Constitutional Text and the Role of Elites

Joey Fishkin’s post on Jack’s book poses a fascinating and provocative question: “Is this book really about faith in something like the project of the United States — its ideals, its promise, its commitments, its possible future redemption — rather than just the Constitution?”  Joey himself questions whether the dichotomy he draws is a false one, whether American ideals are inseparable from constitutional commitments.  Joey’s comments force us to contemplate whether the constitutional text itself is less important (perhaps not important at all) as compared to the stories of American development and identity that we tell one another.  In this post, I want to take up Joey’s questions and seriously consider how important (if at all) text is to the project of constitutional redemption.

As Joey notes, Jack has much to say about the role of constitutional text: “The text — and the grand statements of principle found in the text — play a crucial role in this constitutional culture.  The text is public.  Anyone can pick up the text, read it, and use it in argument.  Anyone can refer to the principles of due process, or equal protection, the separation of powers, federalism, freedom of expression, or freedom of religion.  A written Constitution that anyone can read and comment on encourages a culture of participation in constitutional argument and a popular sense of ownership in the Constitution[.]” (p. 236, emphasis added)  Jack goes on to argue for the democratizing role of the constitutional text.  The text, which is open and accessible, “authorizes people from all walks of life to claim the right to interpret it.” (p. 237).  Jack connects this reliance on text to his theory of framework originalism; a focus on constitutional text and principle “bridges the gap between laypersons and legal professionals.” (p. 238)

But instead of focusing on “anyone,” let’s focus on elites and situate them as key players in the process of textual meaning and translation.  I want to suggest that Jack’s argument about text as a democratizing and participatory vehicle relies on the importance of textual mediation, largely undertaken by (legal and non-legal) elites.  That is, while we may on rare occasions observe an idealized notion of laypersons reading and invoking the constitutional text, the more common way in which constitutional text is taken up and proclaimed by ordinary citizens relies on a process in which elites — government officials, social movement advocates, cause lawyers, policy elites, cultural leaders — apply constitutional principles (and their textual grounding) to laypersons’ struggles.

Jack consistently recognizes the role of elites in constitutional culture.  He notes that social movements attempt to “change attitudes (especially elite attitudes) about what the Constitution means.” (p. 63)  He argues that “[t]he characterization of positions along the spectrum of plausibility is affected by the beliefs and actions of importantly placed individuals and groups.” (p. 182)  Whether certain constitutional arguments move from off-the-wall to on-the-wall depends on “the willingness of certain members of the bar, or certain important political figures, to support a particular position and put their credibility or authority behind it.” (p. 182)

Combining the emphasis on elite influence and attitudes with the democratizing function of constitutional text leads to a more measured conclusion about constitutional change and the accessibility of constitutional text.  As Jack notes, “Not every person in a legal culture has the same degree of influence and authority in shaping constitutional common sense.  Some people’s opinions matter greatly because they are a sitting Supreme Court justice, because they are an important opinion leader, or because they are a key member of a rising social movement or a dominant political party.” (p. 182)

Elites often rely on constitutional text and principle to make arguments about constitutional development, social change, and American identity.  When LGBT activists, including legislative advocates and cause lawyers, frame the right to marry as a fundamental constitutional right, they rely on judicial interpretations of constitutional principles of due process.  They invoke a particular constitutional idea — fundamental rights — to mobilize constituents (in the earlier movement development phase) and to convince elites and the public (in the current movement phase).  And they relate the fundamental rights claim to earlier struggles in American history — most notably the struggle over interracial marriage that culminated with the Supreme Court’s decision in Loving v. Virginia.  When these same activists appeal to equality in arguing that domestic partnerships and civil unions will not due, they reference constitutional text announcing the guarantee of equal protection.  And they again appeal to earlier moments in American history that gave content and meaning to those equality principles — most notably the repudiation of “separate but equal” in the race context.

When these activists invoke constitutional text and principle, lesbians and gay men are not rushing to the constitutional text or digging into Loving.  And straight Americans are not checking the activists’ claims against the constitutional text or its interpretation by the Supreme Court.  Instead, these appeals to constitutional text and principle become part of the narrative that forges a lesbian and gay identity and positions LGBT equality as an important struggle in American culture — one of constitutional magnitude.

Constitutional text and principle plays a similar role for the movement opposed to marriage equality (or LGBT equality more generally).  In the immediate wake of the district court opinion in Perry v. Schwarzenegger, a representative from the National Organization for Marriage (NOM) rejected the decision by arguing that the constitutional text nowhere mentions “marriage;”  the fundamental rights claim by LGBT advocates, in other words, lacks constitutional authority.  After nearly every judicial advance on marriage equality, Maggie Gallagher, a leading figure for NOM, hits the airwaves to reject the race analogy, distinguishing the meaning of equality based on race from equality based on sexual orientation (or, for Gallagher, same-sex conduct).  Constitutional text and principle inform NOM’s arguments and, crucially, provide constitutionally grounded reasoning that ground-level constituents can invoke to argue against marriage equality.  Again, without going back to the constitutional text and without reading the Supreme Court’s equality jurisprudence on race, ordinary citizens can invoke constitutional text and principle to argue for their position on LGBT equality and American culture and identity more broadly.

In other words, constitutional text and principle is important to the project of constitutional redemption.  But the relationship between constitutional text and constitutional redemption often does not surface as a direct link in which citizens read the text and invoke it to argue for a particular position.  Instead, elites invoke constitutional text and principle to articulate a social movement vision and convince others to accept that vision as consistent with American (constitutional) identity.

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