Monday, October 16, 2023

Response to the Contributors

Guest Blogger

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

Frank Michelman

Warm thanks to good friends for these smart and attentive commentaries. I hope the brief rejoinders to follow will show how Constitutional Essentials (“CE”) could have been enriched and improved, had I had them in hand before finishing the book.

Gerstenberg and Mailey

CE comprises my reading (so to speak) of a Rawlsian take on a certain political pursuit of historical vintage, which Rawls relies on his readership to greet sympathetically under the name of constitutional democracy. The reading centers on what I have seen as a distinctive Rawlsian attribution of function and point to the “constitution” part in that so-named political tradition. I expatiate at length on this Rawlsian constitutional conception and its institutional ramifications. Two of the commentaries offer thoughts for extension of my Rawlsian reading in directions not covered in the book.

Oliver Gerstenberg argues for extension of CE’s rather truncated treatment of the topic of a so-called “democratic experimentalist” form of judicial constitutional review. Chapter 10 of CE traces a recent upsurge of interest in that idea to pressures from a liberal-minded dilemma over inclusion of socioeconomic guarantees among the constitutional essentials. While the book thereafter has more to say on the general topic of “weak-form” judicial constitutional review, it does not further engage with the democratic-experimentalist version. In the course of showing how the experimentalist approach can have application beyond the context of socioeconomic guarantees, to comparable dilemmas affecting the full spectrum of Rawlsian-essential basic liberties, Oliver provides a digest of core themes in the book upon which I would not know how to improve.

Chapter 13 of CE presents a putative Rawlsian response to another chronic liberal discomfort, that surrounding the matter of judicial applications of substantive constitutional guarantees to private legal relations (“horizontal application”). Richard Mailey takes that account of mine and puts it into fruitful conversation with Canadian judicial developments commencing with the SCC decision in Dolphin Delivery. From there, Richard proceeds to a wider consideration, drawn from Canadian constitutional script and practice, of institutional devices for easing liberal concerns (as presented by my chapter) over an excessive “bluntness” of constitutional law as an instrument for judicial parsings of private-law cases. The result is fully in the spirit of my book’s Rawlsian take on judicial constitutional review (see especially Chapter 11), extending the book’s discussion in apt and useful directions.


In a prior book, Brennan and Democracy (1999), I had written of the impossibility of quarantining judicial choice in hard constitutional cases against infection by ordinary politics—thus aligning myself (you might say) with a legal realist/Crit rejection of the fantasy of a special “legal” method that could pull off such a trick. But now Karl Klare finds my sympathetic presentation, in CE, of the Rawlsian proposal for justification-by-constitution to stand in tension with that prior utterance of mine. While I can see in pages of CE the grounds for Karl’s concern, I don’t think my exposition there of the Rawlsian proposal and its entailments for institutional practice hints at any retraction from my stance of 1999.

The Rawlsian program for justification-by-constitution does surely include, as a requisite component, an establishment in the public space of a trusted institutional arbiter of constitutional compliance. On that point, CE is over-and-over insistent. But CE does also take pains to reject any ascription to Rawls of insistence on a judicial body as the requisite arbitral institution. (“That arbiter need not necessarily be a constitutional or supreme court, [although] often, in practice, it is.”) (CE at 190; see CE at 40-41, 44) And if that is right—if, as by my telling, it needn’t be for Rawls a judicial body serving in that role—then I can’t have found a dependency of the Rawlsian project on the discoverability of a specialized “legal method” (“legal reasoning,” “legal work”) that would, in Karl’s words, “largely exclude the political.”

What on CE’s account the Rawlsian proposal requires is an institution of review that could pronounce, provisionally and with sufficient public credibility, on whether the constitutionally challenged legislative or administrative action falls within the outer bound of an “at-least reasonable” (not necessarily in anyone’s view “the most reasonable”) application of a constitutionally scripted scheme of equal abstract basic liberties, taking that script to include any still currently established prior interpretations (think “precedent”), which are not themselves now up for reconsideration as having possibly gone outside the bounds. That assignment may or may not be regarded as realistically achievable, but one thing the assignment will not brook is the arbiter’s pretense to a flight from political values to a professedly wertfrei “legal” method. To the contrary, the arbiter’s interpretation, on the Rawlsian account, is to chime with some broader conception of justice that would fall within the bounds of that wide tradition of liberal constitutional democracy that Rawls counts on us to know in our bones. That demand seemingly would repel any pretension of the arbiter to a method of insulation from the political. What it rather and to the contrary would require, as a condition for the acceptability to us (the constituency to whom Rawls speaks) of political coercion, is the arbiter’s credible rendition and application of a regulative conception of the political, one that must always be contentious sub specie aeternitatis but that the arbiter calls on the constituency to accept as controlling for its country’s basic law.

Karl would not, I think, want to reject the idea of a higher regulative conception for the politics of any country he cares about. But then here is Karl pointing to CE’s quotations from Rawls of language of a kind familiarly used to convey the myth of a special judicial command of a method for excluding the political. The language is there. It occurs in the context of a working assumption by Rawls that the society in question is one of the many currently in view that in fact have made the choice to place their trust in a judicial referee. But here also is Rawls taking care to leave the door open to contrary choices—say, for having the parliament act as the referee of constitutionality. What Rawls calls for is a circumstantially situated judgment, about which choice, for that society, will provide “firmer support for the values that the higher law [means] to secure.” (PL at 234-35, implications pursued in CE at 240-41, 243-44) And then, perfectly in line with that call, Rawls (in my reading of PL, see CE at 84-87) offers explanation of how a choice in favor of a judicial referee could well be reasonable for a given society—even of how a society might turn to positive advantage, in "an institutional division of labor between the supreme court and the people,” a law court’s anticipated adherence to the standard tropes of a law/politics distinction.

No doubt it’s a dicey proposition. Choice among possible institutional implementations for lofty political ideas and ideals must always, for the crooked timber of humanity, be choice among risks and shortfalls. And no doubt anyone around here might responsibly choose against reliance on a judicial body steeped in legalism. A judgment by Karl to that effect does not place him out of sympathy with the Rawlsian conception of a democracy that is “dualist,” meaning a regime for which there is in place a publicly recognized and accepted higher code of constitutional ends and values, broadly named and always awaiting interpretation, on the good-faith pursuit of which justification for applications of democratic political force depends. Again, I don’t see Karl dissenting.


With Steven Winter, it may look different. Democracy simply is, Steve says, whatever democracy does, and we of the true democratic faith are thus fated to put our trust in “a democratic constitution that fully legitimates itself in its performance.” But a constitution democratic by what standard of democracy? Legitimating itself by what standard of legitimation? I do not see how Steve in the end evades these questions. Or conceivably could evade them, any more than Rawls or I conceivably can evade the paradox of a supposed outer bound around the politically reasonable in the face of an inescapably causally rooted brute fact (which we don’t for a moment deny) of permanent visionary conflict reaching to the heart of political reason itself.

Hearken to democracy according to Winter: “A regime of collective self-government among equals.” “The idea that we make the rules by which we govern ourselves.” “Equal voice, equal power, and equal law are just self-government.” Those formulas don’t name or claim the truth of any facts on the ground. They rather serve as invocations of a particular vision of right politics, to which the facts-on-the-ground might or might not correspond. Even as he asserts them as undoubtedly commanding for any true democrat, Steve is reminding us of how, in fact, we see them “being manhandled every day.” He can’t say that without in the same breath invoking some criterion, some norm for the exercise of political power, in which he and we his audience supposedly share. Relatively abstract—even vague—as that norm may be, and correspondingly debatable as must often be its more concrete applications to our affairs, the norm as norm invites no debate. It asserts what it asserts—its own proposition of a particular high-level conception of some basic terms and conditions of rightness for a political regime, or of the regime’s suitability to us in our historical situation

Can a theocracy be democratic? In a democracy, do convicted felons vote on whether convicted felons vote? To say we rely on democracy for our answers to such questions can only mean to say, of some projected concrete regime we have in view, that it sufficiently corresponds to that particular high-level normative conception to let it be the one we will count on for the self-steering required to sustain that correspondence into the future. Either that is what we mean, or else we quite literally will not know what we are talking about.

Translating then to Rawls-speak: Steve’s formulas reference some high-level political conception of justice that is (or is not) to be accepted by us as reasonable and suitable to us. But then a conception suitable in virtue of what about us? Look at the formulas again, and you’ll see they could quite comfortably derive from a conception reared upon the very same proto-liberal impulses that motivate the Rawlsian proposition for justification-by- constitution: a conception of the agents of politics as persons with lives of their own to live according to aims and principles they adopt for themselves (“free and equal”); a conception of political society as a scheme of cooperation among persons thus conceived, whose projects and principles are prone to run into collision in the spaces of government policy choice; and a conception of political justice as the pursuit of basic fairness in the terms of cooperation.

I don’t say Steve must be making such a distinctly proto-liberal buy-in, only that for aught he has said here he perfectly well could be. But it doesn’t finally matter for my key claim at the moment: that it simply cannot be left that democracy is what democracy does, with no higher-order constitutional-regulatory conception in view to which the self-determining democracy at its peril must conform. To any such conception—it doesn’t matter which—questions of institutional arrangements more and less conducive to that conformance must always be germane and pending. So relocate, if you will, Steve’s formulas to a high-level normative political conception that’s quite decidedly not liberal—say, it is more starkly and deeply communitarian than any liberal conception could tolerate. We could do that. And still Steve’s colloquy with Rawls would have this in common with Karl’s: It would be over whether, for the particular society at hand, a practice of dualist democracy, with or without a law court as its trusted arbiter of constitutional compliance, has better prospects than some alternative for sequential clarification and fulfillment (more or less) of whatever that posited normative conception of politics may be.


Neil Walker rightly reads me to say (following Rawls) that the constitutional-procedural solution to the problem of political liberalism—the problem, that is, of the justification of majoritarian political coercion among citizens free and equal in conditions of reasonable pluralism—can be available only to a citizenry among whom there still remains some common ground of political reasonability, divided as they know themselves to be across a plurality of competing political-moral outlooks. As Neil puts the case, it would be a society “whose directive code is capable of being freely consented to by all members seeking reasonable terms of common living with all other freely consenting members in possession of the same other-regarding attitudes.” In my own formulation (CE at 191), it would be a society whose members share “a tolerance for ‘at-least’ reasonable governmental resolutions of conflicts of liberties . . . , understanding that only in that tolerationist way can they hope to find mutually acceptable justification for democratic political power and hence an available path to government by consent in conditions of reasonable pluralism.”

Such a society, aptly comments Neil, “would be [already] a liberal society.” And it is only with reference to such a society that Rawls can posit constitutionalism as contributory toward (again following Neil) “the achievement of a justified liberal order.” But then you see how the “justified,” there, is conditional on the society being already, in the indicated sense, a liberal one. Now, there might or might not be a case to be made that the right constitutionalist order, somehow imposed, can cause a non-liberal society to turn liberal. If there is one, it is not a case that Rawls undertakes to make in PL. His case there, rather, is one for such an order’s contribution (perhaps indispensable) toward a liberal society’s stabilization as such, in conditions of reasonable pluralism. The aspiration to liberalism is thus to be understood as a stipulation in the Rawlsian political-liberal philosophy, not as an expected output from it.

So Neil reminds us. But then what can all this have to say, Neil asks, to societies that do not meet the stipulation—“that do not have a liberal culture to lose?” Or say to a possible world (right now slouching toward Bethlehem to be born?) in which that might include our own societies? If we—Rawls and then Frank as acolyte—have nothing to offer there, on how constitutionalism à la Rawls might be turned toward regeneration of a lapsed or lapsing liberal-cultural hegemony in our societies, have we reason left for continued pursuit of the project? Might not then the pending verdict of history be one of “dismiss[al [of liberal democracy] as misconceived as a paradigm of good government in the 21st century?” There’s the sting, and of course it’s being delivered these days also by others, in spirit less sympathetic and terms less diplomatic than Neil’s.

To the question thus raised—“Is there anything for them in CE [or in PL]?)—I suppose I could answer again that I don’t know: that such was not Rawls’s project in PL (not on the surface, anyway) and so it hasn’t been mine in CE. But let me dare reach toward more.

It is only given the aspiration to a society that would see the problem of political liberalism as a problem demanding a solution that Rawls (on my reading, see CE at 165-68) would advocate for a style of judicial constitutional review that I have called tolerant, but which I expect not a few readers would dismiss as retreat from the stoutly liberal. But then, as I wrote at the conclusion of CE (at 191),

We don't necessarily have to read John Rawls as loving it [this retreat], either, from a comprehensive-liberal or partisan-political standpoint. We move here, remember, on the turf of institutional design, inevitably imperfect, not that of a cheap and easy affirmation of normative ideals. But I do not think that self-excusing response is the one that Rawls would give. Rather he will say we are facing up, here, to a hard fact of liberal life, that of reasonable disagreement in politics, and to the resulting problem of political liberalism—and in consequence applying the liberal philosophy's own principle of toleration to "philosophy [meaning the liberal philosophy] itself."

“Physician, heal thyself,” we might hear the political-liberal Rawls echoing on to us, “if you do not wish to witness the patient going under.”

Frank Michelman is Robert Walmsley University Professor, Emeritus, Harvard University. You can reach him by e-mail at

Older Posts
Newer Posts