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The Original Theory of Constitutionalism D AVID SINGH GREWAL & JEDEDIAH PURDY The Original Theory of Constitutionalism The Sleeping Sovereign: The Invention of Modern Democracy BY RICHARD TUCK CAMBRIDGE UNIVERSITY PRESS, 2016 authors. Professor of Law, Yale University, and Robinson O. Everett Professor of Law, Duke University. The authors wish to thank Bruce Ackerman, Akhil Amar, Jack Balkin, Daniela Cammack, Sandipto Dasgupta, Stefan Eich, Daniel Herz-Roiphe, Jeremy Kessler, Madhav Khosla, Michael Klarman, Sanford Levinson, Pratap Bhanu Mehta, Lev Menand, Bernadette Meyler, Sam- uel Moyn, Isaac Nakhimovsky, Robert Post, David Pozen, Aziz Rana, Jed Rubenfeld, Stephen Sachs, Melissa Schwartzberg, Neil Siegel, Reva Siegel, Lawrence Solum, Mark Somos, Richard Tuck, and the editors of the Yale Law Journal for helpful comments and criticisms. All errors remain the authors’. 664 the original theory of constitutionalism book review contents introduction: constitutionalism and democratic authority 666 i. the political theory of modern constitutionalism 669 A. Premodern Politics 671 B. Thomas Hobbes 673 C. Jean-Jacques Rousseau 675 D. The Revolutionary Generation 677 ii. the constitutional paradox 681 A. Popular Authorship and Present Consent 683 B. Univocal Sovereignty 686 C. Multitudinous Constitutionalism 688 iii. living with article v 691 A. The Curious Twinning of Originalism and Living Constitutionalism 692 B. Governmental Sovereignty 696 C. Democracy Without Sovereignty 698 1. Putting Governmental Democracy First 699 2. An Objection: Does Sovereignty Matter Today? 701 D. Refining Judicial Reason 702 conclusion 704 665 the yale law journal 127:664 2018 introduction: constitutionalism and democratic authority The conflict between various versions of “originalism” and “living constitu- tionalism” has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinc- tions, each one also returns to a core concern: the democratic authority of con- stitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance . who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”1 The concern voiced by Scalia is, in a word, usurpation—the arrogation of the right to rule by the judiciary, invoking the authority of the Constitution’s “We the People,”2 but responding, in fact, to the vicissitudes of present-day party politics, social movements, and what Scalia once famously called “Kulturkampf.” 3 On the living-constitutionalist side, the core concern is the Constitution’s legiti- macy in the eyes of those it rules today. Here, too, it might be said that the ques- tion remains “who it is that rules me.” But living constitutionalism holds that “my Ruler” cannot legitimately be the mummified hand of those who ratified constitutional text long ago, when “the people” was restricted to adult white males (and o�en to property holders) and formal discrimination on racial and other grounds was widespread. Whatever “equal protection” or a “right of the people” might have meant to their ratifiers, the argument goes, legitimacy re- quires that they be acceptable to a twenty-first century polity when they are in- voked today to weigh the constitutionality of state action. Usurpation of past lawmaking by present-day interpreters, or the tyranny of the dead over the living: this dilemma has seemed insoluble. In acknowledging the appeal of the contending positions, scholars and judges have staked out and criticized a variety of compromise formations, including “living originalism,”4 “faint-hearted originalism,”5 and versions of “democratic constitutionalism” in 1. Obergefell v. Hodges, 135 S. Ct. 2584, 2627 (2015) (Scalia, J., dissenting). 2. U.S. CONST. pmbl. 3. Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting) (emphasis added). 4. See, e.g., JACK M. BALKIN, LIVING ORIGINALISM 3-73 (2011) (setting out the basic position of “living originalism”). 5. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 862 (1989) (de- scribing “faint-hearted originalist[s]” and “moderate” non-originalists). 666 the original theory of constitutionalism which the demos is conceived of as arguing over the meaning to be given today to the inherited text of fundamental law.6 For all the attention to the legal culture and linguistic practices of the Found- ing Era that has resulted from the prominence of originalism,7 comparatively few scholars have focused on the original idea of constitutionalism. What legal and political significance did the act of constitution-making have for the dra�ers and ratifiers of the U.S. Constitution (and, earlier, the state constitutions)? How might that historical understanding illuminate today’s debates, not just over the nuances of interpreting the constitutional text, but also over political legitimacy in a constitutional order? Richard Tuck’s The Sleeping Sovereign is not a work of constitutional theory, but rather a careful historical reconstruction of the “invention” of modern de- mocracy—including, centrally, a discussion of the authority that popular consti- tution-making was understood to have at the Founding.8 Nonetheless, its impli- cations for contemporary constitutional debates are arresting. In a work that contains only a few tentative closing words about the last century-plus of con- stitutionalism, Tuck shows that today’s originalism, for all its talk of fidelity to law’s origins, is profoundly unfaithful to the very theory of constitutional self- rule on which it made best sense in the first place. If today’s originalism contradicts its own commitment to constitutional self- rule, though, living constitutionalism fares little better. Tuck’s reconstruction shows that the original purpose of constitution-making was to enable the people themselves to author their fundamental law, rather than leaving that legislation to the decisions of government officials and well-connected elites. Tuck’s account makes it difficult to avoid the conclusion that today’s living constitutionalism fails in both theory and practice to avoid de facto constitutional lawmaking by officials and elites, fairly inviting familiar charges of usurpation—just as today’s originalism fairly invites charges of upholding the tyranny of the dead. 6. See, e.g., Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 374-76 (2007) (describing the political and cultural dynamics of “democratic constitutionalism”); Lawrence Solum, Originalist Methodology, 84 U. CHI. L. REV. 269 (2017) (offering an exceptionally subtle and nuanced account of originalist interpreta- tion). 7. On the turn to history that accompanied originalism, see Jack M. Balkin, The New Originalism and the Uses of History, 82 FORDHAM L. REV. 641, 655-58 (2013); and Laura Kalman, Border Patrol: Reflections on the Turn to History in Legal Scholarship, 66 FORDHAM L. REV. 87, 87-89 (1997). 8. RICHARD TUCK, THE SLEEPING SOVEREIGN: THE INVENTION OF MODERN DEMOCRACY (2016). 667 the yale law journal 127:664 2018 This dilemma is not contingent but rather is deeply rooted in the U.S. Con- stitution. Both originalism and living constitutionalism ultimately fail to recon- cile constitutional authority with popular sovereignty, owing to the way in which the Constitution both emerged from the tradition of democratic sovereignty and betrayed it. This produced a political community that is at once committed to ruling itself and unable to do so.9 The image of Tuck’s title—the “sleeping sovereign”—expresses the crux of this dilemma. Thomas Hobbes argued in On the Citizen that, when a sovereign is asleep, his ministers do not take over his sovereignty. Their role is simply to carry out orders he issued before nodding off—a role that would include issuing commands in his name on quotidian matters in line with past commands.10 By implication, in a democratic regime, the sovereign people can be said to act through plebiscitary initiative and then “go to sleep,” leaving the “government” (which would include, in the United States, the Supreme Court) to administer its fundamental law.11 But the U.S. Constitution no longer works from the point of view of popular sovereignty. It is now so difficult to amend under Article V that our popular sovereign is hardly able to stir, let alone issue lucid new com- mands.12 Government officials must accordingly interpret increasingly remote constitutional text, or else must incorporate changing norms and the demands of social and partisan movements that do not rise to the level of unambiguous sovereign lawmaking (and, to continue with the Hobbesian imagery, amount to no more than the sovereign’s drowsy mumblings). American constitutional prac- tice thus emerges as an especially vexed engagement with the fundamental prob- lem of modern democracy: how an intermittently assembled democratic sover- eign can both authorize and discipline the government that legislates and otherwise rules on its behalf in the interim. 9. In advancing this argument, we are in line with earlier diagnosticians of the incapacity of con- stitutional argument to do what is asked of it without special pleading and bad faith. See SAN- FORD LEVINSON, CONSTITUTIONAL FAITH (1988); David E. Pozen, Constitutional Bad Faith, 129 HARV. L. REV. 885, 886-90 (2016). We go where those earlier arguments have not in two ways. We ground the possibility of good-faith appeal to a sovereign people in an ongoing practice of specifically sovereign lawmaking, and we root the central dilemma of American constitutionalism in the brief flowering and subsequent disappearance of such lawmaking. 10. TUCK, supra note 8, at 89 (citing THOMAS HOBBES, ON THE CITIZEN 99-100 (Richard Tuck & Michael Silverthorne, eds., Cambridge Univ. Press, 1998) (1642)). 11. For a discussion of Hobbes’s arguments, see id. at 86-90, and for a discussion of their impli- cations for democratic constitutionalism, see id.
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