For the Balkinization 20th Anniversary Symposium
Paul Gowder
I'd like to
sketch out a preliminary outline of a different way to think about the
relationship between constitutional law and democracy, one inspired by some of
James Baldwin's remarks about the relationship between the struggle for racial
equality and American political identity. This is something I've been vaguely
groping toward through a variety of articles and bits of the most recent book for a few years. For present purposes, we could call
it "public identity constitutionalism," although that name is
tentative at best.
Begin with some context. The critics of contemporary Warren-Court-and-beyond
left-leaning constitutionalism love to portray it as an enterprise without
principled legal foundations.
Originalists insist that progressive constitutional jurisprudence is
just unbounded "living constitutionalism" in which left-wing judges
impose their politics (or their moral values or whatever) on the rest of us.
But critics of originalism from both the left and, more recently, the right
(the most prominent example of the latter being Vermeule's "common good
constitutionalism") have tended to observe that originalists too are
imposing their politics/morals on the public, because originalism is far less
determinate and constraining than its proponents take it to be.
Perhaps the only exception to this concession is what we might call the Dworkinian school—in which I also locate ideas like our gracious host's living originalism—which roots the left constitutional enterprise in an interpretation of the normative principles underlying the constitutional project. There's much to be said for the Dworkinian school, but, as traditionally articulated, it's vulnerable to two closely related problems. The first is essentially what the originalists have been saying in response to that school, namely that there's too much play in the joints, too many different ways to read these underlying normative principles—we're back to the age-old back-and-forth of "your constitutional theory generates indeterminate results and can't constrain judges' politics!" "No, yours does!" It all starts to seem that, as Machiavelli said about war, indeterminacy (and thus politics, war by other means) cannot be avoided but merely delayed to one's disadvantage.
The other vulnerability is exemplified by the Vermeule thing: his argument seems to be that left constitutionalism and his "common good constitutionalism" are basically following along the same Dworkinian lines, except that the left has the wrong principles, rooted in the wrong value system. Vermeule seems to think that progressive constitutionalism is rooted in a (vaguely Nietzschean?) value system devoted to overturning all restrictions on the unbounded individual will, and that progressives are just wrong to read that into the American constitutional tradition---as well as morally wrong in the first place to support it. Of course, for Vermeule the right value system, which he reads into a funhouse mirror version of the American legal tradition stretching back in an unbroken chain from the end of the 19th century to the Code of Justinian (as if the framers and then the second framers of Reconstruction didn't have theories of law and of constitutions of their own), is just a muscular version of Catholic natural law theory. Reading Vermeule, one sometimes imagines that the only choices available to us are fentanyl-fueled orgies in the streets or the auto-da-fé. But this whole mess seems to be rooted in the underlying notion that anything goes, that it's all just people performing their own values at various levels of abstraction and dressed up in varying amounts of Latin, and so, like, whatever, right? You say potatoe, I say potahtoe, you say the framers believed in settler colonial equality of white men and strong property rights, I say the secular constitutional text is embedded in a natural law tradition that came from Rome (in both senses) and was for some mysterious reason concerned above all else with keeping people from having non-procreative sex, tomatoe, tomahto, Lochner, Bowers, let's call the whole thing off.
The player that seems to me to be missing from this great melodrama of constitutional cynicism is we the people, that is, the democratic as well as the, well, constituent aspect of the constitution. One of the things that originalists understand and that Vermeule seemingly doesn't is that a democratic constitution is supposed to be an exercise of popular sovereignty, and that has to matter for its role in present political life. One of the things that progressives understand and that originalists don't is that the American constitution's status as an exercise of popular sovereignty is complicated by the standard sorts of uncomfortable facts relating to the disjunction between the present-day self-conception of the demos and the actual enfranchisement status of the population in 1787. And one thing that constitutional skeptics, crits, and all the rest of the folks on the left who are gleefully proclaiming that it really is just brute politics when judges do things we like don't understand is that the democratic disjunction just noted need not vex the project of rooting contemporary constitutionalism in popular sovereignty, for we can do so, as I argued a in an article of a few years back, retroactively.
That is, the constitution proceeds from while also defining the demos (the great mystery of how it can do both, better known as the "problem of constituent power," just dissolves once we accept that neither the constitution nor the demos is static and that the demos and the constitution can establish one another forward as well as backward in time) and establishes the basic rules of the part of their common life which we call "government." But we have to understand this legitimation process in the context of an agonistic understanding of democratic identity, one that recognizes that the identity and the scope of "the people" is both permanently transforming and permanently contested. That contestation and transformation is a basic fact of democracy, sometimes known to political theorists as the "boundary problem"—every democratic state's decisions affect more people than are included within the ambit of its demos (where, for constitutional purposes, we can understand that demos as described in concentric circles representing degrees of inclusion in matters such as political rights, liberal civil rights, etc.), and hence the boundaries of the demos are perpetually subject to challenge on legitimacy grounds.
Every great democracy and even partial democracy (like Republican Rome) has featured inflection points in which there have been radical increases in inclusion as the legitimacy of the formerly exclusive demos has broken down under internal or external pressure. Consider the reforms of Solon and then of Cleisthenes in Athens, the outcome of the Social War in Rome, and of course the Reconstruction Amendments, the expansion of the franchise to women, and similar moments in the United States. Such inflection points are never completed in an instant, because political and ideological inclusion and legal inclusion come apart as changes in the social supports for the exercise of rights lag the formal legal changes imposed by activism and circumstances: consider the long Black struggle to actually secure the citizenship supposedly conferred by the Fourteenth Amendment. I understand that struggle as a process of collective identity-formation, one in which, as Baldwin understood, Black activists have continually challenged the United States to imagine itself as a multiracial democracy, and to develop and institutionalize values (including the legal values) consistent with that self-understanding.
Neglecting that fact of contestation and expansion is the key mistake of reactionaries who have fought against changes in the identity of the demos like the principle of birthright citizenship ranging from Andrew Johnson to John Eastman, who wish to fix the identity of the constitutional people in some homogeneous past. It's also a mistake reflected in some of the worst cases of our constitutional history. Dred Scott is the most obvious example, albeit perhaps too easy—my standard example is instead The Civil RightsCases, which bases a crabbed interpretation of the Thirteenth Amendment on a claim about the public understanding of the relationship between slavery and economic exclusion that is only sustainable under an exclusively white conception of the demos.
On this kind of picture, progressive constitutional development—the living part of living constitutionalism (or living originalism)—doesn't just come out of thin air, or out of Anthony's Kennedy's "new insights" and constant hopeless resort to argumentum ad dignitas. Rather, changes in constitutional interpretation arise from changes—or attempted changes, demands—in who counts as part of we the people—whose understandings of the constitutional text and whose interests as reflected in textual ideals requiring those interests to be protected (like equal protection and due process) are to be taken into account in the ongoing process of collective self-rule. To me this is the most straightforward way to read the 20th century rights revolution exemplified by (but starting before and ending after) the Warren Court. The civil rights movement finally made a dent in the white supremacist dictatorship of Jim Crow—enough of a dent that political leaders and the courts were forced to start interpreting the constitution as if its core provisions, like the Equal Protection Clause and the right to counsel—had to be understood in the context of a demos that included Black people. Consequently, the practical implications of, say, the right to counsel shift when the assumed set of beneficiaries expands to include people whose trials might be conducted under the eye of a lynch mob, as in Powell v. Alabama. Similar social movements lead to other expansions in who counts as part of the demos. The practical implications of the constitutional idea of privacy in the home and family shifts when the demos expands to include people who might be subjected to pregnancy, as in the Griswold-Roe line of cases. The right to marriage shifts when gay people are recognized to have the same basic place in society as straight people, as in Obergefell.
This account of where progressive constitutionalism comes from recognizes the reality of politics. It takes social movements doing politics to get people into the constitutional demos. But it doesn't reduce judicial decision making to politics. Rather, judges are still recognizably engaged in legal interpretation, and that legal interpretation is still recognizably backward-looking. Judges are not changing the constitution, they're interpreting preexisting doctrine in a way that allows formerly excluded members of the demos to understand themselves as always having been members. Such an interpretation allows the constitution to be justified by the moral force of popular sovereignty even into the present-day.
Another comparison to Vermeule's thing is perhaps in order. Vermeule seems to think that the distinctive feature of his common good constitutionalism (apart from always reaching the conclusions about personal morality that he happens to endorse)—and the thing that makes it law rather than just bare-knuckle politics—is that it's rooted in a (non-positivist) theory of what law is. But public identity constitutionalism can also be understood as rooted in an account of the nature of law itself. One of the most fundamental ideas of law is that it operates by means of general rules. As I've argued, the only way togovern people under generalrules is to be able to offer reasons to each of them on equal terms for their treatment. Understood this way, the political input to public identity constitutionalism is simply contestation over the dimensions of human identity which generate a demand for reason-giving: when gay people are taken seriously as members of the demos, we begin to see them as entitled to be offered reasons for their being singled out by marriage law. (This immediately entails a version of the anti-caste principle.)
Nor would judges doing public identity constitutionalism necessarily be unconstrained. Rather, it's reasonable to think that judges operating under public identity constitutionalism are at least in principle just as constrained as originalist judges (that is, to some meaningful degree, but not completely), insofar as they use many of the same materials and—if done right—ultimately generate doctrine that allows everyone in the demos to see themselves as part of a constitutional tradition going back to the original generation. For me, this is the core lesson of Douglass's great Fourth of July Speech. The demand for inclusion is at least in part a demand to share in "[t]he rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers." It's a demand that recognizes the (not uncomplicated) value of the past. Constitutional doctrine that meets that demand is for that reason recognizably continuous with the legal tradition of the founding era.
Another way of thinking about this idea is that it's the same constitution, it's just read in the context of different rights-bearers. But different rights-bearers tend to also entail different framers (including the general public qua ratifiers and word-interpreters), insofar as one of the fixed points of human nature is that people tend to interpret legal texts in such a way that the rights they confer work to the benefit primarily of people like themselves.
Part of my as yet nascent idea for how public identity constitutionalism could be at least as constraining as originalism is that I suspect you could do it even from within originalism. That is, you could still use a lot of the same techniques—reading the literature of the historical period in question to figure out what words mean, even all that stuff with corpus linguistics—it's just that the historical materials would have to get a bit broader, in two respects. First, the founding-era historical materials would have to include, to the extent available, materials evidencing the linguistic usage not just of those who were empowered at the time (i.e., white property-owning men), but also those members of groups which were then excluded but which are now included. Slave narratives and the proceedings of Black conventions would have to be treated as just as strong evidence of what the constitution means as the Federalist Papers and Antonin Scalia's trusty collection of eighteenth-century dictionaries. James McCune Smith's claim, in 1843, that abolition would make the U.S. Constitution "pure" and render it true to its underlying principles would have to be taken seriously, and we would have to ask what he thought those underlying principles meant and how they would be cashed out in other areas of our law.
Second, to the extent founding-era historical materials are not available in sufficient quantity (for example, because some groups currently included within the demos were systematically denied access to literacy in the founding era, or, as with Native Americans, were largely uninterested in being part of the demos at the founding), contemporary materials could be used to draw inferences about how the groups in question would have understood those terms, in light of the continuing interests those groups have today and had at the founding and the conditions for the constitution to have been and continue to be acceptable to those groups to the same degree as it was acceptable to those who were given the opportunity to ratify it. We could call this a kind of restitutionary originalism, one that recognizes that historical exclusion from the demos has gone hand in hand with historical exclusion from the linguistic community setting the meaning of constitutional terms, and that interpretation can be conducted in a way that blends the best available evidence about how both the included and the excluded would have read the document. (I think this is closely allied to our host's account of living originalism/constitutional redemption.)
But public identity constitutionalism can also go far beyond originalism. Every theory of constitutional interpretation in a democracy rests on an conception of the demos of some kind, explicitly or implicitly. Under conventional originalism, the conception of the demos in question is relatively explicit but in most cases that conception is bad—racist, sexist—because it only draws on the linguistic and legal understandings of the extremely limited and unequal population who were understood as part of the demos in 1787. (There are notable exceptions, such as the excellent work of Evan Bernick.) Under Vermeule's version of common good constitutionalism, the implicit conception of the demos at play is revealed by his frequent suggestions that things like gay marriage and abortion are inconsistent with the supposedly "objective" common good. To the extent that his conception of common good constitutionalism is capable of being legitimated by popular sovereignty at all, it can only be through the sovereignty of a demos that understands the common good the same way he does—that is, a parochial religious demos. (Maybe Vermeule's conception of constitutionalism isn't capable of being legitimated by popular sovereignty. A lot of the scariest stuff he's said seems to amount to the notion that the constitution is legitimate, or not, to the extent it permits public authority to govern according to what Vermeule's religion says is the common good, notwithstanding what we the people think of it. If that's what he believes, I wish he'd say so openly so that those on the right who still mouth platitudes about democracy but are tempted by Vermeule's vision of the constitution would be forced to confront the dissonance between the two.)
But you could do some version of common good constitutionalism with a different conception of the demos, one that recognizes that America isn't just Christians—isn't just members of Abrahamic faiths—isn't even just religious believers at all—and finds its natural law/common good in moral principles that they all share. We might even call that an "overlapping consensus." Because it turns out that if you take Vermeule and cut out the theocracy (if you swap out God for We the People), what you're basically left with is Rawlsian public reason liberalism. Which really ought not to be surprising: liberalism is strikingly well suited to tell a story about how the people of a diverse democratic community might genuinely pursue a shared good through their collective operation of a social institution, like law, which rests on the appeal to reasons. It turns out that vox populi actually is vox dei after all. At least, it is when the vox of the whole populi is allowed to be heard.
Paul Gowder
Professor of Law, Northwestern Pritzker School of Law
https://gowder.io