Gary Jeffrey Jacobsohn—
Recently a United States Senator, reflecting on the terrible crisis we all now face, recalled an earlier time when the nation confronted an existential threat to its governing institutions. Said Senator Edward Markey of Massachusetts: “I do think there’s an FDR moment.” Presumably what he meant was that major changes in how we think about the way we conduct the people’s business should now be on the table. Such changes occurred in the wake of the Great Depression, none of them requiring a modification of the Constitution. But with interpretive adjustments in the jurisprudential thinking of the Supreme Court, the document was rendered serviceable for legitimating a fundamental transformation in the role of the federal government, as exemplified in the reform of the financial system and the provision of social security. The term “New Deal Revolution” entered our political vernacular. But was it a constitutional revolution?
The answer depends on what we mean by a reference that has been generously applied to all manner of transformations that are dissimilar in significant respects. My understanding of the idea suggests that it requires a paradigmatic displacement in the conceptual prism through which constitutionalism is experienced in a given polity. It also requires that we distinguish its characteristics from those that come more readily to mind when we think of the more generic political revolution. For example, an illegal transformation is not determinative for establishing the existence of a constitutional revolution; such a revolution may occur within legal parameters. As such, there is good reason to apply the appellation to the New Deal.
Recent events in other countries illustrate the type of transformation denoted by the term constitutional revolution. In Hungary, a new emergency law was rammed through the Parliament providing Prime Minister Victor Orba’n with what amounts to unlimited decree power. In Germany, the electoral success of the extreme right-wing AfD party in regional balloting sent shock waves through the nation’s mainstream political establishment. In India, the Hindu nationalist government of Prime Minister Narendra Modi adopted a controversial citizenship law that ominously marginalized Muslims and called into question the secular commitments of the regime. In Israel, after three inconclusive elections in a span of twelve months, a caretaker government headed by Prime Minister Benjamin Netanyahu moved to solidify its power by invoking the nation’s health crisis to impose draconian emergency regulations, and the Speaker of the national Parliament refused to obey an order of the High Court of Justice to allow a vote for his replacement. All of these developments offer us ample opportunity to pursue conceptual clarity in the way we depict constitutional change, specifically that species of change that entails significant breaks or departures in the workings of the constitutional order.
Of course, overshadowing any of the specific happenings in these countries is the presence of the coronavirus pandemic. With Senator Markey’s FDR comment in mind, how might a constitutional revolution occur in the United States within legal boundaries? The question arises in light of the widely perceived failure of the American response to the health and economic emergency. For example, on May 2 Michelle Goldberg wrote in the New York Times, “As we approach this year’s election, we’re looking at an abyss. The question is what will fill it. Societal disaster can have horrific political consequences: Around the world, despots are using the pandemic as an excuse to grab ever more power. But the need to rebuild the country comes with opportunities.” To the degree that a felt need to rebuild is taken to mean reconstitute, what form might it take?
First, it could be triggered by a reaction to a New Deal-like judicial decision that heightened, rather than addressed, the urgency of the crisis. Suppose the conservative majority on the Supreme Court were to decide a case presenting an enticing opportunity to accomplish what several of the justices have hinted at in recent rulings: a radical curtailment of the powers of the federal government to administer policies of national scope and import. By reviving the “nondelegation” doctrine, such a move could, as Justice Elena Kagan has opined, render “most of government . . . unconstitutional.” If that were to come to pass, it would, among other things, call into question the legality of a national scheme to respond to a pandemic, the one we’re in now or some future contagion.
While such a judicial effort would surely provoke a strong, perhaps even radical, political reaction, one needn’t depend on an activist Court to envisage a COVID-inspired course of events culminating in a constitutional revolution. So now imagine that a broad consensus were to emerge that the horrific virus-related devastation in the US was attributable in no small measure to the gross inadequacies of existing constitutional structures of power. One major change that could occur from within the normal lawmaking process would be the installation of proportional representation and multimember districts, requiring only an act of Congress. But to even imagine the replacement of an archaic scheme of representation by its very beneficiaries strains credulity; so consider its adoption through the route prescribed in Article V, whereby a Convention to propose amendments can be called into being. Add to this an amendment that would replace the Electoral College with direct election of the president, and another that would provide for public financing of all elections (and a provision for federal supervision of all national and state elections). And lest we forget the most glaring deficiency revealed by the 2020 national trauma, how about an amendment that guaranteed health care to all along the lines of the system deployed by the American neighbor to the north? These changes would entail fundamental transformation of the practice of American constitutionalism, albeit through an entirely lawful series of events. In other words, a constitutional revolution.
But wait. Constitutionally driven change often occurs during an extended period of time when revolutionary aspirations are consolidated after determined and sustained obstructionist efforts by those wedded to the antecedent way of conducting constitutional business. If our imaginings have gotten us this far, they will need further flights of fantasy to see how the story ends. I invite readers to join me in such musings.
Gary Jeffrey Jacobsohn is the H. Malcolm Macdonald Professor of Constitutional and Comparative Law in the Department of Government at the University of Texas at Austin.