the Senate—there
is the potential for interpretive uncertainty about what qualifies as
an expenditure on the armed forces or as interstate commerce.
Guarantees of autonomy remain, however, relatively mechanical. They do
not involve direct dispute over the morally best law or policy. They
redirect interpretive dispute from what should be decided to who
should decide; and they overtly reject any philosopher-king model.
(Autonomous provinces will adopt different laws and policies from one
another, so rules will differ depending on which side of an arbitrary
invisible line one stands on—hardly something a philosopher-king would
prescribe.) And, to the degree that they aim to prevent
overcentralization like the rule against perpetual defense spending
aims to prevent overmilitarization, they clearly do so by
approximation. While the judiciary has some role to perform, it is
quite unlike the role of the friend with the car keys.
Contingency and entrenchmemt
I have said much that involves “may” and “might” and contingent and
empirical matters, of course. I do not say that federalist
entrenchment is always constitutionally desirable all things
considered—a silly claim anyways, since federalist entrenchment admits
of so much variation that all the possibilities can’t simultaneously
be good ideas. I mean only to suggest that these are the kinds of
considerations that encourage people to adopt decision rules that are
not neutral among outcomes, even in the face of disagreement. If they
are sociologically plausible in a given society, then some degree of
federalist entrenchment may well be desirable.
Citizens of democratic societies will disagree with one another at
almost every level of generality; it has been one of the strengths of
Waldron’s work to rive this point home. Our disagreement about
conceptions of the good cannot be end-run around by imagining
agreement about principles of right; we disagree about those
principles, and about their interpretations and meanings even when we
think we agree on the principles. We will disagree about what good
policies are, about what level of government should decide policies,
and about how flexible we should be on both those questions.
Constitutional entrenchment cannot be legitimated by imagining
universal agreement on procedures or decision rules, any more than by
imagining such consensus on rights.
But it does not follow that we may not enact decision rules, that we
may not make predictions about our own or our successors’ errors and
try to stave them off. Decisions in politics are often not independent
of previous decisions; it would be foolish to insist that in
institutional design we pretend that they are. Forestalling especially
serious or likely or irreversible errors, including the errors of
foreclosing future discoveries, is the kind of thing that people do in
institutional design even in the face of disagreement. Forestalling
military dictatorship, or the shutdown of the policy discovery process
provided by jurisdictional competition, or the elimination of dissent
by temporary majorities or executives—these are moves that can be
defended even in the knowledge that they guarantee some kinds of
errors, and even in the knowledge that the agents they empower—such as
judges, but also such as provinces—are not free from error themselves.
I close with a tentative thought about the implications of this
argument for Waldron’s critique of constitutional entrenchment more
generally. The distinction I have drawn between relatively mechanical
entrenchment and substantive entrenchment seems to leave Waldron’s
critique of the latter intact. I doubt that matters are quite so
simple. What I have defended is, in part, entrenchment as
approximation. I think that the model of the Herculean judge aiming at
morally right answers in each case has had a deforming effect on
Waldron’s theory. He diagnoses the insult to democratic electorates in
being told that, on basic questions of constitutional values, a
majority of five out of nine has profound moral and interpretive
insight that trumps the majority of 150 million plus one out of 300
million. But perhaps even substantive constitutional provisions can be
understood as compatible with the foreknowledge of error. An
judicially enforceably-entrenched rights provision might have as wide
a range of errors around it as constitutionally unguided
legislation—but the midpoint of those errors could be located in a
different place. A democratic majority in a constitutional moment need
not think that it will be mad or drunk in the future to think that
fixing an approximate spot around which errors will fluctuate will
better serve its strongest political values or protect its compromises
and settlements. Fixing that spot does not always give the judiciary
final supervision over it, and the turn to consideration of other
actors than courts as constitutional interpreters has been a salutary
one.33 But if the choice is between judicial supervision and an
unmoored provision that risks becoming merely hortatory because it
depends for its interpretation on precisely the political actors it
would have to constrain, then judicial authority need not be a
self-insulting choice for the constitutional enactors to make.
1 Tomlinson Professor of Political Theory, McGill University,
[email protected] . Preliminary draft; comments very welcome.
2 Cass Sunstein, One Case At A Time, Cambridge: Harvard University
Press, 1999; Mark Tushnet, Taking the Constitution Away from the
Courts, Princeton: Princeton University Press, 2000. See also Larry
Kramer, The People Themselves, Oxford: Oxford University Press, 2005.
3 See, inter alia, Waldron, “A Right-Based Critique of Constitutional
Rights,” Oxford Journal of Legal Studies, Vol. 13, No. 1. (Spring,
1993), pp. 18-51; Law and Disagreement, Oxford University Press, 1999;
"The Core of the Case Against Judicial Review," 115 Yale Law Journal
1346 (2006). As an aside, it seems to me that part of what makes
Waldron’s challenge such a powerful one is that he has taken what is
perhaps the most important jurisprudential theory of this generation,
Joseph Raz’s analysis of legal authority, and done what Raz has never
convincingly managed: joined the jurisprudential theory to a normative
political theory.
4 I have developed my positive account of federalism and entrenchment
in: “Federalism, Liberalism, and the Separation of Loyalties,” 101(3)
American Political Science Review, August 459-77, 2007; “Federalism
and the Old and New Liberalisms,” 24(1) Social Philosophy and Policy
306-26, 2007; "National Minorities Without Nationalism," in Alain
Dieckhoff, ed., The Politics of Belonging: Nationalism, Liberalism,
and Pluralism, Rowman & Littlefield 2004; "Indigenous
self-government," in Nomos XLV: Secession and Self-Determination,
Stephen Macedo and Allen Buchanan, eds., New York: New York University
Press, 2003; and "Literacy, Language Rights, and the Modern State," in
Will Kymlicka and Alan Patten, eds., Language Rights and Political
Theory, Oxford University Press 2003. I examine some consequences of
decentralization without entrenchment in “Three Perversities of Indian
Law,” .forthcoming, Texas Review of Law and Politics, and
“Self-determination, non-domination, and federalism,” forthcoming,
Hypatia (both available on SSRN). The present paper is one of two
planned to defend the theory developed across these papers against two
lines of criticism—the critique of constitutional entrenchment in this
case, and the charge that the theory requires violations of the
publicity principle in the other.
5 Without trying to formalize the distinction, I’ll note that the
assumption is that the entrenched rule is more difficult to meet than
that governing ordinary legislation—that is, what Adrian Vermeule
refers to as “submajority rules” are not included in the category.
Vermeule, Mechanisms of Democracy.
6 Melissa Schwartzberg’s recent rich study Democracy and Legal Change,
Cambridge: Cambridge University Press, 2007, is centrally concerned
with such cases of unamendability or “immutability”. Accordingly, her
only extensive discussion of federalist entrenchment comes in the
context of the guarantee that states’ equality of representation in
the Senate cannot be altered without their consent. She means for her
critique of immutability to have implications for more general cases
of constitutional entrenchment—since, for example, she criticizes
immutability for moving the locus of legal change from the democratic
legislature into the judiciary and she praises the educational and
deliberative benefits of a citizenry’s awareness that it can remake
the laws, both of which are normative positions that apply to
questions of constitutional entrenchment in general. But not all of
her critiques spill over past immutability in that way, and she leaves
open the possibility that, e.g., some forms of supermajoritarian
requirements for constitutional amendment are compatible with her
argument.
7 See, of course, Lon Fuller, The Morality of Law. See also: George
Kateb, “Remarks on the Procedures of Constitutional Democracy,” in The
Inner Ocean, Ithaca: Cornell University Press, 1994; Judith Shklar,
“Political Theory and the Rule of Law,” in Shklar, Political Thought
and Political Thinkers, Chicago: University of Chicago Press;
Montesquieu, The Spirit of the Laws.
8 Waldron, “Torture and Positive Law,” Columbia Law Review
9 “Autonomy” and “integrity” are both terribly loaded concepts when
discussing natural persons and their freedom or identity. I don’t mean
to import any of the baggage from those discussions; here the terms
are merely shorthand.
10 While the U.S. Senate obviously represents by states, it is
sometimes overlooked that the U.S. House does as well. The House does
not represent population, but states on the basis of population, with
each state, no matter how small, guaranteed one representative, and
only whole numbers available. An American population of c. 298,000,000
divided by 435 representatives yields about one representative per
685,000 constituents. But Wyoming has one representative for its
roughly 500,000 people, whereas Montana has one for more than 900,000.
11 See Herbert Wechsler, “The Political Safeguards of Federalism: The
Role of the States in the Composition and Selection of the National
Government.” Columbia Law Review 54:543—560 (1954).
12 Here , as in many places in my work on federalism, I find that I
have independently reached a conclusion that Jenna Bednar had reached
sooner and developed more in greater empirical depth. Bednar treats
“geopolitical division, independence, and direct governance [the
ability of both the center and the provinces to legislate over their
constituents directly],” and the entrenchment of these, as
constitutive of federalism, but not “inter-level appointment.” See
Chapter 1 of her forthcoming book, The Robust Federation, Cambridge
University Press, 2008. On the general topic of this paper, see
Bednar, “Federalism, Judicial Independence, and the Power of
Precedent,” http://www-personal.umich.edu/~jbednar/WIP/precedent.pdf .
13
14 Madison had proposed in the Convention that Congress as such review
state laws for their constitutionality, and that Congress’ own
legislation be reviewed by a Council of Revision that drew on the
executive branch and the federal bench—in effect combining the
subsequent functions of presidential veto and judicial review. But in
the Constitution as actually enacted, while in 1788 he famously
expressed the thought that judicial supremacy over the other branches
could “never be proper,” he came to understand that the joint
operation of the articles declaring “the articles declaring that the
federal Constitution & laws shall be the supreme law of the land, and
that the Judicial Power of the U. S. shall extend to all cases arising
under them” was to allow “the Judicial Authority of the U.S. [to] be
the constitutional resort for determining the line between the federal
& State jurisdictions.” Notably, this was after decades of conflict
with a Federalist-dominated judiciary that the thought had abused the
trust; he insisted that “the abuse of a trust does not disprove its
existence.” Letter to Thomas Jefferson, June 27, 1823.
15
16 Ruth Gavison, “What Belongs in a Constitution?” 13 Constitutional
Political Economy 89-105 2004.
17 Note Gavison’s telling mistake of referring, in this context, to
“England” rather than “Great Britain” or “the United Kingdom.”
18 I describe it this way advisedly, remaining mindful of Waldron’s
powerful Hobbesian-cum-Razian complaint that “Almost any conceivable
decision-rule will eventually involve someone deciding in his own
case. Unless we envisage a literally endless chain of appeals, there
will always be some person or institution whose decision is final. And
of that person or institution, we can always say that because it has
the last word, its members are ipso facto ruling on the acceptability
of their own view. Facile invocations of nemo iudex in sua causa are
no excuse for forgetting the elementary logic of legitimacy: People
disagree, and there is need for a final decision and a final decision
procedure.” (2006: 1400-01). The only way to prevent Congress judging
in its own case how far its powers extend is to leave the Supreme
Court endlessly judging in its own case about the scope of its own
authority.
19 See Michael Lusztig, “Constitutional Paralysis: Why Canadian
Constitutional Initiatives Are Doomed to Fail,” Canadian Journal of
Political Science / Revue canadienne de science politique, Vol. 27,
No. 4. (Dec., 1994), pp. 747-771.
20 Following an account of disagreement at the time of constitutional
enactment, disagreement about constitutional interpretation at the
time of legislation, and that disagreement reappearing among judges at
the time of adjudication, Waldron writes, “my theme in all this is
reasonable disagreement, but I cannot restrain myself from saying that
anyone who thinks a narrative like this is appropriately modeled by
the story of Ulysses and the sirens is an idiot.” LD, 268.
21 And, of course, in practice it has been very difficult for
judiciaries to resist democratic majorities in just those cases that
we’re most prone to see as analogous to drunken panics: the Red Scare,
Korematsu, etc.
22 At least it is as much of a precommitment as any of the other
standard cases such as the First Amendment, even though neither it nor
the standard case involves an agent (the pouvoir constituante)
literally binding itself; but the gap between the legislature and the
electorate can’t be very significant for Waldron, since legislative
majorities are morally legitimate ways to resolve popular
disagreements on his account.
23 It is, of course, an entirely common reason for doing so, and this
turns out to be tolerable in a relatively balanced party system;
democracies don’t collapse as a result. But the rampant hypocrisy
around this is telling.
24 This is a simplification and shorthand; many of the entrenched
constitutional rules about federalism limit provinces and empower the
center. But these are more rarely the objects of constitutional
controversy except to determine where they run out (e.g. the U.S.
Commerce Clause). In the case of federations formed out of preexisting
polities—the U.S., Canada, Australia—the constitutional limits on
provinces may be the more important constitutional rules in early
decades, as the provinces learn to live with their reduced status. But
this tends to change over time; eventually, it is the center rather
than the provinces that is more likely to overreach.
25 Remember that in general federalist entrenchment does not
predetermine policy disputes (what regulations shall we have?) but
rather rules about determining such disputes (what level of government
may decide what regulations we will have?) Again, this is not
substantively neutral, but it is a proceduralist precommitment about
procedures, one step removed from questions of substantive policy. In
short, federalist entrenchment is more concerned with limiting the
ability of democratic majorities to decide who will decide various
questions more than it is with directly limiting their decisions about
the questions; it is this that makes it a relatively mechanical
precommitment.
26 In addition to all the works on constitutionalism already cited,
see his “What Plato Would Allow,” in Nomos XXXVII: Theory and Practice.
27 “The Wisdom of the Multitude,” 23(4) Political Theory 563-84, 1995
28 See, inter alia, Hayek, `The use of knowledge in society'. American
Economic Review , vol. 35, pp. 519-30 and Hayek, “Competition as a
Discovery Procedure;” the link between Hayekian discovery procedures
and information-aggregating processes more generally has been explored
by Cass Sunstein, most prominently in Infotopia, Oxford: Oxford
University Press, 2006.
29 I have attempted to show that ethnocultural federalism should be
understood as part of the normal case of federalism, not as a strange
exceptional one, throughout the papers cited above.
30 See Waldron, “Minority Cultures and the Cosmopolitan Alternative;”
“What is ‘Cosmopolitan’?” “Superseding Historical Injustice,”
“Cultural Identity and Civic Responsibility,” “Indigeneity: First
Peoples and Last Occupancy,” and “Redressing Historic Injustice.”
31 Here and in what follows, I am offering an implicit rejoinder to
the view laid out by James Tully, Strange Multiplicity, that the
modern constitutionalism of the French and American Revolutions and
the two centuries since is deeply incompatible with respect for
minority cultural rights. That rejoinder is explicit in my
“Montesquieu’s Constitutional Legacies,” in Rebecca Kingston, ed.,
Modernity in Question: Montesquieu and His Legacy, SUNY Press,
forthcoming, and “Constitutions Without Social Contracts, Political
Theory, forthcoming. Like Waldron, I think that the affinities between
countermajoritarian constitutionalism and multiculturalism are more
fundamental than the tensions between them—though I am sympathetic to
both and he is sympathetic to neither.
32 I have almost entirely discussed the entrenchment of provincial
autonomy against the center. The entrenchment of limits on the
provinces, and of the protection of the center’s areas of competence,
can also be tremendously important. Across federal systems probably
the most important such limits have to do with taxation, spending, and
debt. Without credible prohibitions on provinces pursuing inflationary
policies or on their offloading debt onto the center, responsible
budgeting and macroeconomic stability can be badly compromised. The
U.S. Constitution’s prohibition on states printing paper money is the
oldest example; a variety of contemporary constitutional rules
enforcing balanced budgeting on provinces or prohibiting central
assumption of provincial debt try to bolster the otherwise-weak
credibility of central governments promising provinces and credit
markets that the provinces must stand on their own fiscal feet. See
discussion in Jonathan Rodden, “The Dilemma of Fiscal Federalism:
Grants and Fiscal Performance Around the World,” American Journal of
Political Science, Vol. 46, No. 3 (Jul., 2002), pp. 670-687. In the
next iteration of this paper, I will discuss entrenched limits on
provinces; I am aware that I need to do so.
33 See, for example, Keith Whittington, Constitutional Construction
and Political Foundations of Judicial Supremacy.