Steven L. Winter
In Constitutional Essentials, Frank Michelman examines the conditions that would fulfill John Rawls’s liberal principle of legitimacy. The desideratum is a constitutional package to which members of a society composed of free and equal citizens should agree provides a platform for stable, democratic life under conditions of reasonable pluralism. The central claim of liberal constitutionalism is that a text-like object or a “diplomatically abstract” set of principles can work a deflection of disagreements within such a pluralist polity. This, in turn, creates the Goldilocks problem: If the constitutional essentials are to work as a response to reasonable pluralism, “they must not be too thin; they have to say something beyond vaporous or trivial about matters people care deeply about. But neither may they be too thick. They must stop short of foreclosure of questions of fundamental import to some citizens, over which reasonable citizens divide.” (CE 42-43)
The project rests on two related presuppositions that cannot be redeemed. First, it assumes a pluralism that, though intractable, nevertheless remains amenable to reason. Second, it assumes that reason is a capacity independent of the profound differences of meaning, value, and forms of life that shape those intractable disagreements. Neither assumption is correct. Differences in norms, values, and forms of life inevitably undergird and structure differences in meaning, perception, and interpretation. Indeed, as Jan Deutsch explained in Neutrality, Legitimacy, and the Supreme Court (1968), constitutionalism has always faced the fatal problem of circularity that arises from its dependence on the social understandings that inform its most basic terms. The most a constitutional package can supply--though it is no small thing--is a platform for disagreement.
With Karl Klare (and others), I don’t see how the strategy of deflection is supposed to work. Unless there is widespread agreement on the meaning of the essentials--in which case there is no reason to remove them from the give-and-take of democratic politics--the deflection will be quixotic. The most it can accomplish is to shift the level of conflict from debate over the acceptability of essentials to debate over the meaning of those essentials. In the end, this is a difficulty that Michelman does not resolve. Nor could he. As Michelman notes in Legitimation by Constitution (2021), the distinction between “secondary acts of interpretation” and “originary acts of legislation” is unstable--and this fact alone, he suggests, is reason to preserve such questions for the people themselves.
Following Rawls, Michelman suggests that, if cast at “accommodating levels of abstraction,” the essential constitutional rights and liberties “carry a core of commonly agreed meanings” that are “sufficient to render coherent and persuasive the claims of citizens to each other.” (CE 52) But this cannot work either, and for two reasons.
First, the transparency of central cases is itself a contingent phenomenon. One of the best-documented findings in cognitive science is the experience of prototype effects: category members that are reliably rated better examples of the category than others and that figure prominently in reasoning. For the most part, prototype effects arise because human categorization involves complex, gestalt conditions—i.e., a confluence of factors whose sum is psychologically more fundamental than the individual parts. The “central cases,” then, are just those that stand out because they fit some category or categories that the observer already holds. The experience of prototype effects creates the impression that there are clear, readily-available meanings for most abstract concepts. But this experience of clarity involves complex processes of intelligibility that draw on tacit knowledge of the relevant domain including context, purpose, social understandings and assumptions, models of behavior, etc. Under conditions of pluralism, differences in norms, values, and forms of life will structure different categories and produce different “central cases.” For the Roberts Court, 303 Creative LLC v. Elenis (2023) is a central case of free speech while Morse v. Frederick (2007) and Holder v. Humanitarian Law Project (2010) are not. Many of us would make exactly the opposite call.
Second, basic rights and liberties pose complex distributional issues no different than those that counsel many, including Rawls, against including socio-economic issues as part of the basic constitutional package. Restrictions on hate speech, regulation of corporate speech, or limitations on campaign expenditures pit the rights, interests, and relative wealth of private actors against one another. The same is true of affirmative action or the application of the one-person-one-vote principle in the context of gerrymandering or malapportionment. In considering a liberty claim, a decisionmaker must weigh multiple competing interests, regardless of whether those affected are parties to the case. Consider a challenge to a law requiring vaccination. The decisionmaker must weigh the challenger’s interest in bodily integrity against the government’s interest in the public health, and that incorporates the bodily-integrity claims of all those who might be exposed to contagion. It is a distributional claim that balances the challenger’s social utility against the social utility of others. There will be inevitable uncertainty both about these tradeoffs and about the practical actions necessary to overall public well-being. It is a fair point to say that, with respect to socio-economic rights, only a democratic politics can answer these kinds of open-ended policy questions. But the same is true for all rights claims--including property claims under the Takings Clause, as Michelman has famously argued, or the conflict in 303 Creative between religious liberty or free speech claims, on one hand, and the claims for recognition and inclusion by LGBTQ citizens, on the other.
Whatever levels of abstraction are chosen, a constitution cannot avoid the problems of pluralism, policy, and interpretation. Even if everyone in a polity has consented to the constitutional essentials, what they have consented to is a matter of interpretation and thus of current contestation. On Michelman’s own account, there is no way to interpret the text without adverting to the background traditions and assumptions that underlie it. For a respectful interpreter, he says, the constitution “will be read against the backdrop of a political moral purpose—Dworkin’s lesson—that the judicial reader cannot simply find already in the text (because it indispensably informs the reading of the text) and so must of necessity bring to it.” (CE 131)
It could not be otherwise. Consider what I call the “ashtray problem.” We can reflect on any concept and tease out its implications; we may, as with the concept of an ashtray, be able to specify its necessary and sufficient conditions. But we will always already be reflecting on our culture and history and discovering there the social deposit that shapes our thinking. An ashtray is always an ashtray. But it has no meaning outside a cultural practice of the consumption of tobacco (or similar substances) by smoking. In just this way, Michelman concedes that “any defense of ‘a constitutional scheme with judicial review’ must advert to ‘historical circumstances and conditions of political culture.’” (CE 41 n.26) Repeatedly, he acknowledges that the situated social practices and attendant values that constitute our democratic nomos play an overtly regulative function.
When we dig down into specifics, the vices of diplomatically “thin” essentials and unaccountable institutional arbiters becomes apparent. Abstraction becomes the sleight of hand that too often transmutes the gold of democratic self-governance into the lead of institutional dogma.
A traditional response to the antidemocratic implications of constitutional review is a set of legal doctrines that institutionalize the idea of judicial restraint. Such doctrines, Michelman explains, temper the overreach of judicial interpreters without running afoul of “a strong-form understanding of the supreme court’s” role in enforcing the constitutional essentials. (CE 169-70) Michelman offers Rucho v. Common Cause (2019) as an example.
A lot is at stake for the liberal constitutionalist in a case like Rucho. On one hand, a partisan-political gerrymander allows a political “party, although overall outvoted, nevertheless to gain and keep control of the legislative body in question.” (CE 161 n.23) On the other, if the courts’ involvement in partisan political squabbles undermines confidence in their neutrality, then the entire project of justification-by-constitution is in trouble. By referring some issues to other branches of government or back to the people themselves, Michelman says, doctrines of judicial restraint respond to the “standing dilemma” of maintaining confidence in the court: “[T]he dilemma would abate with entrustment of that function or some share of it to some more openly political process, one whose perceived nonpartisanship would rest not (or not exclusively) on attribution of special skills of decryption of legal texts and precedents but rather (or also) on breadth, quality, and vigor of participatory input.” (CE 162)
Note two things. First, Michelman is once again invoking the ongoing democratic debates of the living citizenry (the “openly political” and “participatory” process) to do the work of institutional settlement that was supposed to solve the problem of pluralism. Second, judicial abdication in this case is doubly inappropriate. On one hand, it is an axiom of constitutional thought from Marshall to Stone and Ely that judicial review is most warranted when invoked to protect the integrity and fairness of the political process. On the other, the issue in Rucho is of the sort least suited to resolution through democratic politics. The point of a political gerrymander is to entrench the party in power by deliberately tilting the playing field. Its purpose and effect, in other words, are to undercut the quality, vigor, and effectiveness of the participatory process. For the Court to refer the problem of gerrymandering to the very political agencies, the state legislatures, that are its beneficiaries is both disingenuous and self-defeating. Nothing could more cynically undermine democracy.
In the abstract, judicial restraint promotes democracy. Whether it does, in fact, depends on the circumstances. In overruling the abortion cases in Dobbs v. Jackson Women’s Health Organization (2022), the majority soothingly explained that the Constitution “leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress.” But many of these states have heavily gerrymandered legislatures that are significantly more conservative than their voters, a substantial majority of whom (even in red states like Kansas) support reproductive freedoms. In the abstract, the Court can pretend to be promoting democratic decisionmaking. But, as always, the devil is in the details. The full implications of Rucho emerge only when we recognize the many ways and the countless contexts in which, as Stone warned in Carolene Products (1938), an unrepresentative political process can no longer “be expected to bring about repeal of undesirable legislation.”
For Michelman, law is something outside and above ordinary practice. Constitutional law, he says, is “an always already prior fixation.” (CE 177) It is, in a word, a reification. But law is not some abstract entity, special and above. It is not, as Michelman once said, “an autonomous force” that provides “an external untouchable rule of the game.” (CE 176) The fixed, external quality of law is a projection: It is the community, as Robert Cover (1984) astutely observes, “that posits a law external to itself.” Law may be the object (from the Latin ob, “towards, against,” +? iacio, “I throw, hurl”). But we are always the subject (from the Latin sub, “under, at the foot of,” + iacio). Law is just another institutional form--a performative practice--that does (or does not) reflect our democratic nomos.
To be committed, as a strong democrat, to the rule of law as an essential element of “a regime of collective self-government among equals” (CE 181) is to be committed to the idea that we make the rules by which we govern ourselves. It does not mean that one must buy into a reified set of ground rules that are “autonomous” or “external.” The Greeks who invented democracy understood democracy and the rule of law as a tautology that they expressed with the single word isonomia: signifiying not equality “under” law but, as Demosthenes put it, an equal share in the law.
Equal voice, equal power, and equal law are just self-government. They are by definition internal to--that is, constitutive of--the game. Without them, one would be doing something other than democracy. That does not make them “untouchable.” To the contrary, we are painfully aware that they are being manhandled nearly every day. But they nevertheless describe a democratic constitution that fully legitimates itself in its performance.