Wednesday, February 20, 2013

Ordered Liberty and the Focus of Contemporary Progressive Constitutional Theory

Mark Graber

For the Symposium on James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)

            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.

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