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Informal Constitutionalism

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Another interesting post by聽Cass Sunstein, guest-blogging at Volokh. I think his insight is correct and very useful. It becomes particularly clear if you look at a constitutional system like Britain, where there are unwritten norms with clear constitutional force, such as the non-confidence vote. The Basic Laws of Israel are another good example of what Sunstein is talking about–they’re not exactly constitutional, but they are closer to being constitutional mandates than to being ordinary statutes.

This reminds me of Mark Tushnet’s recent book聽The New Constitutional Order, which provides another way at looking at the discussion about what the Republican ascendance has accomplished that we’ve been having here. (I also mentioned Balkin and Levinson’s recent essay on the “constitutional revolution,” which makes many similar points although it reaches a somewhat different conclusion.) Tushnet argues that the new constitutional order, while replacing the New Deal/Great Society one, also entrenches the accomplishments of the previous order. The new logic is not that the state can’t solve any problems, but that it can’t solve聽any more problems. The FDR/LBJ order consisted of not only what it accomplished, but also on the assumption that attempts to solve the underlying social problems would be ongoing. The new order accepts the accomplishments for the most part, but abandons further attempts to address ongoing injustices.

Whether this represents a new order is debatable, but I think it captures something essential. The major legislation of the New Deal/Great Society era, and the major decisions of the Warren Court, are clearly more than policies; they represent a quasi-constitutional framework. Marginal changes can be made–welfare “reformed,”聽Miranda rolled back–but the overall structure is entrenched. The fact that conservatives have not successfully struck at the substantive pillars of the FDR/LBJ consensus reinforces its quasi-constitutional nature.

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