Dorf on Burkean Constitutionalism

April 10th, 2012

What is Burkeanism:

 Today “Burkeanism” is simply a signal for something like the following view: Social institutions are highly complex and often reflect the accumulated but tacit wisdom of long experience. Therefore, proposals for rapid, radical change should be met with skepticism, because they will frequently have unintended and undesirable consequences. The French Revolution, which Burke discussed in Reflections on the Revolution in France, is generally taken as the archetype of how disregard for the virtues of gradualism can go awry.

And Burkean Constitutionalism:

 Today “Burkeanism” is simply a signal for something like the following view: Social institutions are highly complex and often reflect the accumulated but tacit wisdom of long experience. Therefore, proposals for rapid, radical change should be met with skepticism, because they will frequently have unintended and undesirable consequences. The French Revolution, which Burke discussed in Reflections on the Revolution in France, is generally taken as the archetype of how disregard for the virtues of gradualism can go awry.

Dorf also argues that Balkin is Burkean:

Instead, I want to focus briefly on Balkin’s tacit Burkeanism. Balkin argues (correctly in my view) that social and political movements are the real drivers of constitutional change over time. The role of the courts is chiefly one of mopping up–of using legal tools to rationalize the change that the People make more directly. Balkin then asks whether the game is worth the candle. If the People ultimately make constitutional law and the Supreme Court is not strongly countermajoritarian, why bother with judicial review at all? Balkin’s answer is that judicial review adds another “veto point” at which legal change can be blocked, thereby restraining simple majoritarianism and “creat[ing] a bias toward preserving the constitutional values of the political status quo.”

Balkin here alludes to Burkean virtues of American constitutionalism: Our baroque system of federal lawmaking ensures that the status quo will be preserved, absent the sort of extraordinary effort needed to run the Article I, Sec. 7 gauntlet. For Burkeans who are suspicious of rapid change, our system of federal lawmaking–which effectively requires super-majorities to enact legislation–should be attractive, as it preserves the status quo against change substantially more effectively than, say, English-style parliamentary government, in which the Prime Minister’s program will be enacted based on a simple majority in the House of Commons.Balkin is also right that adding judicial review as another veto gate effectively renders the system as a whole still more Burkean–or at least that is its effect when judicial review is invoked to invalidate legislative innovations. When, by contrast, judicial review is used to invalidate old laws (e.g., Brown, Roe, Lawrence v. Texas), it is difficult to characterize the Court’s action as adding a “veto gate” for laws (typically state laws) that were enacted decades earlier.