Wednesday, October 11, 2023

Comments on Frank Michelman’s Constitutional Essentials

Guest Blogger

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

Karl Klare

I am grateful for this opportunity to honor Frank and to publicly acknowledge my debt to him for his mentorship; his enthusiastic participation in several of my initiatives; and for the cherished friendship with him and Ellen.  We came from different intellectual traditions back in the day – Frank, the proudly committed liberal and Rawlsian; me, the 1960s New Left, neo-Marxist, self-styled “post-liberal.”  For all that, in our discussions over the years it has frequently been difficult to find much distance between our respective views on democratic life.  I regret that this little symposium contribution cannot do justice to what I owe Frank. 

My claim is this.  Rawlsian and related schools of democratic political theory assign a role to legal discourse that it cannot perform.  A load-bearing constitution, to use Frank’s terminology, includes a load-bearing institutional settlement for resolving disputes about constitutional compliance.  This, in turn, requires load-bearing methods of analyzing legal questions, methods of legal reasoning that successfully deflect the compliance inquiry away from deeply disputed questions of what fundamental rights and principles the constitutional essentials should contain.  We do not possess such methods.[1]

Justification-by-constitution aspires to “supply a basis on which free and equal citizens, some of them finding deeply wrong and repugnant some of the laws right now issuing from the duly constituted authorities, can nevertheless freely and willingly accept those laws and be prepared normally to abide by them” (CE, 4).  Despite their principled political and moral disagreements, members of the public “will have prevailing reason to accept and respect as law the legislative [and administrative] outputs of [the] political order in force” if and only if they are given “an assurance that those outputs issue in conformity to certain instructions of policy contained in [a publicly accessible and legible,] higher-normative constitution” (CE, 5 and cross-reference to 48, 164, and elsewhere).  Members of the public need not “always converge in their own first-person judgments about answers to questions of compliance[,]” so long as they may reasonably converge “on a dedicated institutional service, whose judgments regarding such questions could themselves be trusted to fall within the bounds of a reasonable balance of the public values bearing on the case—not infallibly, but with a frequency sufficient to qualify those judgments as publicly authoritative for justification-sustaining purposes” (CE, 43).  This trusted “institutional settlement of constitutional meanings” (CE, 165) must be able to assure the public that the rights and first principles of the constitutional framework carry through to and constrain the legislative and administrative outputs of governments of the day.[2]           

For constitutional law to serve as a “procedural platform of justification for political power, among free and equal citizens in conditions of reasonable pluralism, in answer to the problem of political liberalism” (CE, 171), the methods utilized by judges and lawyers to analyze and (provisionally) resolve constitutional questions must possess certain characteristics.  Lawyers, as distinct from politically active citizens and parliamentarians, must give us “a reading of the constitutional law-in-force[ ] detached on the one hand from political currents of the day and on the other hand from free-floating political-philosophical speculation” (CE, 180).[3] 

Thus, justification-by-constitution entails that judges and the lawyers with whom they engage possess work methods that constrain them from defaulting back to general political-philosophical argument and that preclude them from effectively rewriting the constitutional essentials as they go along.  Moreover, Frank tells us not once but twice that the trusted arbiter – for simplicity, I will call it the “supreme court” – must give answers to questions of constitutional compliance that are “ascertainable by means that are an order of magnitude less open to divisive dispute” than are the substantive political and moral disagreements (CE, 26) (my italics).[4] 

“Justification-by-constitution works by a deflection of divisive questions of legislative policy and value (does this law or policy merit the respect or rather the contempt of a right-thinking person?), to a different question (is this law or policy constitutional?) for which the answer is to be publicly apparent, or at any rate is to be ascertainable by means that are an order of magnitude less open to divisive dispute than are the deflected substantive disagreements.  It thus offers itself as a procedural response to the special challenge of democratic political justification in conditions of reasonable pluralism” (CE, 51)(my italics).

To put the question as sharply as possible, I assume that the institutional set-up separates judges from the rough and tumble of partisan political currents.  I assume also that judges act in good faith, with appropriate respect for democratic majorities and traditions, and with appropriate humility about courts’ institutional competencies.  I assume judges feel bound by legal authorities, and that their discursive practices are faithful to the repertoire of analytical concerns and argumentative tropes prevailing in the specific legal culture in which they participate.  I accept that we cannot expect them to be infallible, and that reasonable differences will arise due to the inevitability of judicial resort to balancing conflicting considerations, the burdens of judgment, changes over time (CE, chapter 5, § 3), and the impact on judgment of personal life experience (B&D, 48). 

Is this enough to assure that judges and lawyers possess work methods meeting the requisite, demanding characteristics?  Candidly, Rawls on legal method does not inspire confidence that the trusted arbiter can deliver the goods.  Rawls, on Frank’s account, is thin on legal reasoning (see, e.g., CE, 75-76).  We get the usual clichés.  Judges’ readings of the constitutional essentials must be “legalistic” – they must be based on “legal grounds of precedent and recognized canons of statutory construction” (CE 86, quoting Rawls; cf. “established judicial precedents” (CE, 62)).  Judges’ work must be faithful to any “prior deposit of legal constructions” of the nation (CE, 76). 

Over a century of anti-formalist legal criticism has undermined the plausibility of the notion that a legal community can sharply distinguish the analytical and decision procedures appropriate to politically active citizens and parliamentarians from those appropriate to adjudicators, particularly constitutional-compliance adjudicators.[5]  This does not mean we are unable to distinguish legally appropriate outcomes from “purely ideological,” “personal,” or “random outcomes.”  The claim is not that legal and political reasoning collapse into each other or that law is “just politics.”  Rather, the argument is that political and legal discourses influence each other, and that it is often difficult to disentangle one from the other.[6]  Legal outcomes reflect a mixture of the perceived implications of legal norms and authorities, the perceived implications of extra-legal norms and understandings, and the impact of ethical and ideological sensibilities (sometimes subconscious).[7] 

General political and philosophical conceptions do not necessarily infiltrate legal reasoning because judges are doing anything wrong.  Recall that I assume good faith and earnest fidelity to legal authorities and norms.  The problem is that legal authorities and legal methods are much less tightly constraining than political theory assumes.  So-called “legal reasoning” consists of the practiced use by legal actors of a stylized (and often self-cancelling) repertoire of rhetorical strategies and argumentative tropes to produce the appearance of the legal necessity of an outcome.  Legal reasoning is not algorithmic in character; it is a collection of discursive practices, which evoke, enact, and create meanings within a culturally specific and semi-plastic (although not infinitely plastic) medium.[8]  Often many or even most participants in a legal culture will agree that given norms and authorities admit of only one or a narrow range of interpretations.  However, not infrequently, legal constraint runs out.  The available legal materials contain gaps, conflicts, ambiguities, and conflicting signals pointing in opposite directions.  On occasion legal work within the medium destabilizes the settled beliefs of a legal community, in which case the binding-ness or constraint imposed by the legal materials weakens or dissolves.  When lawyers step back and interrogate widely shared understandings, from time to time they are able to justify radically new or even contrary understandings of what the legal authorities mean and imply using perfectly respectable and accepted tools of legal reasoning within the legal culture. 

Legal norms, rules, and authorities do not have voice; they cannot speak to us.  They cannot define, apply, or limit themselves without some sort of interpretive activity by legal actors, interpretive activity that occurs and cannot but occur within a culturally constructed medium.  Legal argument regularly passes through inflection points intermediate between the norms and rules and the outcomes.  The line of argument veers in one direction rather than another compatible with the norms and authorities in question, with path-dependent and outcome-determinative consequences.  These bend points are ports of entry for political and philosophical convictions, cultural sensibilities, and unconscious assumptions about the world.  Indeed, they are necessarily ports of entry for extra-legal considerations and sensibilities because the norms, legal authorities, and tools of legal method are unable to yield a determinate result.  Ronald Dworkin’s conception of “fit” is supposed to make these problems go away, but it manifestly fails to do so (a subject for another day).  Even taking the most expansive view of what counts as “legal,” the culturally bounded perceptions, sensibilities, and experiences judges bring into adjudication at the inflection points eventually overflow the repertoire of legal reasoning. 

So what is the problem, if all the judges act in good faith and are each members of one of the family of liberal conceptions of justice?  The problem is, first, that the basic package of constitutional essentials consists not only of the ledger of constitutional clauses but also key interpretations of them (B&D, 18).  Interpretive questions regarding matters of constitutional compliance may be “strenuously and reasonably contested issues of major moral importance” to many members of the public (B&D, 47).  Second, for the reasons just outlined, judges and lawyers inevitably, if only partially, construct the law to which they say they are bound and to which they owe fidelity.[9]  “Acts of legal application,” Frank tells us, “contain acts of legal manufacture” (B&D, 21).  Because the “matters left to be resolved by interpretation” of the constitutional essentials “are often themselves such major political-moral issues[,] resolutions of them one way or the other cannot readily be held separate from determinations of what the principles – in effect, the basic laws – themselves actually are” (B&D, 49).  To an undefined but not negligible extent, when judges give meaning to, they effectively author the constitutional essentials in the course of applying them. 

The bottom line is that the procedural device of referring questions of constitutional compliance to a trusted arbiter does not avoid the problem of kicking the can down the road.  Maybe someday a legal culture will invent methods of doing legal work that largely exclude the political and allow lawyers to derive implications from legal authorities with only a limited dusting of interpretation.  Until then, it is difficult to see how the public can have the requisite confidence that constitutional adjudication does not re-open general political and philosophical controversy about the shape and content of the constitutional essentials.  At least, it is difficult to have such confidence without taking a leap of faith unjustified by the performance of any actually existing constitutional court.

Karl Klare is George J. & Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law. You can reach him by e-mail at 

[1] I find nothing in Frank’s Brennan and Democracy (Princeton Univ. Press, 1999) (B&D) contradicting what appears in CE.  Reading between the lines, however, I cannot shake a sense that the Brennan book exudes more skepticism about what legal reasoning is capable of doing than we can detect in CE.  Notably, the Brennan book (at page 50) reveals a Goldilocks problem in the work of constitutional lawyers that replicates at the next level the Goldilocks problem discussed in Constitutional Essentials concerning the substantive content of the framework agreement. 

[2] The “publicly trusted arbiter of compliance with a justification-worthy constitution in force” (CE, 182) might be an apex court or, as suggested in debates Frank canvasses, might take a less familiar form such as a dialogic colloquy among judicial and non-judicial institutions (see chapter 11, § 3.2.2).

[3] Here, the irreducible element of positivism in Rawls (CE, 180).

[4] Cf. CE, 37:  “measuredly less open to divisive dispute; CE, 48:  “relatively ascertainable.”

[5] This paragraph draws on my “Critical Perspectives on Social and Economic Rights, Democracy, and Separation of Powers,” in Helena Alviar García, Karl Klare & Lucy A. Williams, Social and Economic Rights in Theory and Practice:  Critical Inquiries (Routledge, 2015), pp. 9-11.

[6] See Frank Michelman, “Bringing the Law to Life:  A Plea for Disenchantment,” 74 Cornell Law Review 256 (1989).

[7] See Duncan Kennedy, A Critique of Adjudication: {fin de siècle} (Harvard Univ. Press, 1997), at 19.

[8] This and the following paragraphs draw on Dennis M. Davis and Karl Klare, “Critical Legal Realism in a Nutshell,” in Emilios Christodoulidis, Ruth Dukes & Marco Goldoni, eds., Research Handbook on Critical Legal Theory (Elgar, 2019), pp. 27-43.

[9] Kennedy, Critique, 157-212. 

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