Structure, Shmucture

About a year ago, Justice Scalia spoke at a symposium on "Separation of Powers as a Safeguard of Federalism" at Notre Dame Law School. A copy of the published proceedings just crossed my desk. In addition to a number of interesting scholarly articles, the issue includes a very short introduction by Justice Scalia. It includes Justice Scalia's claim---which he has made in other settings---that the structural provisions of a constitution (things like federalism and separation of powers) are more important than rights provisions. Only half-jokingly, he says that when he was a law professor, he referred to structural constitutional law as "real" constitutional law.

There is a certain plausibility to this claim. For example, were it not for the structural provision of the Electoral College, Al Gore would have likely won the Presidency in 2000. I say "likely" rather than surely because the candidates would have campaigned differently if they knew that the winner of the popular vote would win the Presidency, and so in this counter-factual world, we couldn't say for sure that Gore would still have won the popular vote. But you get the point: The fact that Alaska has as much representation in the U.S. Senate as California tells us a great deal about what our national policies will look like, probably more than the wording of the First Amendment tells us.

Justice Scalia gives a nice example. He quotes two liberal provisions of the old Soviet Constituton, respectively forbidding persecution for criticizing the government, and protecting freedom of speech, assembly, and the press. He then goes on to say of these guarantees:

They were not worth the paper they were printed on, as are the human rights guarantees of a large number of still-extant countries governed by Presidents-for-Life. They are what the Framers of our Constitution called “parchment guarantees,” because the real constitutions of those countries--the provisions that establish the institutions of government--do not prevent the centralization of power in one man or one party, thus enabling the guarantees to be ignored. Structure is everything.

Justice Scalia is half-right here. Nice-sounding rights in a constitution do not ensure governmentla compliance. But Scalia is half-wrong as well, because we can say exactly the same thing about structure. Take the old Soviet Constitution. It contains structural provisions guaranteeing the freedom of Soviet Republics to secede (Article 72), that representatives to soviets of people's deputies shall be chosen on the basis of universal adult suffrage by secret ballot on a one-person, one-vote basis (Articles 95-97), and judicial independence (Article 155). These provisions also weren't worth the paper they were printed on.

Now it might be objected that matters like voting and judicial independence are not about structure but rights. Yet that seems plainly false; rights and structure intertwine. Consider two U.S. examples: 1) The Suspension Clause of Article I protects the right to habeas corpus and serves a separation-of-powers function. 2) If a state were to abolish the right to vote for state legislative officials, it would surely violate the structural provision guaranteeing to each state a republican form of government. But surely the Guarantee Clause (as it is known) is structural in ensuring a particular form of government. And yet both it and the Suspension Clause, like the entire Constitution, are ultimately mere parchment barriers.

Or if you want to stick with Russia, consider the fact that Russia's recent decline into autocracy is being accomplished in large part by intimidation of the independent media--i.e., by violating rights--so that Putin and Medvedev could ensure their election without rigging actual votes.

What distinguishes real from sham constitutions is not a distinction between structure and rights but a distinction between a culture that respects constitutional democracy and one that does not. Brezhnev knew he could ignore the Soviet Constitution because he knew that he would still command the loyalty of the Communist Party and the Soviet Army. American Presidents know that if they push too hard on the Constitution, the government, the People, and civil society will eventually push back. Or at least they're supposed to.

Posted by Mike Dorf