<nettime> After the Overturning: Neil Siegel on the Future of Constitutional Norms

[patrice@xs4all.nl]

Aloha,

Declining respect for, or even active awareness of its existence and purpose, is not an uniquely American phenomenon, it is also widespread in Europe, as can be seen in the behaviour of the ilk of Boris Johnson, Hungarian and Polish prime ministers & presidents, but also in a more discreet and insidious - yet no less dangerous - ways among even liberal political leaders and lawmakers. The future does not look bright for the rule of constitutional law, and hence, very directly, for our collective and individuals freedoms. Unless ....

Ciaoui, p+2D!
(fans of 'Italiani, di Costituzione';-)


Abstract of the Chapter: "The Trump Presidency, Racial Realignment, and the Future of Constitutional Norms" (*)


This chapter in a forthcoming volume, Amending America’s Unwritten Constitution (Cambridge University Press) (Richard Albert, Yaniv Roznai, & Ryan C. Williams eds., forthcoming 2021), asks into the likely implications of the Trump Presidency for the future sustainability of constitutional norms in the United States. It observes that what counts as a persuasive answer to that question turns primarily on why politicians’ respect for constitutional norms has been declining, and it argues that President Donald Trump is more of an effect (and a symptom) than a cause of the decline. Specifically, he is more of an effect than a cause of larger racial and cultural changes in American society that are causing Republican voters and politicians to perceive an existential threat to their continued political and cultural power—and, relatedly, to deny the legitimacy of their political opponents. As illustrated by the conduct of Republicans in Congress and statehouses, it is very unlikely that Republican politicians will respect constitutional norms when they deem so much to be at stake in each election and significant governmental decision. Moreover, Democratic politicians, now that they fully control the political branches, may begin a campaign of retaliation that will include violations of norms.

As a result, one should expect continued violations of constitutional norms by American politicians to accomplish partisan goals—what Mark Tushnet has called “constitutional hardball”—at least until the electoral impact of demographic changes in the electorate exceeds the electoral impact of the rural favoritism that is built into the nation’s constitutional electoral processes. The Republican Party has likely been able to hold on to so much power without moderating for as long as it has primarily because of that rural favoritism. At the same time, the results of the 2020 elections indicate that the country is not nearly as liberal as the most liberal members of the Democratic Party may believe, so the party may remain under pressure to stay relatively moderate. Demography is not destiny, as the increase in Latino support for Trump in 2020 suggests, and the education-level divide may continue to play a significant role in party configurations in the years ahead.

At some point, however, the Republican Party may face a choice between losing most national elections and significantly broadening its appeal beyond racial, religious, cultural, and economic conservatives. Broadening the tent may again make it possible for the leaders of the Republican and Democratic Parties in the White House, Congress, and statehouses to sustain constitutional norms, but this time while sharing a commitment to racial equality. The sobering historical reality, discussed in this chapter, is that the leaders of the two parties have never been able to sustain norms and work together over a significant period of time when they have been divided over race. Put differently, the racial reckoning in the United States that continues to unfold as this chapter goes to press is likely responding in part to a history in which norm compliance and legislative cooperation among politicians in the two parties came largely at the expense of black people, who were not in “the room where it happened” when fateful compromises were forged.

Neil Siegel clerked for the deceased progressive Supreme Court Justice Ruth Bader Ginsburg, and is now professor of public & constitutional law at Duke University

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(*) in: Amending America's Unwritten Constitution (Richard Albert, Yaniv Roznai, & Ryan C. Williams eds., Cambridge University Press, forthcoming 2021)
(Duke Law School Public Law & Legal Theory Series No. 2021-03)
rec Dec 2020 rev: May 2021)
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