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Essay about Tom Donnelly Making Popular Constitutionalism

In American Constitutional thought, it is generally regarded that the Judicial Branch and the courts should be independent from political sway. The Legislative and Executive branches were designed to represent the will of the people at the time, but the third branch is to remain isolated. Blatantly activist judges are generally regarded as unacceptable. It’s undeniable, however, that a completely independent judiciary is impossible in a democratic society. To some extent, the general populace plays a role in interpreting Constitutions, which is referred to as popular constitutionalism.

To what extent the general populace plays in the interpretation of the Constitution is still debated and the answer may vary from country to country. For this reason, it is simpler to just focus on how popular constitutionalism functions in the American tradition, although the general principles can be applied anywhere. While there is some limited form in which citizens help interpret Constitutions in American politics, citizens ultimately have very little say for a variety of reasons such as legislative paralysis and incumbent entrenchment.

Before discussing the various ways in which the American political system hinders popular constitutionalism, it is important to have a quick run-down on the basics of the Judicial system and how it interacts with the other two branches of government. Within the Judicial branch itself, there is a massive hierarchical structure. From state to state, this hierarchy may vary slightly, but generally each state has a Supreme Court that determines the constitutionality of state laws based on their own state’s constitution.

While the method of choosing state Supreme Court justices may change, they are generally voted on by the general people. At the federal level, there are 94 federal district courts with a combined 670 judges. These courts are the first level of appeals and they are determined by a jury trial. The second level is the Circuit court system. At this level, the first 94 courts are divided into 12 circuits of appeals, each with a varied number of judges. After the Circuit court, the final appellate level is that of the Supreme Court.

On the Supreme Court, there are nine justices whose role is to interpret the Constitution and determine whether or not state or federal laws violate said Constitution. At all three levels of the federal system, the judges are appointed by the current President and confirmed by the Senate with their “advice and consent”. With the American judicial system in mind, it is easy to see how some amount of Constitutional interpretation ebbs and flows with the changing tide of American popular thought. The Senate and the President are determined through the general population through elections.

Therefore, if the American populace could elect Senators and the President who would appoint and confirm judges who interpret the Constitution in the same respect as the will of the people, the general citizenry could have a say in the way that the Constitution is interpreted. In fact, this fight for the judiciary happens all the time in elections, most notably in America’s most recent one. Following the death of Justice Antonin Scalia in an election year, one of the main talking points of both the Republicans and Democrats was about the open Supreme Court appointment.

Each side had hoped to win the Presidency in an attempt to sway the leaning of the Court. In Jane Schachter’s article exploring popular constitutionalism in the area of the gay marriage debate, it becomes less clear how popular constitutionalism fits into the American tradition. She asks two important questions in regard to how popular constitutionalism played itself out in the gay marriage debate: which populace’s views should be followed and who speaks for said populace.

While it is undeniable that a support for legalized arriage has gained ground rapidly in the past two decades, this fact still does not truly answer the problems that Schachter offers. First she notes that “the issue of the plural populace begins to emerge as we turn from the nation to regions within it” (Schachter 1170). On a national scale, support for gay marriage is certainly growing, but there are specific regions of the country, particularly the south, which is considerably more hostile to legalized gay marriage. When this is taken into account, it is not so clear whether the national public opinion should be followed or the individual states.

In a traditional federalist argument, the gay marriage debate should be left up to the states since the federal government has no explicit authority to judge on this matter. Therefore, popular constitutionalism should only take into account the will of each individual state’s citizenry. However, some argue “that on a national question like the meaning of the Fourteenth Amendment, national popular views ought to be most significant” (Schachter 1173). This tension between national and federal views of the Constitution rages on and may not be solved anytime soon.

Schachter notes, however, that even if the first question is answered the question of who shall speak for the populace still remains. This can be done in many ways. While national referendums don’t happen, each state can still have their own referendums to determine the legitimate will of the people. One of the most famous of these referendums was Proposition 8 in California. Even within a federalist approach, this would be acceptable. Additionally, within each state, as mentioned previously, a state’s citizenry can elect judges who are favorable to the populace’s views.

They can also elect state and local officials who may flat out refuse to enforce marriage restrictions and go against the grain. Schachter points out that “as marriage litigation has shifted from state to federal courts, more state officials have exercised the prerogative not to defend antisame-sex marriage laws” (Schacter 1178). This rebellious nature of local officials can also go the other way in which those in power refuse to grant marriage licenses to same sex couples (generally on religious grounds), as can be seen most notably in the case of Kim Davis in Kentucky.

This all assumes, however, that the populace will resides in statewide views. On a more national scale, the spokespeople for the general will can include Congress and the Presidency. As previously mentioned, the fight for the Senate and the President are instrumental to popular titutionalism through the courts, but they can also simply pass legislation to interpret the Constitution. This happened most prominently with the Religious Freedom Restoration Act where Congress in 1993 tried to overturn the Supreme Court’s new restrictions on religious freedom following the case of Employment Division v Smith in 1990.

As can be seen through Schachter’s exploration of popular constitutionalism, the main drive for popular constitutionalism in America mainly stems from elections and voting either through state referendums, elections of state officials, or elections of federal officials. This method of popular constitutionalism runs into several hindrances, however, that limit the ability of citizens to have an effective voice on constitutional interpretation. In Tom Donnelly’s essay Making Popular Constitutionalism Work, he posits two ways in which the American system hinder popular constitutionalism.

The first of these problems is legislative paralysis. Legislative paralysis is defined by Donnelly as “an increase in partisan polarization in recent decades” where “compromise has become exceedingly difficult” (Donnelly 178). Congress has become stagnant and minority parties do everything in their power to obstruct the other. This fact leads to two effects that stifle popular constitutionalism. First, it creates distrust in elected representatives. If the citizenry can’t trust Congress or the Presidency to faithfully carry out the will of the people, then popular constitutionalism is dead.

Second, legislative paralysis creates a dependency on the Supreme Court to decide controversial issues. Since the courts are the structures least responsive to public will, this becomes a problem for popular constitutionalism. The second hinderance on popular constitutionalism in America is incumbent entrenchment. In America, incumbents are elected at a 90 percent re-election rate (Donnelly 182). If Congress is supposed to be an expression of the changing will of the people, yet Congress hardly ever changes, then how can Congress be a force for popular constitutionalism?

There are several factors that play into the high re-election rate. First, campaign finance laws make it difficult for up and coming politicians to win elections without a massive source of money. Second, redistricting efforts such as gerrymandering make it easier for political parties that currently hold power at the state level to maintain that power. Donnelly proposes that if these two institutional reforms were to be put in place, then it would help open up the doors for popular constitutionalism.

Finally, average citizens don’t have much of a say in interpreting the constitution due to economic barriers that prevent them from utilizing the court and legislative systems and being able to fully realize their full rights. Daniel Brink and Sandra Botero tackle this phenomenon in their essay Inequality and the Rule of Law where they take a look at economic inequalities in South America. They note that within heavily unequal societies there is a massive discrepancy in the rule of law to those of more equal democracies.

Those at the bottom of the ladder may have promises of economic stability, but they are hardly ever realized. This is due to two main factors: “inequality structures the interaction between first and second parties” and inequality “affects the capacity of second parties to build, influence, and engage with third party controllers” (Botero and Brinks 221). First parties are defined as those who have the burden of duty in recognizing rights and second parties are those who benefit from said rights.

In an unequal society in which the first party is more advantaged than the second party, the second party will have less influence on controlling first parties. They note that “neither self-restraint by the first party or self-help by the second party” are likely to succeed as effective controls (Botero and Brinks 221). Moreover, second parties are also going to have more dependence on third parties such as NGOs or Governmental agencies, yet there is almost a paradox in that they will be “less likely to build an effective infrastructure” of third parties (Botero and Brinks 221).

Ultimately, this all coalesces into a society in which “substantive rules will remain symbolic gestures, devoid of a well-developed system of lateral support, the distance between formal rules and actual behavior will remain great, and the rule of law will remain tenuous” (Botero and Brinks 221). This is a massive hinderance on the idea of popular constitutionalism if the populace can’t even effectively utilize the systems to change policy. Ultimately, there are too many hindrances in place that stop popular constitutionalism from truly becoming realized in America.

It’s not impossible for the public to voice their concerns on how the Constitution should be interpreted and getting elites to listen, but it is very difficult. Problems such as legislative paralysis, incumbent entrenchment, and economic inequalities all hinder the goal of popular constitutionalism. While there is still debate on the normative argument of whether popular constitutionalism is ultimately a worthy goal, it has yet to be realized in America. Perhaps other countries can perfect the formula.

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