A government of laws

The constitutional order is changing as citizens become alienated and demand more say. Americans must take care that their habits of law – the ethos that makes the US exceptional – are not swept away.
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We live in a culture that prizes individual access to choice, and in an era that has provided greater opportunity for choice than has ever occurred in our history, perhaps in all history.  

The constitutional order within which we have lived since the 1870s – the industrial nation state – has been a resounding success by almost any measure. Our people are healthier, better educated and freer to choose where they live, what vocation to pursue, whom to love and marry, what cultural institutions can be accessed. Yet at the moment of its greatest triumph, this constitutional order is losing its legitimacy, largely because of its success.

Having tasted the fruits of the tree of knowledge, our People are now growing alienated from the present constitutional order, an order not designed to cope – perhaps not even capable of coping – with demands for even greater individuation of opportunity and greater devolution of national identity. Nor are Americans unique in this alienation, which is evident in many countries (I leave for another day the international and national security challenges facing the industrial nation state.)

This alienation is reflected in the character of our politics. The role of polling as a factor in the Clinton impeachment in 1999; the Republican drive to postpone hearings for the Supreme Court nomination of Merrick Garland until the presidential election in 2016 (and, for that matter, the push from Democrats to put off confirmation hearings for Amy Coney Barrett until after the election in November, 2020); the Republican refusal to consider evidence in the Senate trial of Donald Trump in 2019; and the offering of lists of potential nominees to the Supreme Court as part of Trump’s election manifestos in 2016 and 2020: All are symptoms of a larger shift in political culture. This shift can be characterized as an effort to bypass the constitutional norms of the American industrial nation-state in order to give the public a greater say in government decision-making. Powered by the habits of new generations that will grow up online, it is hard to see how this movement to bypass representative institutions can be slowed down. Indeed, it is further evidence of the march toward a new constitutional order – the informational market-state.

If the Emancipation Proclamation was the opening constitutional fanfare of the new, industrial nation state – a constitutional order that promised to override the market and secure greater material well-being and equality for all our people – then perhaps the all-volunteer army that replaced the draft was the opening trumpet call of a new constitutional order that promised to use the market to achieve greater access to choice for individuals and for those cultural, ethnic, linguistic, historical and sexual groups that are submerged in the industrial nation-state, one that characteristically promotes a single dominant national group.

The industrial nation-state exalted the rule of law: it was law that tamed and regulated and even replaced markets. The informational market-state – as I call the new, emerging constitutional order – tries to manage or even supplant the rule of law by superimposing the will of consumers. Whether the subject is conscription, marriage, women’s reproduction, or the deregulation of industrial practices, the United States is changing its basic orientation between the law and the market. And that is precisely what is happening with respect to unwritten constitutional norms.

A carefully crafted system of legal rules is being subordinated to polling, to pressure groups, to campaigns on Twitter and Facebook. Impeachment, for example, is becoming a vehicle for recall movements, as characteristic of the informational market state as voter initiatives and referenda. Just as these have gained momentum in the last few decades, we can see the time between impeachments shortening and their number increasing. For the first 200 years we had two presidential impeachments; now we have had two more in just 20 years.

Although the substance of the charges against President Clinton – perjury and obstruction of justice arising from his attempt to cover up an affair with a White House intern – were a far cry from the ‘high crimes and misdemeanors’ contemplated by the drafters of Article II of the U.S. Constitution, the party line vote in the Senate acquitting the president suggests that that judgment was in any case not made by strictly adhering to a legal rationale. On the contrary, the president’s approval ratings during the impeachment proceedings appear to have been his salvation. Polling immediately after 12 hours of debate showed that the hearings had no impact on the public’s opinion of the impeachment case or indeed on Clinton himself. Indeed, ‘Clinton’s popularity was as high as it had been at any point during his presidency, and 9 out of 10 respondents said that nothing during the [impeachment] hearings had shifted their view of the case,’ reported The New York Times in an article that year. Shortly after President Clinton became the second US president to be impeached, 72% of respondents voiced their approval of his job performance while 60% of respondents said that the Republicans were seeking the removal of the president for solely partisan reasons, as observed recently by Mary Jean Whitsell.

Laurence Tribe and Joshua Matz, in To End a Presidency: The Power of Impeachment (Basic Books, 2018), record that after conceding that he believed Clinton to have committed an impeachable offense, former Democratic Majority Leader Robert Byrd said that he would ‘reluctantly vote to acquit [because] the people’s perception of this entire matter … tip[s] the scales for allowing this president to serve out the remaining 22 months of his term.’ Impeachment was itself becoming plebiscitary as part of the movement toward market states.

So, too, can the manoeuvre by Senator McConnell be understood when the majority leader denied Judge Merrick Garland even a hearing on his nomination to be an associate justice of the U.S. Supreme Court. There is nothing in the constitutional text of Article II about confirmation of Supreme Court nominees being a voting matter for the public, any more than there is about impeachment in the same Article. Nevertheless, the Republican leadership insisted in 2016 that voters should decide who would succeed the late Justice Scalia.

Similarly, during the trial of President Trump, Senator Lamar Alexander was keen to explain his vote to deny the Senate crucial witnesses by saying that the election was soon enough to resolve the matter whether the president’s acts, which Alexander accepted as proved, were impeachable high crimes. In other words, he wished to replace the legal indictment and trial mechanisms of impeachment with an election.

Also in 2016, the Republican candidate for the presidency went beyond the pledges of his predecessors to appoint conservative justices and became the first presidential candidate to release a list of names of those lower court judges he would nominate for the Supreme Court. Then in 2020, Trump did it again, naming 20 conservatives he would choose among for any future nominations to the Court. ‘Candidates for president owe the American people a specific list of individuals,’ he said, so people can ‘properly make a decision as to how they will vote’ for the presidency.

That is where we are heading, as plebiscites repeal legal procedures specified in the Constitution. This is because, contrary to the expectations of the direct democracy lobby, referenda are creatures of the market and erode when they don’t destroy the legal mechanisms of representative government, checks & balances, and the rest of the complicated structure of American governance. In an information era, in contrast to the industrial era of group politics, ‘direct democracy’ has more in common with targeted advertising than it does with New England town halls or even the party conventions of the last 150 years.

If I am right about the future of the constitutional order, it does not however follow that the fundamental modalities of constitutional argument are doomed, along with the edifice of law that they support. On the contrary, they offer one essential means by which we can move to a new constitutional order without sacrificing the humane values these forms of argument have preserved. If our present constitutional order is freighted, if its legitimacy is rapidly and irreversibly decaying, this need not mean that the liberal values that have been supported by the rule of law must be abandoned. It means rather that we are in need, as we have not been for a century and a half, of some creativity on the part of our constitutional thinkers. 

Indeed, the Americans, those restless innovators and sometimes reckless pioneers, may be the best People to make this transition because they have done it before. I call your attention to six words uttered by President Lincoln on the field of a decisive battle of the worst war humanity had experienced up to his time. These words were: ‘Four score and seven years ago our fathers brought forth upon this continent a new nation…’ With those words, Lincoln announced that he was no longer seeking the war aim of preserving the Constitution. Had he been, the words would have read, ‘three score and fourteen years ago,’ marking the date of the ratification of the Constitution. Instead, his war aim had changed. Now he sought a new constitutional order, to support other values of the Declaration of Independence oriented around the value of human equality. These were values that the old constitutional order – the order of the imperial-state nation, the order of racism, patriarchy and imperialism – could not deliver and sustain.

It will be the challenge of the new generation to return again to the Declaration of Independence – specifically to its values of inalienable rights: rights that the industrial nation-state can no longer deliver and sustain. The right to a healthy natural environment, to freedom from terror, to access to knowledge and information, and the right to private lives – all these require more individuation and stronger international security than industrial nation-states can provide. Someday a new armed conflict or perhaps an environmental catastrophe will sweep away the old order. When that comes, we must take care that our habits of law – our constitutional ethos, the one thing that truly makes the US exceptional – are not also swept away.

Perhaps there are not many alive now who remember Barbara Jordan’s electrifying remarks before the House Judiciary Committee at the inception of the Nixon impeachment hearings. I was a law student at the time, and have never been able to forget them:

My faith in the Constitution is whole, it is complete, it is total.  I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.

When Barbara Jordan died, her long-time companion Nancy Earl called me up and asked to come see me. She said that Barbara had told her that if something happened to her – she suffered from multiple sclerosis and had had a couple of life-threatening episodes – she wanted me to have the little pocket constitution she always carried in her purse. When Nancy left, I was thumbing through the small edition, the pages of which were well-worn, when a strip of paper fluttered out. I picked it up and unfolded it. On it was typed this message: ‘All one can do is try to set a fine example and stand up for ethical values in the company of cynics.’*

*This is a translation from a letter of Einstein’s to Max Born.

Philip Bobbitt

Philip C. Bobbitt is a leading constitutional scholar and historian. He is Herbet Wechsler Professor of Federal Jurisprudence at Columbia Law School, and a fellow of the American Academy of Arts and Sciences and the Royal Historical Society.

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