Rob Hunter

Past and Future Popular Constitutionalism

I’ve recently started reading Stephen Engel’s American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power, an historical overview of the conflict between political actors and the Supreme Court over constitutional interpretation. As the title suggests, Engel is more concerned with political leaders acting from within and on behalf of political institutions, parties, and coalitions, and not so much with mass movements on behalf of constitutional change or maintenance (but more on that later). One the aspects of the book that I like is Engel’s portrayal of changing attitudes about the permissibility of constitutional disagreement. In the early republic, according to Engels, the predominant modality of constitutional deliberation was one of “civic republicanism,” in which politicians making constitutional claims perceived themselves to be explaining what the Constitution actually meant or required, and their opponents were, in fact, acting unconstitutionally or failing to uphold correct constitutional readings. In the aftermath of the Civil War, civic republicanism gave way to “liberal pluralism,” in which persistent disagreement over the Constitution is tolerated, and politicians may legitimately advance different constructions of constitutional meaning.

There are interesting linkages here to the historical study of popular constitutionalism. In Larry Kramer’s The People Themselves, popular constitutionalism is presented as the default mode of constitutional discourse, which was over time supplanted by judicial supremacy as the Court’s authority to interpret the Constitution through judicial review gained acceptance and support. Engel’s concept of liberal pluralism seems to map on to this later period: as constitutional disagreement becomes legitimate, attacks on the Court become less existential and more circumscribed, and politicians rarely attempt to call the Court’s institutional role or legitimacy into question. This raises a question for enthusiasts of good old-fashioned popular constitutionalism, however: is it possible, or indeed desirable, to return to the civic republican model of constitutional discourse, in which one’s rhetorical opponents are treated as enemies of the constitutional system and dangers to political order?

I would argue that a return to the rough-and-tumble constitutional politics of the early republic that Kramer esteems is unwarranted. Perhaps more to the point, however, it’s impossible: materially, ideologically, and rhetorically, a mass movement predicated on the idea that it is the guardian of the Constitution against anti-constitutional politicians or judges is not going to get off the ground in 2012 (not even the Tea Party comes close to fitting this description). Popular constitutionalism in the liberal pluralist epoch, and in contemporary politics, must necessarily consist of interactions between elites and mass publics. Constitutional construction and counter-construction will inevitably be articulated within political parties and be advanced by political leaders, and it will require engagement with existing political institutions. The popular constitutionalism of the future (if there is any) will not resemble the popular constitutionalism of the past: it will be occur within a matrix of institutions, parties, and norms that did not exist in the post-revolutionary or Jacksonian eras.