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Balkinization Symposiums: A Continuing List 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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Ordered Liberty: Response to Mark Graber
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Saturday, February 23, 2013
Ordered Liberty: Response to Mark Graber
Guest Blogger For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
James E. Fleming & Linda C.
McClain
We appreciate Mark Graber’s high
praise for our book, in particular his comment that “President Obama would do
well by having a copy of Ordered Liberty
at his side when making major constitutional decisions.” Moreover, we are
honored that he judges the book “a worthy successor to [Ronald Dworkin’s] Taking Rights Seriously.” Yet, he
confesses that he has “some impatience” with our offering multiple reasons or
grounds for supporting rights like reproductive freedom or same-sex marriage.
He reports: “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.” He also expresses skepticism
concerning scholars’ arguments that one justification for a controversial right
is better than another because of its implications for future cases.
Before reading Graber’s
response, we had thought there were two basic views concerning multiple justifications
for constitutional rights. One, represented by Dworkin and us, is that the
multiplicity of “textual homes” and justifications for rights like those to
procreative autonomy and same-sex marriage shows how richly justified, how
deeply grounded, those rights are in our constitutional order. The other view,
represented by Robert Bork and Justice Scalia, is that this shows that the
right is made up and has no genuine roots in the Constitution. Real rights, on
the latter view, hang on one clause and have one justification. Graber
illustrates a third view: impatience with or skepticism concerning the project
of working up and assessing multiple justifications for controversial
constitutional rights.
We urge Graber to develop more
patience with our project for three basic reasons. First, offering multiple
justifications for a controversial right in a diverse liberal democracy may
help build what John Rawls called an “overlapping consensus” in support of
protecting the right. Consider Lawrence
v. Texas (2003), recognizing a right of same-sex intimate association.
Minimalists worried about courts intruding too much on the political processes
might find Lawrence justified on
grounds of desuetude; progressives (including proponents of gay and lesbian
rights, feminists, and others) might find it justified on the ground of
securing the status of equal citizenship for gays and lesbians; liberals might
be persuaded by arguments rooted in individual autonomy as well; civic
republicans and other perfectionists might find arguments from the moral goods
fostered through protecting such intimate association more persuasive; common
law constitutionalists might believe the right justified by analogy to the
right of intimate association already recognized for straights and in
recognition of what Lawrence called
the “emerging awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in matters pertaining to
sex;” pragmatists and utilitarians might be persuaded by worries about the
consequences of not recognizing the right, e.g., that gays and lesbians who are
still in the closet might be blackmailed; and so on. Moreover, different
arguments may be more or less appealing to different social movements and cause
organizations seeking to vindicate such rights. Participants in such movements
and organizations make whatever arguments they find most salient and
persuasive, given their deeper and more general commitments, and work to
transform popular opinion to support protecting the right.
Second, offering new or
additional justifications for a controversial right may help persuade persons
not already persuaded to accept the right. Graber and Gerard Magliocca write as if doing so is futile, or simply preaching to the choir. We have
higher hopes concerning the possibility of persuasion through argument.
Consider the case of John Hart Ely, who in 1973 wrote a famous critique of Roe v. Wade’s recognition of the right
to privacy as the basis for the right of a woman to decide whether to terminate
a pregnancy. Yet in 1992, after the Supreme Court decided Planned Parenthood v. Casey, reaffirming and in effect rewriting Roe, Ely wrote a “fan letter” to the
authors of the joint opinion praising their opinion as “excellent”: “not only
reaching what seem to me entirely sensible results, but defending the refusal
to overrule Roe splendidly.” (Ely
published his letter, along with commentary on it, in his book, On Constitutional Ground.) He added: “Roe has contributed greatly to the more
general move toward equality for women, which seems to me not only good but
also in line with the central themes of our Constitution.” In that commentary,
he said that he now sees that Casey
is rightly decided, not just as a matter of stare decisis, but as a matter of
constitutional principle, our commitment to equality for women. What changed
Ely’s mind? Presumably arguments about, in Jack Balkin’s formulation, What Roe v. Wade Should Have Said.
Between Roe and Casey, judges and scholars developed better gender equality
arguments.
Furthermore, unlike Graber and
Magliocca, we see value in preaching to the choir. With some controversial
constitutional rights, like the right of a woman to decide whether to terminate
a pregnancy, some people who support the right nonetheless may have doubts or
uneasiness about its grounding. And some people who support the right to
same-sex marriage may have worries about how to distinguish it from polygamous
marriage (see our response to Eric Blumenson LINK). Working up additional and,
one hopes, more powerful justifications may be valuable in firming up support
for such rights and alleviating such worries.
Third, notwithstanding what we
said about the multiplicity of justifications helping to build overlapping
consensus, in some circumstances it really does matter how we justify a
controversial right. Consider again the example of Lawrence, recognizing a right of gays and lesbians to intimate
association. If we justify the right recognized in Lawrence on the ground that everyone has a right to choose to have
sex with anyone or anything in any circumstances they damn well please, then Lawrence may well, as Justice Scalia
warned in dissent, put us on a slippery slope leading to “the end of all morals
legislation,” including laws prohibiting bestiality and incest. By contrast, if
we justify Lawrence as protecting a
right of gays and lesbians to intimate association, by analogy to the right of
intimate association already recognized for straights, and if we justify that
right as necessary to secure the status of equal citizenship for gays and
lesbians by not demeaning their morally worthy way of life, then it does not
put us on that slippery slope. Such justifications suggest lines that we can
draw to avert it.
We are puzzled by Graber’s
suggestion that there are “diminish[ing] intellectual returns” in the
Dworkin/Fleming/McClain (and Sotirios Barber) project of interpreting the
Constitution so as to make it the best it can be. He says that “constitutional
theory ought to focus on avoiding really bad injustices” or “constitutional
evils.” Here Graber, like Thomas Hobbes, eschews the summum bonum and replaces it with the summum malum. We would argue that one way to avoid bad injustices
or constitutional evils is to interpret the Constitution in its best light.
Another way is to renounce debilitating skepticism and to join in our civic
liberal project of arguing for inculcating civic virtue and promoting moral
goods that are preconditions for responsible citizenship and a healthy liberal
democracy.
Graber closes by urging
constitutional theorists to turn to the “most fundamental threats” in our
current political predicament, stating: “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.” We share his concern with such issues.
In fact, one of us (Fleming) is organizing a conference to be held at Boston
University School of Law this fall on “America’s Political Dysfunction:
Constitutional Connections, Causes, and Cures.” The conference will ask whether
and, if so, how the Constitution has contributed to political dysfunction,
including exacerbating the “crisis of governance” (which includes inability to
maintain an “intelligent budget process”).
We are dubious about whether the
Constitution (as distinguished from larger forces in the political culture) has
caused or significantly contributed to current dysfunction in the budget
process. Perhaps the Constitution has done so by failing to prevent
developments in the electoral system and campaign finance that have facilitated
the polarization of American politics. Or perhaps the Constitution has
contributed to such dysfunction more generally through adopting the Madisonian
strategy in The Federalist No. 51 –
“supplying . . . the defect of better motives” by relying upon checks and
balances and making “[a]mbition . . . counteract ambition” – rather than by
also pursuing the mildly perfectionist strategy of inculcating civic virtues
that are necessary for responsible citizenship and for the success of the
constitutional order.
We are even more dubious about
whether any constitutional theory would “help[] us reach the happy ending of an
intelligence budget process.” Perhaps constitutional theory concerned with
institutional design could help us by designing structures to promote a more
“intelligent budget process.” And perhaps political scientists could help us by
proposing ways of improving the political culture by, for example, building
social capital (as Robert Putnam does). We would encourage such projects. We
just don’t see ourselves as fiddling while Rome burns by focusing on securing
ordered liberty through addressing the relationships among rights,
responsibilities, and virtues.
In closing, we implore Graber
(not to mention Sandy Levinson, who confesses to having lost interest in
constitutional interpretation and rights in favor of focusing on the
“hard-wired features of the structural Constitution”) to overcome their
“impatience” and skepticism concerning projects like ours. While they express
their impatience and skepticism, the battles among competing theories of
constitutional interpretation and concerning whether certain controversial
basic liberties should be protected continue unabated. If liberals and
progressives turn their backs on these issues, we fear that they will end up
fighting those battles with one hand tied behind their backs, to the detriment
of securing ordered liberty, equal citizenship for all, and other good
constitutional ends.
Posted 9:24 AM by Guest Blogger [link]
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. 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Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |