Calls for Popular Constitutionalism in the Rear-View Mirror

Suggestions that the Executive Branch Ignore Federal Court Rulings May Look Different Today than When They Were Proposed.

In 2023, Mark Tushnet and Aaron Belkin published an "Open Letter to the Biden Administration on Popular Constitutionalism" making recommendations on how the Biden Administration should respond to the "not . . . normal" Supreme Court. It read in part:

We urge President Biden to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations. . . .

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court's interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President's interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln's refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

The premise of this letter was that the Supreme Court's conservative jurisprudence is and would be at odds with popular opinion, and that the political branches could enlist popular support to resist the Court's decisions. However true that premise was at the moment the letter was written, it was a grave error to assume that premise would hold. Today courts will be called upon to constrain MAGA initiatives, and there will be pressure for the Trump Administration to resist decisions that do not go its way. (And, if the first term is a harbinger of things to come, there will be many such decisions.)

President Biden never heeded Tushnet and Belkin's advice. Can we be so sure that a Trump Administration will be so reticent? Particularly in areas on which the administration was quite clear about its intentions during the campaign, such as immigration, does popular constitutionalism lead in the direction Tushnet and Belkin want it to go?

This is not the first time Tushnet has suggested breaking norms to advance progressive aims, only to find it is conservatives (not progressives) who are poised to act on Tushnet's recommendations. Recall how he suggested the Supreme Court should abandon a "defensive crouch" posture once Justice Scalia's replacement was confirmed.

These episodes remind us that opportunistic calls to abandon norms can be quite short-sighted--sometimes dangerously so.

Comments

[Noscitur a sociis]

These episodes remind us that opportunistic calls to abandon norms can be quite short-sighted--sometimes dangerously so.

What a cuck!

[TwelveInchPianist]

I dunno. I think he makes some good points.

[Stupid Government Tricks]

I think that was sarcasm. I think you need to adjust your sarcasometer.

[Alpheus W Drinkwater]

Pot, meet kettle!

[Bored Lawyer]

Someone should come up with pithy saying about this. Maybe involve waterfowl, and male and female of the species.

[Noscitur a sociis]

That is, I’m pretty sure, the precise opposite of Prof. Adler’s point.

[mike petrik]

You are right of course, but so is Bored Lawyer. Adler seems have the wrong starting place of the tit for tat he worries about.

[JoeFromtheBronx]

"including Abraham Lincoln's refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential power"

He argued that a single opinion, especially one not only based on wrongful constitutional facts but handed down by a divided court for which the core binding content was unclear, would not by itself bind him. It would receive a high degree of respect, and it clearly binds the parties. If it received repeated affirmance, it would be a different situation. So, for instance, the birthright citizenship ruling of 1898 is not "Dred Scott."

Anyway, yes, popular constitutionalism can be a two-pronged sword. Without agreeing with it, I would note they said it "requires support from members of Congress and the public generally."

And, long term, that is what will decide matters. For instance, in my view, 14A, sec. 3 and the rule of law was overridden by Supreme Court opinions. The ultimate test, however, was not the Supreme Court. It was what Congress, and the people (in November 2024) decided to do.

[JoeFromtheBronx]

Also, I'm unsure what "opportunistic calls to abandon norms" entail.

Popular constitutionalism argues for a general "norm" based on principle.

Also, sometimes, special circumstances arise where exceptions or changes are warranted. There is even a norm accepting that.

[y81]

Mark Tushnet's professional career has been marked by spectacularly bad timing. It would be good to assume, if you are a betting person, that whenever he suggests going on the offensive, a major defeat for his side is imminent.

[Doug Heffernan]

At least we know that if the Musk administration ignores court rulings and/or the constitution, it will all be some progressive academic's fault.

[Jerry B.]

To make the process easier, I’ve decided that when anything at all goes South, it will be some progressive academic’s fault.

[Dan Schiavetta]

“These episodes remind us that opportunistic calls to abandon norms can be quite short-sighted--sometimes dangerously so.”

What they actually illustrate is that conservatives are willing to break norms and liberals are not.

[The Margrave of Azilia]

But just to make sure, charging them for any norms they violated after 2014 will not be allowed.

[Bruce Hayden]

After 12 years of Dems breaking norms, through Obama’s three terms of office, this is rich. We had almost a quarter of a millennium of incoming Administrations not trying to jail their predecessors with LawFare fabricated prosecutions. That norm changed under Biden. We had the Intelligence Community staying out of partisan fights. That changed under Obama. Presidents had effectively retained their security clearances as a curtesy. Yanking Trump’s was essential for the FL documents case to work, so Biden’s and his Secretary of State’s security clearances have been revoked, as well as those of the 51 national security officials who engaged in election interference in 2020, claiming that Hunter’s laptop wasn’t his. Etc.

[David Nieporent]

Gee, I wonder why people call you a liar.

[MollyGodiva]

However Biden did not take that advice and he did abide by SCOTUS rulings.

[Satchmo_Lives]

I guess student loans do not count because it was unpopular constitutionalism?

Many dems stated Biden didn't have the authority to forgive student loans. He did it anyway. When SCOUS rules he, in fact. does not have the authority he did it anyway.

[MollyGodiva]

SCOTUS said he did not have authority to forgive student loans in the particular way that he did. So Biden used other methods that had a stronger legal basis. That was fair.

Also the court was 6-3, so it was not an unreasonable tactic for Biden to use. The law was ambiguous.

[Bruce Hayden]

That’s plain silly. 6-3 is a significant defeat, strongly suggesting that the Court strongly opposed his actions. Or do only Dem votes count in your mind?

[Bruce Hayden]

Mark Tushnet and Aaron Belkin Seem to have forgotten that Trump is a master persuader, and they no longer have control of the narrative, or even the media. Being popular with left wing law professors loses its effect when someone like Trump can get his message through. The American people see them more and more as coddled left wing partisans with cushy jobs and law degrees (that most here probably also have).