Even if we accept that the most basic rules of fair play do not apply to our nation’s political representatives when they battle one another in the ordinary lawmaking process, we should demand more when they engage in constitutional decision-making.1 This Article explains why our constitutional system demands different rules of engagement when constitutional questions are at issue, and exactly what we should expect of members of Congress in these situations.
Congress does a surprisingly large amount of constitutional decision-making: it is the main ingredient of some important lawmaking (such as determining whether a governmental interest is sufficiently important to justify regulating speech), and a key component of many of Congress’s non-legislative responsibilities (such as deciding whether to impeach a government official, or to move forward with a president’s nominations).2 The Constitution itself differentiates between statutory and constitutional lawmaking by specifying a special procedure for the latter in Article V.3 This Article’s Special Norms Thesis extends this basic approach to the much more common practice of constitutional decision-making by Congress outside the amendment process.4
This Article’s central claim is that the existence of Special Norms for constitutional decision-making is implicit in the widely shared understanding of what a constitution is and the work it performs in a large, heterogeneous modern democracy.5 Special Norms are necessary to adequately legitimate governmental authority, to establish the type of political fraternity that modern democracies seek, and to decide a constitutional democracy’s foundational political identity.6 But while Special Norms are appropriate for constitutional decision-making, they should not apply to all of Congress’s decision-making. Extending the Special Norms to everything is not only impractical but would reflect a misunderstanding of what ordinary politics consists.7
The Article then identifies three Special Norms that should apply to Congress.8 The norms of Proactivity and Explicitness are gate-keepers that determine when Congress must engage in constitutional decision-making. Proactivity sometimes requires that Congress act, and Explicitness is a defeasible duty that Congress forthrightly consider constitutional questions when they arise. The third norm, Tempered Politics, governs congressional behavior in the realm of constitutional decision-making. Tempered Politics disallows the brute majoritarianism that is permissible in ordinary politics, instead requiring persuasion and compromise in the service of achieving consensus. When consensus cannot be reached, Tempered Politics demands decisions that are more responsible and civic-minded than what might be minimally acceptable in ordinary politics. Tempered Politics is operationalized by two sub-norms: (1) Reciprocity, which constrains disputants’ substantive positions, and (2) Communicative Exchange, which disallows unilateralism by requiring that each side aim-to-influence, and be open-to-being-influenced by, its opponent’s constitutional views.
More generally, the Special Norms aim to harness Congress’s unique institutional capacities that should be brought to the multi-institutional process (comprising courts, the executive branch, the legislature, and the states) that collectively generates constitutional judgments. The Special Norms facilitate the making of constitutional decisions that are, one might say, constitution-worthy.
This Article is particularly timely for both practical and theoretical reasons. As to the practical, the Special Norms Thesis offers a framework that may help tame the excessive political partisanship and vicious divisiveness that has captured our political institutions.9 Though the Special Norms discipline applies to only a subset of congressional action, constitutional decision-making is a crucial subset. Moreover, responsible and respectful decision-making in the constitutional domain might have beneficial cascading effects elsewhere. And even if today’s political climate is not receptive to the adoption of Special Norms,10 the Special Norms Thesis can help us better understand how we have gotten to where we are and how we might reshape our practice of constitutional politics in the future. As to the theoretical, among this generation of constitutional scholars’ most profound insights is that courts are not the only institutions that interpret11 the Constitution.12 Yet virtually no one to date has considered whether Congress’s great powers to interpret and apply the Constitution are accompanied by a great responsibility13 when it does so.14 The Special Norms Thesis answers with a resounding “yes.”15
The Special Norms Thesis is fully independent of (albeit consistent with) the United States’ practice of strong judicial review, where the Supreme Court has the last authoritative word on what the Constitution means.16 As Part I shows, Congress still must engage in substantial amounts of constitutional decision-making concerning matters for which courts provide little or no guidance. The choice between strong and weak judicial review affects the size of the domain of the legislature’s constitutional decision-making17 but not the norms that should govern that domain.
More generally, the Special Norms Thesis’s claim that Congress should conduct itself specially when engaging in constitutional decision-making neither presupposes nor determines the type of review a court should give to Congress’s constitutional decisions. The three Special Norms this Article identifies guide Congress, and only Congress. As such, the Special Norms supplement, but do not displace, the legal doctrines that courts apply.18 Nonetheless, the Special Norms Thesis may have implications for how judicial review should be operationalized. For example, compliance with the Special Norms may increase the deference–worthiness of Congress’s constitutional judgments.
The Article unfolds in six parts. Part I identifies the domain of Congress’s constitutional decision-making, showing both that it is larger than typically understood and that it goes far beyond what is naturally understood to consist of “constitutional interpretation.” Part II clarifies the status of the Special Norms. They are not themselves constitutional requirements,19 constitutional conventions,20 or even non-constitutional positive law. Rather, the Special Norms are norms: behavioral standards that should discipline members of Congress, even if they are not positive law.21 The Special Norms are not presently binding on Congress because they have neither been widely accepted nor are they generally complied with. But, as is true of all norms, the Special Norms could arise and become binding in the future, outside of formal lawmaking mechanisms, if they become generally accepted and are largely complied with.22 The Article aims to serve as a “norm-entrepreneur” that seeks to “chang[e] social norms.”23
Parts III–V comprise the Article’s analytic core. Part III provides five arguments for the Special Norms Thesis’s negative claim that Congress’s constitutional decision-making should not be taken under the thin constraints that apply during ordinary politics. Part IV establishes the Special Norms Thesis’s affirmative claim by fleshing out the contents of the Special Norms that should discipline Congress’s constitutional decision-making.24 Part V responds to four possible objections to the Special Norms Thesis, including the criticism that it is too impractical.25 In so doing, Part V clarifies how the Special Norms operate in difficult cases and identifies the Special Norms’ likely costs.
Part VI provides a final accounting of the Special Norms Thesis’s benefits and costs. That accounting is the predicate for the Article’s all-things-considered conclusion that the Special Norms should discipline Congress’s constitutional decision-making.