E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahman sabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jim Fleming
and/or Linda McClain should be on the Supreme Court. Their Ordered
Liberty: Rights, Responsibilities, and Virtues is a masterful account of
how the American constitutional tradition, properly interpreted, conceives of
rights in ways that promote responsible behavior and civic virtue. Through careful examination of case law, astute
legal commentary, sophisticated philosophical analysis, and clear writing, Fleming
and McClain detail a progressive, egalitarian constitutional vision that
respects diversity while promoting deliberative decision making. For persons
interested in the Dworkinian project of integrating constitutional law and
moral philosophy, this is the total package.
President Obama would do well by having a copy of Ordered Liberty at his side when making major constitutional
decisions, including the appointment of persons (not just justices) with the
responsibility for making major constitutional decisions.
Jack Balkin,
Robin West, Nancy Rosenblum, Sotirios Barber and a great many of the other
progressive constitutional thinkers Fleming and McClain discuss would also make
outstanding Supreme Court justices. If
for some reason, President Obama asked me to choose between them, I probably
will make my choice on estimates about who was younger and in the best
health. There are interesting
differences between these progressive constitutionalists, but their agreements
strike me as more important than the disagreements. All would prevent to the extent possible for
a justice the various constitutional evils that threaten Americans in
2013. The differences between them
strike me as too far to the right of the decimal point for me to think as hard
as perhaps I should (and Fleming and McClain no doubt think I should) about
which particular progressive constitutional vision should animate the Supreme
Court or American constitutional politics in the near future..
The only
really serious criticisms I have of Ordered
Liberty (and similar books by other outstanding constitutional
progressives) go less to their conclusions or arguments than to my sense
throughout the book that a very high percentage of the passages I was reading
were attempting to persuade me why I ought to believe what I already believe
rather than what I ought to believe. Fleming
and McClain devote many passages to bashing Justice Scalia and other persons who
champion related constitutional visions, such as those who claim that abortion
harms women, but I was already convinced that Justice Scalia’s constitutional
vision is serious deficient and the evidence that abortion harms women passes
no respected scientific smell test. I also
suspect Fleming and McClain’s arguments will not convince Justice Scalia. Consider my views on same-sex marriage, which
I suspect are typical of many vaguely progressive thinkers. I am
convinced there are a number of very good moral and constitutional reasons why
same-sex couples should have the right to get married and have not heard an
argument to the contrary that I regard as particularly strong. Like a great many people, I suspect, when I
have multiple reasons for supporting a policy, I do not spend a great deal of time
thinking about which is really the strongest reason or otherwise trying to
organize more coherently those reasons I think justify the policy. I’ll celebrate a judicial decision declaring
a right to same-sex marriage, and do not care very much whether that decision is
based on the privileges and immunities clause, the due process clause, or the
equal protection clause of the Fourteenth Amendment, or the Thirteenth
Amendment. Perhaps this makes me a bad
person, or worse, a bad scholar, but the result is that I have some impatience
with the long passages in Ordered Liberty
that strike me as largely evaluating the merits of different reasonable
arguments for believing, as I do, that same-sex couples should have the right
to marry.
Fleming and
McClain might well respond that the precise reason why same-sex couples have a
right to get married matters when Americans consider such questions as whether
persons opposed to same-sex marriage have constitutional rights (or should at
least have statutory rights) not to participate in same-sex marriage. Consider in this vein the common claim that
equal protection defenses of legal abortion provide better grounds for a Fourteenth
Amendment right to state-funded abortions than due process defenses. I confess to some skepticism. Whether
progressives thought abortion a due process, equal protection or 13th
Amendment right seems to have had little influence on whether they thought the
constitution also protected rights to state funded abortions (assuming the
state was funding childbirth). Moreover,
the various arguments for abortion funding under different clauses, at least in
my opinion, seemed reasonable. For
similar reasons, I suspect that the fate of the evangelical photographer who
does not to take pictures at a same-sex wedding is unlikely to depend on the
precise grounds on which the Supreme Court finds a right to same-sex marriage
(if they do). Perhaps, as important, I
think constitutional theory ought to focus on avoiding really bad injustices. I think denying same-sex couples the right to
marry a violation of fundamental rights and if, given the choice, would not
support a constitutional decision maker who thought otherwise. I confess to thinking that the rights of the
evangelical photographer at this point in time raise difficult questions on
which people of good faith can disagree and so I am less concerned how a
particular constitutional theorists comes out on that matter (and Fleming and
McClain seem to agree that at this point in time, the question is difficult).
Fleming and
McClain may be the victims of their previous success. Fleming, in particular, has been a tireless
opponent of constitutional theories that operate from the premise “no pain, no
gain.” His arguments that the Constitution
is justified only if constitutional values can be understood as consistent with
our best understanding of the good life are powerful and ought to be required
reading for any serious constitutional scholar.
The problem is that once you accept, perhaps provisionally, the claim
that constitutional values ought to be interpreted as consistent with our best
understanding of the good life, demonstrating that a particular political
movement’s vision is a good enough fit does not strike me as a particularly
difficult task. Political movements do
not form ex nihilo. Most popular
progressive and conservative movements have reasonable roots in both American
history and American constitutional aspirations. This suggests that once you
accept the Fleming/Dworkin view of the constitution, goodness is going to do
most of the work and fit very little (since a fit can always be found). But this also means that if you accept the
Fleming/McClain view of goodness, or think their view is close enough, the
precise details of their argument may be less interesting even if elegantly
done.
Ordered Liberty is a wonderful book by
wonderful scholars and wonderful persons.
The book is a worthy successor to Taking
Rights Seriously and other great works concerned with integrating moral
theory and constitutional law. If I
disagree with Fleming and McClain (and Sot Barber), the disagreement is less on
the merits of Ordered Liberty or the
merits of the genre in the abstract, but on whether the genre of integrating
moral philosophy and constitutional law is reaching a point of diminished
intellectual returns and, whether, for the time being, progressive scholars
will have more interesting or surprising things to say if, for the time being,
they turn their attention elsewhere.
From my perspective, the most fundamental threats to the American
constitutional project are from a constitutional design and political culture that
either seems to generate stupid public policies or, as bad, no public policy at
all in response to increasing public problems.
In present circumstances, I would prefer constitutional theory that
helps us reach the happy ending of an intelligent budget process than one more
concerned with the precise ways abortion can and cannot be regulated.