Abstract
Although scholars, judges, and policymakers have sometimes observed that American constitutional democracy depends on far more than the constraints imposed by formal, judicially interpreted legal arrangements, many questions remain concerning the scope, theoretical basis, and practical implications of this insight. Drawing on judicial doctrine as well as insights from political science and the history of American institutions since the end of World War II, this Article explores what it means to take seriously a more expansive, less court-centric view of the safeguards associated with American constitutional democracy. I consider how historical experiences such as the postwar expansion of the consumer economy, the brutality of the Jim Crow South, and Cold War legal disputes illustrate why safeguards are best understood as encompassing society’s capacity to improve institutions over time, rather than protecting an ideal set of political, economic, or legal arrangements. I offer a relatively explicit account of the mechanisms that underlie norms supporting constitutional democracy, which may either promote or weaken the alignment between such norms and formal institutions. I also explore reasons why difficulties may grow in the future—particularly in light of changing social conditions, technology, and geopolitics. While acknowledging the importance of constitutional doctrine—often most clearly articulated in the United States by courts—this Article explains why the concept of constitutional safeguards makes little sense descriptively or prescriptively without understanding a larger context focused on specific norms and institutional capacity. Attending to that larger context better reveals the mechanisms through which doctrine articulated in court decisions informs public action, and particularly how legal interpretations facilitate coordination around ideals that limit abuses of official power and strengthen the constitutional system’s capacity to address institutional shortcomings and societal tensions.
While these nuances of constitutional safeguards bring into focus some of the sources of resilience for institutions, they also highlight a variety of questions and trade-offs that I begin to address here. These include the extent to which courts elaborating constitutional doctrine can reasonably be expected to take account of concerns about norms and institutional capacity, the role of private sector organizations whose capacity to shape public attitudes and communications is substantial enough to affect mass public deliberation, the importance of social insurance in addressing economic uncertainty that can undermine social cohesion and the public’s stake in constitutional systems, and the alternatives available to societies coping with ruptures in those norms necessary to support democracy and constitutional governance. Perhaps most important, candor in the discussion of constitutional safeguards will tend to encourage reflection about how laws are implemented in practice and what it takes for safeguards to function as tools for enhancing constitutional democracy in a changing world that may become increasingly skeptical of this form of government.
