The judiciary should not always have the final word on the Constitution and issues important to Americans, argued Daphna Renan during an event last week celebrating her appointment as Harvard Law School’s Peter B. Munroe and Mary J. Munroe Professor of Law. Instead, she said, the U.S. should move toward a more political constitutionalism, which would wrest some of the power from the Supreme Court and share it with democratically elected bodies like Congress.
Renan’s talk, titled “Federal Authority Without Judicial Supremacy,” previewed work she and her colleague, Nikolas Bowie ’14, the Louis D. Brandeis Professor of Law, will publish in a forthcoming book. In her lecture, she argued for “a more political conception of the separation of powers … one grounded in the messy, contingent, provisional practices of Congress and the presidency.”
In introducing Renan’s talk, John Manning ’85, the Morgan and Helen Chu Dean and Professor of Law, said, “In less than a decade as a law professor, Professor Renan has established herself as a leading scholar of the presidency and of constitutional democracy. What makes Professor Renan’s work so powerful and so impactful is that she is able to combine conceptual rigor with a deep grounding in the way institutions actually work.”
Renan noted that much of her work over the past decade has focused on “excavating the features of, and developing a normative argument for, federal authority without judicial supremacy.” Her lecture drew together strands of her work on presidential powers, the separation of powers, and American constitutionalism more generally. She “defend[ed] a commitment to federal authority, or the ongoing development of national constitutional commitments, but without judicial supremacy — that is, without the authority of the Supreme Court to have the final say on what the Constitution means or requires.”
Renan traced “the roots of a more political constitutionalism in the United States to the political abolitionism of the mid-nineteenth century.” She described her current book project with Professor Bowie as drawing on this rich intellectual tradition to develop “a template for a ‘republican’ theory of constitutional government — one that depends on the institutions of representative democracy, rather than the power of a supreme judicial tribunal, to build political equality on the ground.”
Renan drew on the writings of abolitionists ranging from Frederick Douglass, to Gerrit Smith, to Theodore Parker to show a rigorous elaboration of a constitutionalism that rejects the conflation of the Constitution of the United States with its administration by the Court. These abolitionists, Renan urged, rejected not only “the supreme authority of the Supreme Court to say what the Constitution means,” but also “the modes of interpretation being used in the Supreme Court’s decisions,” and advanced instead principles of interpretation of their own.
One of those principles, Renan explained, is “what today we would call a ‘substantive canon of interpretation’ in favor of political equality, or in favor of more egalitarian readings of the Constitution and federal statutes,” which political abolitionists anchored in “egalitarian principles derived from the Declaration of Independence, and reflected in both the Preamble of the U.S. Constitution, and its guarantee of a republican form of government.”
Renan showed, moreover, how ideas that we today associate with Professor James Bradley Thayer were advanced, earlier, by political abolitionists like Frederick Douglass, who urged in 1883 in response to the infamous Civil Rights Cases invalidating the Civil Rights Act of 1875: “Now, when a bill has been discussed for weeks and months, and even years, in the press and on the platform, in Congress and out of Congress; … when it has passed the … House of Representatives, and … the United States Senate …; when the Executive of the Nation has given to it his name and formal approval; when it has taken its place upon the statute-book, … you will agree with me that the reasons for declaring such a law unconstitutional and void, should be strong, irresistible, and absolutely conclusive.”
Reflecting on the constitutionalism of political abolitionism, Renan argued, “this is a constitutionalism that is messy, creative, contested, provisional, ‘porous’ in the sense of being moral-legal-political, not just legalistic. It serves as a political means of building solidarity, and a site for constituting a national constitutional identity of equality and belonging. And it has force on the ground: The rejection of judicial supremacy advanced by political abolitionists and ultimately embraced by mainstream Republican politicians makes possible the rejection of slavery in the United States.” What’s more, “it makes possible a kind of federal authority constituted by statutes — by a mix of creative, assertive, expansive protections of federal constitutional guarantees as perceived by members of Congress, driven not just by legal ideas but also by moral conviction and the need for political compromise.”
“We are arguing for a more political constitutionalism in our own time, one that rejects the final say of the Supreme Court, while redoubling efforts to develop and to secure federal constitutional guarantees of a more egalitarian system of government.”
“Niko and I are arguing for a more political constitutionalism in our own time,” Renan urged, “one that rejects the final say of the Supreme Court, while redoubling efforts to develop and to secure federal constitutional guarantees of a more egalitarian system of government through the instruments of republican self-rule and representative democracy.”
As an example of how this might work, Renan pointed to 42 U.S.C. Section 1983, a remnant of Reconstruction legislation. When federal courts decide cases under this statute, Renan suggested, they are creating a sort of “constitutional common law” that exists “by grace of Congress.” This means, however, that Congress can also treat the Court’s constitutional understandings as “provisional.” “Congress can legislate its own understandings of the privileges and immunities of citizenship,” and it can “offer a countervailing account of constitutional commitments” when it deems the Court’s to be “too stingy.” In other words, courts have an important role to play, but they may not always have the last word.
“This kind of constitutionalism understands our founding document as a site for political contestation, dissensus, power sharing, and community building. And it recognizes that our constitutional rights are only as secure as our politics can make them,” said Renan. “So, to build a better politics, we have to give the Supreme Court a little less control over what our polity can look like. We have to reject the idea that judicial supremacy is an essential ingredient of federal authority in the United States.”
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