The Political Battle for the Constitution
Perry, H. W., Jr., Powe, L. A., Jr., Constitutional Commentary
Battles over the meaning of the Constitution began before the document was written, and they have continued through history at varying levels of intensity and salience. But an important change regarding constitutional battles has gone largely unnoticed. Understanding the new terms of engagement helps us better explain the current behavior of many political actors, including Justices. We also believe that it may have significant implications for the future.
Over the past two generations, the Democratic Party and Republican Party have come to fundamentally different conceptions of the United States Constitution, and are visions that differ from the Constitution as interpreted by the Supreme Court. Previously, albeit only periodically, one political party has had serious disagreements with the Court, causing that party to articulate a separate constitutional vision. (1) What is new is that now both parties have done so. Without much recognition, we have reached a point where, in addition to the Constitution espoused by the Supreme Court, we have two quite different constitutions in waiting and in action, one attached to each political party. Furthermore, unlike previous one-party episodes, this time the phenomenon has not evaporated after a few years. Documenting and understanding this phenomenon fully requires serious attention to both law and politics.
That the political parties have developed opposing visions of the Constitution which in turn differ from the Supreme Court's demonstrates that there can be useful constitutional interpretation distinct from that of the Court. (2) The debates of the first Congresses showed as much. (3) More importantly, the rise and persistence of these opposing visions has important implications for constitutional politics now and in the future. The fact that each party's vision is quite opposed to the other's throws light on the apocalyptic statements by each party over the past five of six presidential elections (4) concerning the inherent danger of any Supreme Court appointee coming from the other party. The exception was the election of 2004. Neither party's convention nor campaign reflected the constitutional differences we shall describe. The reason was articulated in early September by New York Times reporter Roger Cohen when he wrote that "this vote has a theme: the war." (5) Quite understandably, war (6) and national security trumped everything else. That said, it did not take long after the election for the appointment of judges to return front and center. Talk did turn to "nuclear options" but it was not about war. The issue of the appointment of judges was so contentious that Republicans threatened to use the "nuclear option" and prevent filibusters. Thus far, it has gone unused. In the end, the division helps explain the non-ideological nature of all of the post-Bork nominees except Thomas. (7) Absent profoundly differing constitutional visions, the current battles over circuit court nominations might appear merely as tit-for-tat for what Republicans did to Clinton nominees.
Understanding the split not only helps to explain and predict behavior, but it also raises larger questions. (8) For example, the so-called countermajoritarian difficulty is sometimes dismissed by the claim that the majority position will soon prevail. (9) If, however, the Court develops its own vision of the Constitution that is different from either party, it raises interesting issues about democratic accountability. Perhaps, however, in a political world where the parties have become more polarized, the Court in forging a majority opinion is offering the bipartisanship that the public purportedly wants but is otherwise lacking in Washington. For many reasons then--historical, behavioral, and theoretical--attention to this phenomenon is important.
Focusing on political parties is not something legal academics tend to do. (10) We know parties exist and differ on policy, and we understand them as electoral organizations, but we often ignore them as crucial institutions in governing. …