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Excerpted From: Jonathan S. Gould and David E. Pozen, Structural Biases in Structural Constitutional Law, 97 New York University Law Review 59 (April, 2022) (379 Footnotes) (Full Document)


GouldAndPozenPerhaps the most basic task of a constitution is to supply the rules of “the political game.” Constitutions establish frameworks within which public power is allocated, government decisions are made, and partisan competition is waged. They also establish institutions with the authority to refine the rules over time. Yet while no one disputes that structural constitutional choices can influence political behavior and policy outcomes, the precise nature of that influence is often difficult to predict and may change as circumstances change. Constitutional structure matters; but how?

In the United States today, questions about the desirability and design of structural constitutional arrangements are typically approached in one of two ways. The first focuses on the political affiliations of current officeholders. Whichever political bloc controls a given institution in a given period will tend to benefit from that institution and from any increase in its authority. A more powerful presidency benefits whichever party holds the presidency, a more powerful Supreme Court benefits those who are ideologically aligned with a majority of the Justices, and so on. Knowing this, partisans may try to strengthen the institutions they lead or to weaken those they do not. Many of these efforts can be expected to wash out sooner or later, on such accounts, as the parties trade control over the organs of government--a phenomenon that has been occurring with increasing frequency in the political branches.

A second approach to structural constitutional analysis focuses not on transient political alignments but rather on timeless principles endorsed by all sides, at least at the level of generality at which they are invoked. In an optimistic key, for example, federalism and the separation of powers are often hailed as safeguards of liberty. In a critical register, the two-senators-per-state rule is often condemned as inconsistent with political equality. Across the globe, students of constitutional design similarly ask about the relationship between structural choices and widely shared goals such as avoidance of tyranny or preservation of effective state functioning.

Both of these approaches, one that emphasizes cycles of institutional control and the other that abstracts away from distributions of power altogether, offer valuable insights into constitutional law. But they miss something important about constitutional politics. Throughout U.S. history, various constitutional arrangements have been associated with values and agendas that are fiercely contested along partisan lines regardless of who holds office at any particular moment. In these instances, political actors may contend that structural constitutional law is itself structurally biased--that the rules of the political game systematically tilt the playing field, whether by design or by accident, for or against the policy objectives or electoral fortunes of one faction or another. And they may be right.

This Article introduces and develops the idea of structural biases in structural constitutional law. It is especially important, one often hears, that a society's rules for organizing government not be formulated or applied in a politically partisan manner. But structural biases are bound to exist in any constitutional system with well-defined political blocs, including our own. In such a system, there can be no truly neutral principles of constitutional governance, whether for formulating policy, administering laws, or facilitating electoral competition. Even technical-seeming arrangements will tend to favor certain outcomes favored by certain parties. Any set of rules to structure the lawmaking process, for instance, implicitly encodes contestable judgments about how easy or hard it should be to devise or expand regulatory and social welfare regimes. Any set of electoral rules reflects a choice among alternative modes of constructing political representation and accountability. In these domains and others, prevailing practices may be much more aligned with one side's medium- and long-term interests than a plausible alternative arrangement would be.

A few structural constitutional biases have been the subject of heated debate in recent years. Most prominently, Democrats have complained that the rules governing the apportionment of senators and the allocation of Electoral College votes are biased in favor of the Republican Party, given the spatial distribution of partisans. These complaints are just the tip of the iceberg, however. As we will show, ideological, geographic, and demographic polarization have worked in tandem to generate or exacerbate structural biases--as well as partisan strife regarding these biases--across nearly every area of structural constitutional law. Because Democrats now have more ambitious legislative agendas than do Republicans, for instance, the many veto points in the federal lawmaking process have a disparate negative impact on Democratic policymakers. Conversely, the left-leaning tilt of the civil service means that legal limits on presidential control over the bureaucracy disproportionately disadvantage Republican chief executives.

The politicization of constitutional structure marks both a dramatic new development in contemporary constitutionalism and a reversion to historical precedent. Although conflict over structural biases was relatively quiet in the late twentieth century, such conflict has riven American politics since the Founding. For centuries, partisans have fought to entrench structural biases that benefit their agendas and to dismantle those that stand in their way. As straightforward as this observation might seem--and certain structural biases, at certain points in time, are straightforward, even if many others are subtler--legal scholarship has not taken any sort of systematic account of this phenomenon. Current disputes over institutions like the Electoral College and the “deep state” cannot be well understood without being placed in this larger context.

The Article proceeds as follows. Part I defines key terms, outlines the scope of our study, and situates it in the existing literature. Part II briefly reviews earlier cycles of conflict over structural biases before turning to the present period. It explains that contemporary political conditions lend themselves to contestation over the basic terms of our constitutional order much more so than the conditions that prevailed a generation ago. Part III provides a typology of structural biases, potentially applicable to any system but elaborated with reference to the United States today. This typology helps us understand current constitutional flashpoints and may predict future ones. Finally, Part IV explores possible lessons from our descriptive and analytical account--for the coming phase of U.S. constitutionalism, for constitutional designers and reformers, and for scholars seeking to understand how legal institutions shape electoral and policy disputes. The concept of structural bias, we aim to show throughout, deserves a central place in the study of constitutional politics.

[. . .]

The idea of structural constitutional biases might seem obvious. After all, even casual observers of contemporary U.S. politics know that many Democrats view the design of the Senate and the Electoral College as giving an edge to Republicans. But such biases, this Article has argued, are much broader and deeper than has been appreciated--broader in that they now pervade virtually every part of our constitutional order, and deeper in that they shape not only a discrete set of electoral outcomes but also countless government decisions and policy paths taken and not taken. At the same time, such biases are more contingent and dynamic than many assume. Whether and to what extent any given constitutional arrangement advantages or disadvantages any given political party in any given period depends on the nature of the parties and their coalitions. Structural biases are therefore liable to change as American politics changes, sometimes in response to those very same biases.

Attending to structural bias enables us to think more clearly about both domestic and comparative constitutionalism. It can help scholars trace the relationships between partisan polarization and constitutional design, analyze the distributional and aggregate effects of constitutional arrangements, theorize the conditions for large-scale constitutional conflict and change, and evaluate how constitutions are performing relative to other constitutions and to the aims of their framers. The idea unifies existing work in several fields while pointing to new areas of inquiry. Although this Article's focus has been on the contemporary United States, its basic methodology and lessons generalize broadly. Any student of constitutional politics stands to benefit from inquiring into the structure of structural bias in their own system.

Jonathan S. Gould, Assistant Professor of Law, University of California, Berkeley.

David E. Pozen, Charles Keller Beekman Professor of Law, Columbia Law School.

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