What is a constitution?
Efforts to gut independent US federal agencies risks destroying long-term constitutional and rule of law commitments
A note to readers: events in the US in the past month have been dizzying and disorienting for supporters of the rule of law. Rather than commenting on the daily flurry of news, I’m going to try to relate developments to what we already know about what the rule of law means, how it develops and is sustained, and how to restore it after it is breached.
Recent developments in the US are distinctive but not unique. There is much we can learn both salutary and cautionary from experiences of other countries. Related is the broader international agenda for rule of law, which has also been thrown into doubt by developments in the US and other countries.
If you agree that these ideas are helpful to deliberation on these crucial ideas, please try to share this newsletter to spread the word. Thank you.
What is a constitution?
In democratic political theory the notion of the consent of the people in the creation of governments is central. John Locke famously developed the concept of the social contract as foundational to government and Rousseau envisaged the “general will” of the citizenry as the basis for political order. Many political theorists have understood these abstract ideals as taking on concrete form through national constitutions.
The concept of a founding moment in the development of constitutions is a tangible way to capture the point where popular sovereignty becomes codified in a document. In a sufficiently representative and deliberative drafting process, we take it for granted that the outcome has a degree of democratic legitimacy. Yet this understanding raises some important theoretical problems.
The input of a polity in the adoption of constitutions may be seen as consistent with the people’s will at the time of its adoption, but articulating why constitutions have purchase on subsequent groups of citizens’ beliefs and values is less clear. Why are constitutions considered sources of democratic political legitimacy decades or even centuries after adoption?
Long-term constitutional strengthening
Different political theorists have attempted to answer this challenge in varied ways. A common basis for their thinking about this issue concerns subsequent action of governments. Rather than thinking of the constitution as written in stone and representing the entirety of the political system, we need to consider the ways in which the constitutional order is continually revisited, modified, elaborated, and strengthened over time. Through these processes, a form of constitutional thickening occurs following institutional accretions and public law enactments that build on earlier norms and values.
This concept of the living constitution is well developed in legal theory, notably in the work of Bruce Ackerman. He envisages multiple constitutional moments, occurring over time in the United States. A paradigmatic example of this notion is post-US Civil War adoption of constitutional amendments, which eliminated slavery and mandated equal rights for African Americans among other groups. Yet as Ackerman argues, throughout subsequent centuries constitutional changes have not been limited to actual amendments of the founding document but have also involved other statutory and institutional reforms which have supplemented and expanded constitutional understandings.
This notion of an evolving constitution can be seen even more clearly in the UK with its unwritten constitution that has emerged through successive parliamentary enactments over centuries.
This understanding of evolving constitutional orders helps explain the resilience of advanced democratic states. Over time, the legitimacy of political systems is reinforced through successive enactments that build on existing norms to strengthen basic constitutional order. In many countries, changes to public law have gradually strengthened constitutional order and reinforced the rule of law. Examples include the creation of audit bodies, transparency laws, parliamentary oversight committees, and administrative procedures.
These types of enactments are not constitutional enactments per se but serve to reinforce constitutional standards by enhancing basic values such as checks and balances.
Defending shared commitments
Current efforts of the Trump Administration to dismantle the administrative state in the US would destroy the political achievements of generations of political actors from all parties who agreed to these enactments.
The assertion of the Trump Administration that the scope of Presidential power allows the executive to oversee and control the activity of independent agencies repudiates the idea that Congress can act in ways that can refine and strengthen constitutional protections.
Despite Congress repeatedly enacting laws with Presidential assent that created independent sources of accountability in government, the administration contends that all such measures must now be subjugated to total presidential power over the executive branch. This view also discounts completely the legitimacy of these enhanced checks and balances, which have met with the assent of generations of citizens, lawyers, judges, legislators, and presidents. Because the voters chose this President in November 2024, it is reasoned, more than a century of institutional reforms can be discarded at his whim.
The types of constitutional reforms that occur over time have formed the basis for dramatic expansion in the economy and social protections, which have been accepted by generations of Americans. The extent to which the Trump Administration’s efforts will succeed depends on many ongoing legal challenges. What is clear is that restoring the US constitutional order in this broader sense will require long term efforts to build trust and reestablish a basic shared sense of government’s scope and purpose across the political divides.