130629

　　AMERICAN CONSTITUTIONALISM: LONG-RUN DEVELOPMENT

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　　DIMENSIONS OF POLITICS                   DIMENSIONS OF POSTS

　　Sectors: All                                           Importance: ****

　　Level: National                                     Scope: USA only

　　Period: Long run                                  Process: Elite politics.

　　MAIN TOPIC: CONSTITUTIONALISM     Treatment: Background.

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　　DYNAMICS 1

　　Historical institutionalism 1.1

　　Institutional history 1.2

　　Political history 1.3

　　LEVELS 2

　　Narratives: Populist versus elitist 2.1

　　Crises: Organization and environment 2.2

　　Functions: Constraining versus enabling 2.3

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　　SERIES: This Post concludes a series on AMERICAN CONSTITUTIONALISM. The series asks: What is it? How does it relate Law and Politics to each other? What is the relationship between the original 1787 Constitution and the subsequent “constitution” gradually constituted by ordinary legislation? What is the role of the Judiciary in relation to Other institutions?

　　This Post treats historical development, both constitutional and political (long-run, systemic).

　　The first (130608) stated general Themes. The second (130615) discussed the current Situation of particular decisions (short-run, individual). The third (130622) discussed gradual doctrinal change that eventually produces “shift” in constitutional Regime (mid-run, institutional).

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       130629

　　AMERICAN CONSTITUTIONALISM: LONG-RUN DEVELOPMENT

　　The previous two Posts on American Constitutionalism (130615 and 130622) moved from short-run Situation to mid-run Regimes. This Post extends further to long-run Development and other kinds of large-scale analysis. (Temporally, the large-scale unit is Development, across all of American constitutional-political history. Structurally, the main large-scale unit is all Levels: national, subnational, and supranational. Functionally, the large-scale unit is whole policy Sectors: security, economy, and identity.)

　　In this Post, “historical institutionalism” provides ways to understand the long-run DYNAMICS of American constitutional development. Recent work has detailed how judicial institutions were built. Other recent work explains how politicians eventually came to promote judicial power. Across LEVELS, some narratives of American constitutional development are populist, some elitist. Changes in the relationship of the Constitution to its political environment have produced successive constitutional crises. Most observers think of constitutionalism as constraining ordinary politics, but recent work stresses how it enables politics.

　　(Eventually, a later Post will consider large-scale issues in terms of separate policy SECTORS: Identity (social rights), Economy (capitalism), and Security (war powers). A later Post will also address the notion of “constitutionalism” in general, noting recent comparative and theoretical guides – Rosenfeld and Sajo eds. 2013, Tushnet and others eds. 2013 – and such projects as the one that Elkins, Ginsburg and Melton 2009 begins to report.)

　　DYNAMICS 1

　　We first introduce “historical institutionalism,” then review judicial institutional history, and finally relate judicial development to larger political history.

　　Historical institutionalism 1.1

　　As noted at the beginning of the previous Post, the academic disciplines of constitutionalism, political science, and political history currently are interacting to produce a new synthesis on American constitutional politics, at all scales of analysis. The most interesting constitutionalists have been influenced to a remarkable extent by political science “historical institutionalism,” which has analyzed temporal patterns in American political development (see Post 130427). This section notes related patterns that scholars are uncovering in American constitutional development. (For diverse discussions, see the lively chapters in Kahn and Kersch eds. 2006 and its summary Conclusion.)

　　For starters, since 1787 the American Constitution HAS defined the basic framework of American politics. That might seem simple: checks and balances, federalism, and all that. Nevertheless, exactly HOW the 1787 Constitution still matters can become subtle, as scholars continue to labor to explain (e.g., Tushnet 2010). Most Americans imagine that Britain has had an “unwritten” constitution (that is, no single formal Constitutional document, instead a system of gradually evolving “common law”) while the USA has had a more statutory “written” Constitution that has more strongly guided American political development. In fact, Tushnet argues, in practice American constitutional development has strongly resembled British development, with the Supreme Court (and other institutions) providing incremental reinterpretations in a common law style that has gradually transformed the practical meaning of the original 1787 document. (For a history of themes in the American Constitution – particularly the notion that, properly structured, government power can promote individual liberty – see Bodenheimer 2012.)

　　Across American constitutional development as a whole, a general temporal pattern is gradual “institutional thickening.” The outline of government organization that the Constitution provides is rather sketchy or “thin.” As the Framers intended, practicing politicians have put that outline into practice by specifying the necessary institutions in more detail. As time passed, those institutions became “thicker” and thicker, making further institutional change more and more difficult. Some of that effect has been deliberate, as currently dominant political forces seek to “entrench” their preferred procedures and policies against future forces. Pivotal among those institutions have been political parties, which the Framers famously deplored but that the electoral prescriptions of their Constitution inadvertently encouraged.

　　One might think that, in the course of a country’s development, its economy, politics, and constitution would naturally “modernize” together. However, the political science founder of historical institutionalism, Stephen Skowronek, illuminated the contortions to which American state-builders had to go between about 1880 and 1920 in order to overcome resistance to strengthening the national government in order to run an increasingly integrated and industrialized national society. The contortions left distortions in the resulting bureaucratized state, relative to an ideally efficient and democratic design.

　　A least three temporal patterns help make institutions – including constitutions – ALWAYS suboptimal. First, the establishment of successive regimes gradually eliminates alternative paths of possible development (“path dependence”). (Re)framers can never start from a blank slate. Second, any new regimes must be established in the context of old regimes, limiting what reformers can do and (mis)shaping the result (“misdevelopment”). Third, practicing politicians can establish only those institutions that satisfy currently dominant interests.

　　Arguably the most general distortion in the course of American constitutional development has resulted from the Framers’ making the formal 1787 Constitution so difficult to amend (Tushnet 2009). Successors could adapt the Constitution to changing circumstances only through (often rather strained) formal (re)interpretations. Or, eventually, through going around the formal Constitution altogether, by legislating “super-statutes” that define a supplementary new informal constitution . Also, during crises, leaders and publics have undertaken new “constitutive commitments” (Sunstein 2004).

　　Given the emphasis of historical institutionalism on possible “mis” development, a recent innovative account of building the INSTITUTION of the American judiciary is remarkably positive (Crowe 2012 Building the judiciary). Most law school literature on constitutional Development has focused on DOCTRINE. Most political science literature on constitutional Politics has focused on when and how the judiciary has USED its institutional power. Most of that literature regards such use as somewhat suspect, since most assumes that there should be some distinction between constitutional law and ordinary politics. Crowe wants to address the prior question – previously largely unasked – of when and how the power of judicial institutions was BUILT. He answers, through active collaboration between politicians and judiciary, a collaboration that prevails over conflict throughout most of American history. That places judicial matters squarely in the middle of American politics, which Crowe considers both historically normal and normatively desirable.

　　Institutional history 1.2

　　Crowe posits three main cycles in “building the judiciary,” each involving both a major and a minor episode. The major episodes do the major building, the minor episodes attempt minor repairs. By the time a the minor episode is ending, usually the major structure is no longer adequate to its task environment, requiring another episode of major building, launching another cycle. The three MAJOR episodes are: Establishment during the early Republic (1787-1805), Empowerment during the Civil War and Reconstruction (1850-1877), and Bureaucratization during the First World War and interwar period (1914-1939). The three MINOR episodes are: Reorganization under Jefferson and Jackson (1805-1850), Restructuring during the Gilded Age and Progressive Era (1877-1913), and Specialization (1939-2000).

　　Crowe’s three main cycles in the building of INSTITUTIONS correspond only partly to the three major eras that constitutionalists usually posit in the development of DOCTRINE (Founding, Reconstruction, New Deal-Great Society). The two corresponded closely in 1787-1805 during the Founding and again in 1850-1977 during Reconstruction. In the 1900s, Crowe’s 1913-1939 Bureaucratization occurs BEFORE the 1939-1980 doctrinal changes surrounding the New Deal and Great Society.

　　Crowe’s three main cycles in the building of JUDICIAL institutions correspond only very roughly to the three main POLITICAL regimes of state-society relations posited by historian Morton Keller (2007, see Posts 130504, 130511, 130518). Some discrepancy is not surprising, since Crowe focuses narrowly on building the judiciary while Keller broadly canvasses slow changes in the institutions linking state and society. Nevertheless, a brief examination of some main correspondences and discrepancies will be instructive.

　　Arguably the closest correspondence between judicial and political construction was during 1787-1805, when Crowe has the Framers establishing the Constitution and Keller has the Founders establishing what this Blog’s Post 130504 calls the Elite Republic. From 1805 to 1850, Crowe has Jefferson and Jackson effecting a minor “reorganization” of the judiciary, while Keller has them gradually innovating what Post 130511 calls Mass Democracy. For both, 1805 to 1850 is a period of transition.

　　Keller thinks Mass Democracy lasts from the 1820s through the 1920s. So Crowe and Keller get badly out of sync in the mid 1800s, when Crowe finds a major new Empowerment of the judiciary. Keller finds a temporary interruption (the Civil War) but no fundamental change of state-society regime. In 1877-1913 Crowe finds a minor Restructuring, again during Keller’s now more highly organized mass party regime.

　　In 1913-1939 Crowe’s major Bureaucratization of the judiciary precedes Keller’s major bureaucratization of the state-society regime. (Keller would agree that earlier Progressive bureaucratization was a fore-runner of New Deal bureaucratization.) In 1939-2000, Crowe’s minor Specialization corresponds well to Keller’s new regime, what Post 130518 calls Populist Technocracy. (In Keller’s account, under this new regime, mass parties do not disappear, but are extensively supplemented through additional, more bureaucratic institutions for linking state and society such as interest groups, mass media, and public opinion.)

　　So the main discrepancy between Crowe’s cumulative building of judicial institutions and Keller’s periodic reconstruction of state-society regimes occurs in the 1800s. Crowe finds major political Empowerment of the judiciary after the Civil War and minor Restructuring in the decades surrounding 1900. Keller recognizes the importance of the Civil War constitutional innovations in the 1860s, but argues that they were not actually implemented until the 1960s. In both the first and second halves of the nineteenth century, it was almost exclusively mass political parties that linked state and society, hence no fundamental change in political regime. If there was a major difference in judicial regime between the first and second halves of the nineteenth century, perhaps it involved some difference in the relationship between the judiciary and mass political parties. Such a change should be particularly significant given that Skowronek regards nineteenth century American politics as centered on “courts and parties.”

　　

　　Political history 1.3

　　Here we can turn to another major recent account of American constitutional-political development. Stephen Engle (2011) argues that, from 1787 to 1877, American politicians only gradually accepted two interdependent ideas: that it was legitimate for there to be an opposition party opposing the currently dominant party, and that it was legitimate for parties to advance competing interpretations of the Constitution. Relatedly, American political ideology gradually shifted from Civil Republicanism to Interest Pluralism. Civic Republicanism assumed there could be only one correct interpretation of the Constitution. In contrast, Interest Pluralism regards disagreement as healthy and demands only correctness of procedure, not any particular substantive outcome. (Today, Interest Pluralism dominates, but some Civic Republicanism remains, two sides of American liberalism. For more history of the construction of federal court authority, see Lee 2011.)

　　Engle’s historical account of opposition politics might seem wrong, given that two rival parties had emerged by 1800, and that robust competition between two parties emerged again by 1840. But the point is that in 1800 the Federalists and Jeffersonians regarded each other as fundamentally suspect, precisely because they advocated different interpretations of the 1787 Constitution (mostly over the amount of power that the federal government could exercise over the states). Again in the 1840s, Democrats (successors to the Jeffersonians) and Whigs (successors to the Federalists) regarded each other as threats to the stability of the Republic, again because they advanced rival interpretations of the Constitution (mostly over the legitimacy of slavery and how the admission of new states should be managed).

　　The Civil War victory of the North under the new Republican party (successors to the Whigs) largely resolved these divisive issues (national power could be used for legitimate purposes, slavery was now illegitimate). Accordingly, in Engle’s terms, it became safe for American politics to entertain rival interpretations of any remaining Constitutional issues and legitimate for there to be an opposition party. Arguably, in Crowe’s terms, the fact that Republican politicians achieved dominance of American politics during the Civil War made it safe for them to “empower” a Republican judiciary as an ally in governing the country.

　　What remains unclear (to this reader at least) is exactly what analytical narrative carries one from 1877 to 1939. In a fairly conventional progressive political narrative, the 1860s amendments to the national Constitution were intended to protect newly freed black slaves against restrictions and reprisals by southern state governments. However, in the late 1800s, the national Supreme Court used those amendments to protect not southern blacks against southern terrorism but instead northern corporations against government regulation. The rights protected were not the civil rights of individuals but the economic rights of corporations. The rationale shifted from non-discrimination against individuals to due process in taking property. The thrust of those decisions was not individual but institutional, limiting the power of government to intervene in economic matters.

　　Evidently Keller’s increasingly organized mass parties succeeded in using compliant jurists to hijack the new post-Civil War constitutional order in the interests of business elites. Evidently Crowe’s minor 1877-1913 institutional Restructuring involved major doctrinal innovation, completing Engle’s ideological transition from Civic Republicanism to Interest Pluralism. (And, one might add, Industrial Individualism, in which workers were responsible for their own welfare.) This highly original (NOT “originalist”) new “classically liberal” constitutional order became institutionalized resistance to state-building, first in the 1890s-1910s by Populists and Progressives, then in the 1930s by progressive Democrats. It took the Great Depression crisis and reconstructive president Roosevelt to propel a transitions from classical liberalism to modern liberalism, as sketched in the previous Post. (For a sketch of “regime dynamics” from the late 1930s to early 2000s, see Tushnet 2006.)

　　Particularly from 1877 to 1939, how much is this largely political narrative complicated by additional understanding of the building of judicial institutions and the evolution of constitutional doctrine? During that period, what are the respective influences of dominant business interests and Progressive institutional rationalization? This author is not competent to say. The 1913-1939 institutional reforms were initiated by jurists themselves (particularly William Howard Taft), to modernize their operations and increase their power. Those reforms were Progressive-elitist institutionally (in the sense of trying to rescue the courts from the parties?). However, they were not Progressive-Populist programmatically (politics was still dominated by business). The later doctrinal reforms were initiated by a politician (Franklin Roosevelt) to permit his proceeding with progressive policy programs (which, for tactical reasons, he relabeled “liberal.”) Did Roosevelt hijack the recently bureaucratized judicial institutions and redirect them to his own new policy purposes?

　　Overall, the point is that long-run historical development is not a matter of the smooth unfolding of inevitable historical tendencies or deep constitutional logic but rather a matter of contingent political struggles between self-interested actors.

　　

　　LEVELS 2

　　Large-scale analysis of long-run American constitutional development raises large themes.

　　Here the example remains the USA, but we reach for more general implications. Recent NARRATIVES display an interplay between Populism and Elitism. Periodically, CRISES have arisen from emerging misalignments between constitutional Organization and political Environment. As regards FUNCTIONS, constitutionalism has long been regarded mostly as a way to Constrain politics, but recent writing views it as a way to Enable and animate politics. These topics involve vertical relations between “levels” in various senses: relations between elites and masses, between state and society, and between higher law and lower politics. Also, relations between subnational, national, and supranational.

　　Overall, constitutionalism has long been regarded as a mainly normative enterprise, but increasingly is being subject to empirical analysis. Some recent literature has used social science modeling to inform normative concerns and to illuminate historical development (particularly Sunstein and his collaborators). For example, using principal-agent analysis, Stephen Holmes (1995 and 2103) explains that, in a wide range of historical polities, constitutionalism has provided ways, not for the powerless to constrain the powerful, but for the powerful to constrain themselves, in order to create and exercise power more effectively. Rules of elite succession can help avoid debilitating power struggles within the elite. Requiring joint action by diverse officials can reduce corruption. Limits on elites’ exercise of their power can create more elite power by eliciting more cooperation from masses. Overall, one should suspect that constitutional provisions are largely prudential, sponsored by current elites for their current purposes. Nevertheless, later elites can interpret those provisions more normatively, perhaps at the urging of later publics.

　　Narratives: Populist Versus Elitist 2.1

　　Narratives of American constitutional development have involved an interplay between populism and elitism. A main innovation of the Framers was to attribute the 1787 Constitution directly to “We the People,” not to any elite lawgiver or constitutional convention. Accordingly, populist narratives of American constitutionalism long prevailed and have recently revived. In between arose more critical narratives centered on elites. (Actually – in accord with ordinary Americans’ basically populist values – both narratives may be populist, in the sense that the populist narrative is what populists hope while the elite narrative is what populists fear. On populist constitutionalism, see Kramer 2004.)

　　Recently progressive constitutionalist David Ackerman has provided a sweeping new narrative of American constitutional history (1991, 1998). According to him, America has experienced several “constitutional moments” (really lasting about a decade) during which, after broad public participation, the USA has authoritatively adopted new constitutional principles. The larger shifts were the 1780s Founding (following the American Revolution), the 1860s Reconstruction (following the Civil War), and the 1930s New Deal (following the Great Depression). Shifts that occurred in the 1800s, 1830s, 1890s, 1960s, and 1980s were smaller and less authoritative. As fellow progressive Mark Tushnet has noted (2009), Ackerman’s scheme privileges progressive constitutional “moments” over conservative ones – in particular, Lincoln and Roosevelt over Reagan.

　　To Ackerman, the American Constitution is NOT, as Americans have recently tended to view it, a perfectly designed machine that automatically perpetuates some supposed initial system “stability,” with the Supreme Court as mere technicians maintaining the “original.” Instead, in Ackerman’s earlier optimistic view of America’s constitutional past, Americans have used their Constitution to create a series of dialogues between successive generations. Periodically, based on some idealistic speculations, a generation of “We, the People” takes populist revolutionary initiatives. Then the next generation of elites, based on experience with actually trying to implement those initiatives, formulates realistic institutional consolidations. Supreme Court intervention is both creative and stabilizing, periodically weaving new threads into America’s cumulative constitutional tapestry. (Ackerman 2005, 224-266, particularly page 266. Note that this is the opposite of an account in which realistic arrangements are later given more idealistic interpretations.)

　　In an ELITIST narrative, elites use constitutionalism to protect their interests. The American historian Charles Beard famously argued that the Framers designed the 1787 Constitution to protect their economic interests (an interpretation that, in its narrow form, is currently unfashionable). More broadly, the constitutional historian Lucas Powe has recently (2009) detailed how, throughout American history, elites in each period have gotten pretty much the Supreme Court (and Constitutional doctrines) that they wanted. Most generally, Ran Hirschl has recently (2004) claimed a global tendency toward “juristocracy” – delegating Constitutional interpretation to top jurists as one among many elite strategies for placing matters that are crucial to them as far as possible beyond the reach of democratic politics. This process is “dualistic” in the sense that it involves both overt constitutional processes and covert elite power.

　　Crises: Organization and Environment 2.2

　　As the 1787 Framers hoped, most Americans have accepted the 1787 Constitution as a paragon of timeless perfection. Some approve that it has formally changed quite little over hundreds of years. Others approve that it has been informally adapted to changing times as necessary. Both consider the whole enterprise a largely unqualified success. Nevertheless, the fact that for the past three centuries a considerable population has persisted and prospered on the North American continent does not suffice to evaluate the success or failure of American Constitutionalism. Numerous disasters have occurred along the way. The reverential attitude of media and public toward the 1787 Constitution discourages asking necessary questions. Exactly what was the constitutional and political logic of the 1787 design? Could it have worked? Has it worked? Has it changed? If so, how? Does it work now? Does it need further change? How could such change occur?

　　As recent scholarship has begun to clarify, to understand the constitutional fundamentals of American politics one must challenge many of the basic assumptions on which the whole annual Supreme Court rigamarole is ostensibly based. As this Series noted at the outset, one must reexamine the problematic and changing relationship between Law and Politics, Constitutionalism and constitutionalism, and Judicial and Other institutions. One can certainly understand that the judiciary would focus on policy domains in which judicial intervention is politically feasible. Nevertheless, one must critically inspect the uneven distribution of the attention of the Constitution and Court across Levels and Sectors: much more attention to Subnational violations of individual civil rights, much less attention to lack of deliberation between branches of the National government, and virtually no attention to Supranational issues, particularly national security.

　　Perhaps most fundamental, one must inquire into the changing relationship between American constitutional organization and its evolving political environment. A constitution that works well under one set of political circumstances may not work well under another. Holmes 2013 remarks that one can expect even so fundamental a property of a constitutional system as its degree of democracy to wax and wane as changing circumstances change the relative power of elites and publics. Currently, globalization and technological change reduce the leverage of publics and, therefore, the degree of democracy.

　　The original 1787 Constitution assumed an elitist Civic Republicanism without political parties. As soon as parties began to emerge, the system nearly broke down (in 1800, Ackerman 2005). After surmounting that crisis, the Constitution worked fairly well as long as political elites left the issue of slavery to the original Constitutional compromise (slavery was legitimate and one slave equals three-fifths of a person). However, the settlement and admission of unexpectedly extensive new territories raised the issue of slavery again, requiring more compromises. The emergence of nation-wide mass political parties probably helped buffer national politics from regional rivalries. Nevertheless, as anti-slavery populations began to predominate, the South realized that eventually it would be outnumbered and attempted preemptive secession. The 1787 Constitution broke down and had to be reimposed on the South through war.

　　After Reconstruction, under Interest Pluralism, the two-party system worked acceptably for a century, as long as both parties had diverse geographical bases that included the ideological descendants of both anti-slavery and pro-slavery forces. However, in recent decades those two populations increasingly have sorted themselves into two discrete geographical regions (the two coasts versus the center and south). The two parties have increasingly realigned themselves with those two geographical bases. In its base constituencies, each party faces fewer and fewer supporters of the other party and therefore has less and less incentive to compromise with the other party.

　　Meanwhile, as Dahl 2001/2003 laments, the growth and redistribution of population have greatly aggravated the malapportionment of the original Constitution (two senators from each state, regardless of population). With progressive population concentrated in a few coastal states and conservative population distributed sparsely across many interior states, conservatives have gained an unwarranted veto over national policy. (Less politically, Opeskin and Nwauche 2013 survey relationships between constitutional organization and demographic environment.)

　　Thus, together, local changes in political environment have thrown national organization into gridlock. That constitutes a Constitutional crisis, because it is the Constitution that prescribes malapportionment and encourages a two-party system based on localities. Some minor institutional adjustments could fix the problem, but the parties may not have the incentive to make them. (For diagnoses and suggestions, see Dahl 2001/2003, Levinson 2006, Sabato 2007, Balkin and Siegel eds. 2009, and Mann and Ornstein 2012. More promising than amending the Constitution is adjusting extra-Constitutional institutions, but even that seems unlikely.)

　　Since the mid-1900s, waging a series of global wars has increased the power of the American executive – presidency, bureaucracy, and military – vastly beyond what the Framers expected. For some observers, that too constitutes a constitutional crisis (e.g., Ackerman 2010). The Framers thought that, institutionally, the legislature would be most powerful, so split it in two, which now exacerbates the excessive power of the executive. Even worse, Ackerman argues, the USA has changed ideologically as well, in ways that may permit the executive to legitimate its new power. Politics proceeds through “government by emergency” and “government by public opinion.” The executive has increased its legal capacities to the point of installing “executive constitutionalism,” potentially threatening judicial authority. The practical result has been a lack of inter-branch diversity in deliberation over foreign policy, producing a series of foreign disasters (Griffin 2013 and Zeisberg 2013).

　　To the extent that American Constitutionalism works well – adopts principles and policies that are ultimately adaptive through procedures that are effectively deliberative and ultimately democratic – one certainly wants to preserve it. As Albert Hirschman observed, organizations are costly to construct, so usually one should try to repair them, not discard them. That is all the more true of national political institutions, particularly an institution as hallowed as American Constitutionalism. Nevertheless, to the extent that the system does NOT work well, one certainly wants to critique it and change it.

　　Functions: Constraining versus enabling 2.3

　　Among academics and publics, constitutionalism has long been thought of as a normative enterprise, setting out ideals or rules to which politics and politicians must adhere. Constitutionalism should be “above” ordinary politics. Such a view raises both empirical and normative problems. Empirically, exactly how can constitutional ideals be enforced? What will constrain the powerful from installing constitutional doctrines that permit them to do what they please? Normatively, if “democracy” means rule by the majority, isn’t delegating major decisions to a few Supreme Court justices “counter-majoritarian”? If so, is that good, protecting minority rights from majority infringement? Or is it bad, removing matters from democratic deliberation? (Bickel 1962. For constitutionalist discussions, see Eisgruber 2001 and Ward & Castillo eds. 2005.)

　　Some recent literature has abandoned that problematique. Modern democracy – representative and constitutional – is NOT simply majority rule. It is supposed to be rule through reconciliation of as many views as possible. Delegation can be democratic, if done by democratically elected representatives. The real protection of rights, majority or minority, cannot rely just on specialists’ reiteration of normative ideals but must also involve public awareness, commitment, and participation. In fact, constitutionalism should not be the province only of courts. Constitutional issues should be raised and debated by other elite institutions and by the general public. (Tushnet 1999. Specifically on the role of the Supreme Court in American Constitutionalism, see Kautz and others eds. 2009, particularly the chapters by Tushnet, Smith, and Whittington.)

　　Increasingly, constitutionalists have argued that constitutions should be not so much expositions of principles as practical plans for achieving concrete national objectives under particlar political circumstances. The 1787 American Constitution illustrates this: It begins with high-flying rhetoric but mostly sketches institutions for governing. Holmes 2013 argues that the most essential objective is the “constitution” of military forces for national defense and even imperial conquest. Almost as important are economic rules that induce the rich to lend money to the powerful and to invest in development, creating prosperity for everyone. Helpful to both defense and development are protections and incentives to promote the upward flow of information (otherwise inverse to downward power).

　　One of president Obama’s favorite legal theorists, Cass Sunstein, argues that constitutional adjudication should proceed incrementally and minimally, identifying the narrowest principles necessary for resolving a legal issue and for reaching a practical agreement (1999, 2001). Constitutions and courts should avoid any fundamental issues that may be intractable, as in deeply divided societies. Nevertheless, constitutionalism should steer politics and society toward collective deliberation, encouraging citizens to exchange not threats but reasons.

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　　REFERENCES AND READINGS

　　Ackerman, Bruce 1991. We the people,1: Foundations. Cambridge MA: The Belknap Press of Harvard University Press. 515p.

　　Ackerman, Bruce 1998. We the people, 2: Transformations. Cambridge MA: The Belknap Press of Harvard University Press. 515p.

　　Ackerman, Bruce 2005. The failure of the Founding Fathers: Jefferson, Marshall, and the rise of presidential democracy. Cambridge MA: The Belknap Press of Harvard University Press. 384p.

　　Ackerman, Bruce 2010. The decline and fall of the American republic. Cambridge MA: The Belknap Press of Harvard University Press. 270p.

　　Balkin, Jack and Reva Siegel eds. 2009. The Constitution in 2020. New York NY: Oxford University Press, 355 pages.

　　Bickel, Alexander M. 1962/1986. The least dangerous branch : The Supreme Court at the bar of politics, 2nd ed. New Haven CN: Yale University Press, 303 pages.

　　Bobbitt, Philip 2002 The shield of Achilles: War, peace, and the course of history. New York NY: Knopf, 960 pages.

　　Bobbitt, Philip 2008. Terror and consent: The wars for the twenty-first century. New York NY: Knopf, 688 pages

　　Bodenheimer, David J. 2012. The revolutionary constitution. New York NY: Oxford University Press, 281 pages.

　　Crowe, Justin 2012. Building the judiciary: Law, courts, and the politics of institutional development. Princeton NJ: Princeton University Press, 295 pages.

　　Dahl, Robert A. 2001/2003. How democratic is the American Constitution? 2nd ed. New Haven CN: Yale University Press, 224 pages.

　　Eisgruber, Christopher L. 2001. Constitutional self-government. Cambridge MA: Harvard University Press, 260 pages.

　　Elazar, Daniel J. 1998. Covenant & constitutionalism: The great frontier and the matrix of federal democracy. New Brunswick NJ: Transaction, 287 pages.

　　Elkins, Zachary, Tom Ginsburg and James Melton 2009. The endurance of national constitutions.

　　New York NY: Cambridge University Press, 260 pages.

　　Engel, Stephen M. 2011. American politicians confront the Court. Cambridge NY: Cambridge University Press, 406 pages.

　　Eskridge, William N. and Sanford Levinson eds. 1998. Constitutional stupidities, constitutional tragedies. New York NY: New York University Press, 286 pages.

　　Eskridge, William N. And John Ferejohn 2010. A republic of statutes: The new American constitution. New Haven CN: Yale University Press, 582 pages.

　　Feldman, Noah 2012. “What’s the difference between broccoli and health insurance?” Bloomberg (30 June).

　　Garrison, 2011. Supreme Court jurisprudence in times of national crisis, tetrorism, and war: A historical perspective. Lanham MD: Rowman & Littlefield, 481 pages.

　　Grifffin, Stephen M. 2013 American constitutionalism: From theory to politics. Princeton NJ: Princeton University Press, 216 pages.

　　Hirschl, Ran 2004. Towards juristocracy: The origins and consequences of the new constitutionalism. Cambridge MA: Harvard University Press, 186 pages.

　　Hoekstra, Valerie J. 2003. Public reactions to Supreme Court decisions. New York NY: Cambridge University Press, 177 pages.

　　Holmes, Stephen 1995. Passions and constraint: On the theory of liberal democracy. Chicago IL: University of Chicago Press, 352 pages.

　　Holmes, Stephen 2013. “Constitutions and constitutionalism.” In Rosenfeld and Sajo eds. 2013, 189-216.

　　Kahn, Ronald and Ken I. Kersch eds. 2006.The Supreme Court and American political development. Lawrence KA: University Press of Kansas, 294 pages.

　　Kautz, Steven, Arthur Meltzer, Jerry Weinberger and M. Richard Zinman eds. 2009. The Supreme Court and the idea of constitutionalism. Philadelphia PA: University of Pennsylvania Press, 320 pages.

　　Kramer, Larry D. 2004. The people themselves: Popular constitutionalism and judicial review. New York NY: Oxford University Press, 363 pages.

　　Lee, Evan Tsen 2011. Judicial restraint in America. How the ageless wisdom of the federal courts was invented. New York NY: Oxford University Press, 232 pages.

　　Levinson, Sanford 2006. Our undemocratic Constitution: Where the Constitution goes wrong (and how We the People can correct it.) New York NY: Oxford University Press, 231 pages.

　　Levinson, Sanford 2012. Framed: America’s fifty-one constitutions and the crisis of governance. New York NY: Oxford University Press, 437 pages.

　　Mann, Thomas E. and Norman J. Ornstein 2012. It's even worse than it looks : how the American constitutional system collided with the new politics of extremism. New York NY: Basic Books, 226 pages.

　　McCloskey, Robert G. 2010 The American Supreme Court, 5th edition. Chicago IL: University of Chicago Press, 359 pages.

　　Mitoma, Glenn 2013. Human rights and the negotiation of American power. Philadelphia: University of Pennsylvania Press, 226 pages.

　　Opeskin, Brian and Enyinna Nwauche 2013. “Constitutions, population, and demographic change.” In Tushnet ed., 455-468.

　　Powe, L. A. Scott 2009. The Supreme Court and the American elite, 1789-2008. Cambridge MA: Harvard University Press, 421 pages.

　　Raskin, James B. 2003. Overruling democracy: The Supreme Court vs. the American people. New York: Routledge, 290 pages.

　　Rosen, Jeffrey 2006. The most democratic branch? How the courts serve America. New York NY: Oxford University Press, 256 pages.

　　Rosenfeld, Michel and Andeas Sajo eds. 2012. The Oxford handbook of comparative constitutional law. Oxford UK: Oxford University Press, 1396 pages.

　　Sabato, Larry 2007. A more perfect constitution: 23 proposals to revitalize our constitution and make America a fairer country. New York NY: Walter, 342 pages.

　　Seidman, Louis Michael 2012. On constitutional disobedience. New York NY: Oxford University Press, 162 pages.

　　Skowronek, Stephen 1982. Building a new American state: The expansion of national administrative capacities, 1877-1920. New York NY: Cambridge University Press, 389 pages.

　　Skowronek, Stephen 1993. The politics presidents make: Leadership from John Adams to George Bush. Cambridge MA: Belknap Press, 526 pages.

　　Sunstein, Cass R. 1999. One case at a time : judicial minimalism on the Supreme Court. Cambridge MA: Harvard University Press, 290 pages.

　　Sunstein, Cass R. 2001. Designing democracy: What constitutions do. New York NY: Oxford University Press, 280 pages.

　　Sunstein, Cass R. 2004. The second bill of rights: FDR’s unfinished revolution and why we need it more than ever. New York NY: Basic Books, 294 pages.

　　Tushnet, Mark 1999. Taking the Constitution away from the Courts. Princeton NJ: Princeton University Press, 242 pages.

　　Tushnet, Mark V. 2005. A Court divided: The Rhenquist Court and the future of constitutional law. New York NY: Norton, 384 pages.

　　Tushnet, Mark V. 2006. “The Supreme Court and the national political order: Collaboration and confrontation.” In Kahn and Kersch eds., 117-137.

　　Tushnet, Mark V. (general editor), Thomas Fleiner and Cheryl Saunders eds. 2013. Routledge handbook of constitutional law. Oxon UK: Routledge, 503 pages.

　　Ward, Kenneth D. and Cecilia R. Castillo eds. 2005. The judiciary and American democracy: Alexander Bickel, the countermajoritarian difficulty, and contemporary constitutional theory. Albany NY: State University Press of New York, 198 pages.

　　Whittington, Keith E. 1999. Constitutional construction: Divided powers and constitutional meaning. Cambridge MA: Harvard University Press, 303 pages.

　　Whittington, Keith E. 2007. Political foundations of judicial supremacy: The presidency, the Supreme Court, and Constitutional leadership in U.S. history. Princeton NJ: Princeton University Press, 303 pages.

　　Zackin, 2013. Looking for rights in all the wrong places. Why state constitutions contain America’s positive rights. Princeton NJ: Princeton University Press, 234 pages.

　　Zeisberg, Mariah 2013. War powers: A political theory of Constitutional judgement. Princeton NJ: Princeton University Press, 288 pages.

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　　THE SCHEME OF THIS BLOG

　　DIMENSIONS OF POSTS

　　Importance of Post: ***** Big development. **** Small development. *** Continuing trend.

　　Scope of Post: USA only. USA-PRC. USA-other.

　　Type of Process: Elite power struggle. Elite policy politics. Mass participation.

　　Type of Treatment: Current commentary. Comprehensive background. Academic analysis.

　　DIMENSIONS OF POLITICS

　　Policy Sectors: Security. Economy. Identity

　　Spatial Levels: Supranational. National. Subnational

　　Temporal Periods: Shortrun. Midrun. Longrun

　　STANDARD TOPICS (BIAOQIAN)

　　SECURITY

　　Defense

　　Diplomacy

　　Intelligence

　　Presidency (national security team)

　　Homeland security

　　State coercion: Police & Prisons

　　Citizen violence: Collective riots & Individual harm

　　ECONOMY

　　Climate change

　　Trade & Investment

　　Fiscal policy

　　Macroeconomy

　　Energy & Environment

　　Business

　　Employment & Income

　　IDENTITY

　　Propaganda

　　Immigration

　　Ideology

　　Race & Ethnicity

　　Gender & Age

　　Moral regulation

　　Alternative lifestyles

　　SUPRANATIONAL

　　Global

　　United Nations

　　International regimes

　　Subglobal regions

　　Major foreign powers

　　Neighboring countries

　　Cross-border regions

　　NATIONAL

　　Legislature & commissions

　　Executive & bureaucracy

　　Judiciary & Constitution

　　Parties

　　Interests & advocates

　　Media

　　Public opinion

　　SUBNATIONAL

　　Subnational regions

　　States

　　Metropolitan regions

　　Cities

　　Counties

　　Communities & Associations

　　Citizen participation (elections, activism)

　　SHORTRUN (Current dynamics)

　　This week

　　Past few weeks

　　Next few weeks

　　Past few months

　　Next few months

　　Past few years

　　Next few years

　　MIDRUN (Foreseeable future)

　　Variables

　　Cycles

　　Generations

　　Regime shift

　　Transformations

　　Regime change

　　Parameters

　　LONGRUN (History, evolution)

　　American political development

　　Comparative political development

　　Longrun economic growth

　　Longrun social history

　　Longrun cultural change

　　Major civilizations

　　Human evolution