James W. Ceaser on the Constitution
By Arnold Kling
Legalistic constitutionalism refers to formulas and rules. It makes one think immediately of lawyers and judges spinning elaborate constitutional doctrines and devising multi-pronged “tests.” Like ancient Egyptian priests, these legal experts speak an occult jargon that few citizens can grasp. Political constitutionalism, by contrast, is premised on the view that much, even most, of what determines whether the Constitution is being respected stems from the accumulation of ordinary policies on issues ranging from education to energy and to the environment. The real work of defending the Constitution accordingly falls to statesmen and parties acting in the political realm and by political means; they must embrace positive programs to protect the Constitution that go well beyond anything that courts could determine.
…Commentators on both sides [of the Constitutional challenge to Obamacare] have begun to speak of a “landmark case” that will define federal power. Here we see all the limitations of legalistic constitutionalism. Does it not seem odd that the “great” constitutional question focuses on an avoidable point, while the main substantive matter–whether the federal government could tax individuals in this way, or, even more importantly, whether the federal government can take full control of this area of economic and social activity–need never have raised a serious constitutional issue? Doesn’t this way of looking at matters trivialize the Constitution, as if it were concerned more with procedural rules than with broad ends?
The point here is not to criticize questioning the legal basis of the individual mandate, which surely is an important matter. It is instead to remind Americans that this legal aspect of the policy is just one dimension of constitutionalism. If the legal question alone is thought to determine constitutionality (which is the dominant way of thinking), and if the Court holds the law to be constitutional, no space is left afterwards for questioning the constitutionality on the basis of another, larger criterion. With so many people now having bought into a legalistic understanding of constitutionalism as the criterion of constitutionality, conservatism would have suffered a devastating blow: everything liberal would be constitutional.
Read the whole thing. For extra credit, consider the analogy of Ceaser’s distinction between legalistic Constitutionalism and political constitutionalism with my distinction between bright-line regulation and principles-based regulation.