“A picture drawn from life” -- Comments on Frank Michelman’s Constitutional Essentials (“CE”)

Guest Blogger

For the Balkinization Symposium on Frank Michelman, Constitutional Essentials: On the Constitutional Theory of Political Liberalism (Oxford University Press, 2022)

Oliver Gerstenberg

A crucial insight in Frank’s CE is that constitutions may serve a justificatory or proceduralizing aim in modern liberal democracies. Constitutions, for sure, serve a regulatory role, as Frank says, working from an expectation of advance-design effects on political outcomes. However, on the assumption that in morally divided societies nearly all citizens will regard some of the coercive laws as deeply wrong, unjust and repugnant, constitutions can provide an important framework of justification which enables political majorities to justify their coercive enactments to dissenters from majoritarian legislation by showing that they have acted within the terms of a good-enough constitution. As Frank has pointed out elsewhere, “[o]n the level of mundane political rhetoric ‘it’s constitutional, after all’ …. works … as a formidable reposte to those who demand to know why they should be expected to accept in good spirit the compulsion of some law that they (not crazily) have found to be outrageous and oppressive.” 

“Procedures,” as Frank explains in his book, “are a resort for groups of per­sons who find themselves divided over policies for their group but who even so prefer (or see no choice but) to stick together rather than go their separate ways.” Constitutions proceduralize the resolution of those disagreements by providing a justificational framework which reasonably disposed citizens can mutually share. Substantive constitutional law has as one of its chief functions to serve as a public standard for a democratic regime’s continued deservingness of wide acceptability in advanced democracies, so that citizens will be justified in demanding of each other a general disposition of compliance with all constitutionally compliant laws regardless of their own, independent judgments of the moral and other merits of these laws.

But substantive constitutional law qualifies to fulfil this proceduralizing mission, “if and only if the procedure can be counted fair among free and equal citizens in conditions of reasonable pluralism,” that is, if but only if the procedure is also substantive in that it protects all the rights, but only those rights, that would make this a constitutional pact acceptable to all citizens considered as free and equal. Only under this condition does the procedure have a “supportable claim on the consent of all reasonable and rational parties affected” and can be seen “in the last resort an upshot from the pursuit of the liberal grail of government by consent,” expressing its “liberal character.”

In this way, proceduralization expresses the complex normative fact that all citizens must be able to see themselves and each other not only the addressees, but also the putative joint co-authors of the coercively imposed legal order. Only then can dissenters be expected to accept political and legal outcomes even when those outcomes diverge from our personal preferences, moral judgments or conceptions of justice.  

Yet the constitutional framework will necessarily contain a significant number of highly abstract, open-textured terms whose applications to concrete cases will be subject to ongoing and persistent good-faith interpretive disagreements. The proceduralizing strategy therefore depends on further agreement on a forum or process for trustworthy reasonable resolutions of such disagreements about the framework's content, which may be courts. In order for the proceduralizing strategy to work, two conditions must be met: first, judges must be, “and appear to be, interpreting the same constitution” and, second, it must be the case that the judges’ views of the constitutional essentials locate the central range of the basic freedoms in more or less the same place. 

But the problem—to which Frank has been drawing our attention all-along—is that the entire strategy of proceduralisation may fail. Legitimacy-endangering dissensus may move all-the-way up into the proceduralizing constitutional framework itself and extend right into core civil and political rights which form the citizens’ “constitutional-procedural pact.” The conditions of visionary pluralism might turn against constitutional law itself as a platform of justification that can be mutually shared by all in good faith. Then any democratic-dualist-legalist distinction between constitutional law and ordinary law becomes impossible to achieve.  

Given the pervasiveness of deep moral dissensus, is a defense of democratic-dualist legalism possible?

A familiar contemporary critique argues that conditions of modern pluralism and moral dissensus render the dualist-democratic idea of subjection of ordinary democratic lawmaking to the constraints of a higher-law constitution obsolete. As the critics argue, it would be much better—more democratic—to leave majorities to decide by themselves, liberated from constitutional constraint. Constitutions inevitably orient us toward the past not the future, thereby distorting our contemporary debates about the pros and cons of policies themselves by backward-looking questions about fidelity to some (imagined) past. Instead, we should pursue the fundamental values we care about—from antidiscrimination to environmental justice—through the to-and-fro’ of unconstrained majoritarian politics itself.

I believe that Frank is exactly right in arguing that a liberally justification-worthy political framework-law-in-place is normatively necessary for democratic politics to succeed in divided societies and in claiming that this is a “picture drawn from life.”

The overall message of Frank’s CE does not come across as defeatist. Political liberalism, as Frank says elsewhere, is a “fighting faith.” Liberal democracy, Frank argues, rests on “public confidence shared and sustained in a liberally justification-worthy political framework law-in-place.” And contrary to the political-constitutionalist view that the law of lawmaking should be determined by ordinary politics entirely, courts can exert a legitimacy-sustaining and democracy-enhancing role. 

Ronald Dworkin had argued that judicial decisions should be based on the principles that make the best sense of the Constitution’s provisions, while keeping faith with understandings arrived at in previous cases. Sometimes an active judicial role will be justified, and precisely in the interest of democracy as a non-majoritarian substantive concept, grounded in the value of political equality. Frank, too, does not abandon the project of justification and the effort of getting the basic laws and their major interpretations morally right. However, a center-piece of Frank’s work has been to explore the idea of temporality and dialectical liberal reasonability which focus on relationships between courts and the wider public—in other words, "an institutional division of labor be­tween the supreme court and the people.”

Already back in 1999, in Brennan and Democracy, Frank wrote that “the maximum feasible effort to get the basic laws and their major interpretations right would have to include arrangements for exposing the empowered basic-law interpreters to the full blast of sundry opinions and interest-articulations in society, including on a fair basis everyone’s opinions and articulations, including your own.” Expanding on this “full-blast” condition by introducing, in CE, a non-court-centric, less judicially-supremacist conception of constitutional adjudication characterized by a temporal dialectical-liberal dimension, Frank argues that constitutional interpretation is a recursive, self-revising process involving the constant interplay between courts, legislatures, plaintiffs, the citizens themselves, the wider public. Under conditions of visionary pluralism democratically responsible citizens—who mutually understand themselves as “heirs to a broad constitutional-democratic tradition”—are “pressing sundry views within a broad space allowed by the constitutional-democratic tradition can compose a constant force-in-waiting for provocation of updated adjustment of the scheme of constitutional guarantees in force in their country, so as always to be dragging it toward its fully justification-worthy state.” In divided societies, constitutional-interpretive deliberation itself, as I read Frank, can do something to engender discursive civility and mutual respect across moral disagreement, provided that each side listens with respect to the other’s particularist inflection of constitutional-interpretive claims and demands.

This gradualist and reformist impulse in Frank’s approach, aimed at widening the circle of reasonability, dovetails with what Frank has described as a “democratic experimentalist model” of courts, and with “social learning.” Toward the end of chapter 10, which is on the specific debate on socio-economic rights and their justiciability (which I will not pursue here), Frank describes a broader, more forward-looking, deliberation-enhancing role of courts. The court “acts in the first instance as instigator and non-dictatorial overseer of engagements among stakeholders very broadly defined—governments of course included—in an ongoing process of interpretative clarification of what a constitutionally declared right … The court engages the parties over what sorts of steps by what classes of actors are concretely … now in order … As the discursive benchmarking moves along and the emerging answers gain public recognition and authorization, the court turns up the heat on deployment of its powers of review … At later stages, the court starts calling for substantive compliance with an emer­gent best-practice consensus, in the name of the constitutional right … [but without claiming] a door-closing last word.”

The democratic-experimentalist model, then, conceives of democracy as essentially deliberative: as a process of mutual perspective-taking between citizens as free and equal in morally divided societies which allows and requires co-deliberators—conflict parties, state actors, third parties and stakeholders generally, either as proponents or dissenters—to consider and rethink their initial commitments, internalizing elements of their opponents’ antagonistic views thereby transforming their own. In this way, the democratic process ties the exercise of public power back not only to the preferences but to the judgments of citizens as political equals. Courts can play an important deliberation-reinforcing role in instigating and monitoring a non-hierarchical process of stakeholder deliberation in which forms of manipulation, distortion or social domination can routinely be addressed, openly be criticized, and remedied, often over self-correcting successive litigation. The democratic-experimentalist model allows for—as compatible with the principle of institutional settlement—modalities of judicial intervention that remain provisional and open to social learning and input and ongoing self-revision by focusing on the process of progressive clarification of the meaning of rights that citizens, in turn, are encouraged to mobilize, and on the process of searching for fair balance over time. Attention focuses not only on the exceptional hard case and a singular court deciding it, but on multilevel constitutionalism. There no longer is personification of political community, but the idea instead is that judicial intervention may contribute to an antagonistic consensus on the process itself of reasoned debate and deliberation: a convergent understanding, in a morally divided society, that this justificatory-deliberative procedure is without alternative and hence always self-substituting.