Friday, August 21, 2015

Of Ferguson and Constitutional Theory

Mark Graber

As vividly demonstrated by recent posts on Balkinization, one set of scholars think about Ferguson, Missouri and related problems and a completely different set of scholars think about constitutional theory.  Contemporary constitutional theory is about whether same-sex couples have a right to marry, not about the practice of policing in communities such as Ferguson, Missouri.  How constitutional theory lost touch with central problems of American governance is worthy of some thought.

The contemporary constitutionalism canon in the United States has three prongs.  The first are those constitutional decisions (Brown), texts (the Declaration of Independence), events (the decision to fight the Civil War) and persons (Abraham Lincoln) everyone agrees represent American constitutionalism at its finest.  The second prong, sometimes called the anti-canon, are those constitutional decisions (Dred Scott), texts (the Confederate Constitution), events (the internment of the Japanese) and persons (James Buchanan) everyone agrees represent American constitutionalism at its worse.  The third prong consists of those constitutional decisions (Roe), texts (the Contract with America), events (the recent exercises of presidential power) and persons Barack Obama) that must be justified or condemned in light of the canon and anti-canon.  A good deal of constitutional theory consists of arguments that your particular cause (same-sex marriage, the unitary president) is supported by the good canon, while rival positions are analogous to the bad anti-canon.  What is interesting for present purposes is that constitutional canons and anti-canons tend to get trotted out only during some debates.  Brown, Lochner and related canons make frequent appearances when same-sex marriage is on the table.  Debates over standing or the dormant commerce clause tend to be over the best interpretation of precedents known only to persons who spend a good deal of time studying standing or the dormant commerce clause.  Ferguson, in this respect, seems more analogous to standing than same-sex marriage.  Constitutional theorists no doubt admit the issues of policing are serious, but they are peripheral to the broader theoretical task of elaborating the central regime principles of the American constitutional order.

The exclusion of the problems presented by Ferguson, Missouri from the constitutional canon and contemporary constitutional theory may be partly a consequence of the dominant tendency to reduce constitutional theory to constitutional interpretation.  Constitutional theory is presently almost exclusively devoted to such questions as “what is the proper interpretation of the equal protection clause of the Fourteenth Amendment” and “whose interpretation is authoritative.”  Sandy Levinson aside, very few people who label themselves constitutional theorists are concerned with the problem that occupied Madison, namely how power could best be organized to ensure that Americans are treated equally and justly. Constitutional theory as interpretation places Obergefell v. Hodges at the center of the constitutional enterprise.  The crucial issue in the debate over that decision is whether the Fourteenth Amendment protects the right of same-sex couples to marry.  Ferguson is largely peripheral to that debate because no serious dispute exists over the proposition that police should not shoot a disproportionate number of black men.  Ferguson is about constitutional theory as institutional design, about how government institutions can be structured in ways that minimize police violence and guarantee to the extent humanly feasible that the victims of police violence will be randomly selected.  Interpretation has little or nothing to say about these issues.

The marginality of Ferguson in the contemporary constitutional canon may also be partly a consequence of the tendency for constitutional theory to focus on issues of stigmatic harm to the upper-middle class rather than on the material deprivations suffered by much less fortunate Americans.  Put overly broadly, contemporary constitutional theory focuses on questions of personal concern to lawyers and law faculty.  “The voices from the margins” are people who regard themselves as outsiders on law faculties and the legal profession, rather than people who cannot even dream of becoming lawyers or law professors.  Consider in this respect the different degrees of attention constitutional theorists pay to constitutional questions about whether states may fund or restrict abortion, which raise the possibility of stigmatic harm for anyone who chooses an abortion, and whether states must guarantee adequate nutrition to newborns, which is of little personal concern to any person who can afford to feed their children.  All of us know people who personally celebrated Obergefell.  Few constitutional theorists have close friends who are regularly subjected to police brutality.

Perhaps constitutional theory is partly returning to its late eighteenth century roots.  A good deal of scholarship suggests that the main impetus for the Constitution of 1789 was a sense among elites that they were losing in state politics.  Nationalizing politics would greatly improve the chance that rights elites believed were fundamental (contracts) would be protected while throwing obstacles in the paths of rights (binding instructions) less affluent Americans wanted protected.  The Constitution of 1868 had a different premise.  The persons responsible for the Fourteenth Amendment were far more concerned with constructing a constitutional politics that would protect persons of color than with determining the best interpretation of equal protection of the law, a matter on which they disagreed.  If the citizens of Ferguson, Missouri are to be restored to their central place in American constitutionalism, we need to think more about the constitutional questions concerning how a constitutional order can be constructed that treats all persons with equal concern and respect and less about the interpretive questions historically at the margins of the constitutional enterprise.

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