Balkinization  

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.

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