What Is A Constitutional Principle?
The debate over whether President Bush’s tax cuts should be extended raises an interesting point about what constitutional law is. Ordinarily, we think of it in terms of judicial doctrine. Sometimes we think of it in terms of institutional practices that are textually committed to the other branches. We usually do not think of the “Constitution,” though, in terms of substantive principles that are binding even though they are not based on the text or on court decisions.
Let me give you some examples. Andrew Jackson destroyed the Second Bank of the United States. For the rest of the 19th century, the idea of a central bank was a non-starter even though M’Culloch was not overruled. This was a more powerful constraint on elected officials than many so-called constitutional principles (such as the Reconstruction Amendments, for instance). Likewise, the gold standard became a fixed point after William Jennings Bryan’s defeat in 1896. As I’m trying to explain in the article I’m working on about The Gold Clause Cases, this is why FDR’s decision to take the United States off gold in 1933 proved so difficult for the Justices to sustain (and barely was).
The most important constitutional principle of the Reagan Revolution, I think, is that federal income taxes cannot go up much beyond where they were following the 1981 tax reduction (“Kemp/Roth”). Obviously that is not something you would take up in a court or teach in a normal con law class. (Though when I tell my students that the top bracket was 90% during the 1950s, they think I’m joking.) Nevertheless, it is an incredibly powerful constraint on public policy, reinforced by the popular mandate delivered against Walter Mondale in 1984 when he campaigned on raising taxes. Despite President Obama’s victory in 2008 and his large (though soon-to-be-nonexistent) congressional majorities, he has never advocated anything other than a marginal increase in tax rates (and might not even end up doing that). It’s a far cry from the days of “Spend and tax, tax and spend, elect and elect,” which was Harry Hopkins slogan to describe the New Deal.