This is the second of a series of posts on the "great debate" between originalists and living constitutionalists. In this post, my aim is to discuss methods of justification in normative constitutional theory. These posts introduce ideas that I present in greater depth in a work-in-progress:
For a very short statement of the case for originalism, see:
The other posts in the series so far are as follows:
In this post, we will look at the nature of the debate between originalists and living constitutionalists. Our focus will be on three questions:
- Should normative justifications for originalism (or living constitutionalism) be legal or moral?
- If moral justifications are appropriate, should the reasons be deep, comprehensive, or shallow?
- If the appropriate method for evaluation of moral justifications is reflective equilibrium, is the approrpiate kind of reflective equilibrium narrow, wide, or broad?
Post continues after the break!
Should normative justifications for originalism (or living constitutionalism) be legal or moral?
There are two distinct ways that justification can proceed in normative constitutional theory. We can approach justification from within the practice of law. From the internal perspective, the appropriated justifications will be legal. Legal justifications are normative—because the law is a system of norms.
So, one approach to justifying the Constraint Principle would be to argue that it is a legal norm that is currently in force. For example, if one accepted Hartian positivism, one might argue that the Constraint Principle is a legal norm that follows from the rule of recognition that serves as the ground for identifying all legal norms in the United States. Or one might argue that the Constraint Principle is part of the rule of recognition; that argument would require a showing that the Constraint Principle is part of the social rule that enables officials to identify what is (and is not) law in the United States. Or one could dispense with the theoretical apparatus, and argue in a lawyerly way that the constitutional text is binding on all officials. For now, I will simply note that in this Article, the argument that originalism is the law does not play a central role—although elements of that argument
The alternative to the internal perspective is an external one. Whether or not originalism is the law, we can ask whether our constitutional practice should incorporate the Constraint Principle. In other words, we can ask whether the Constraint Principle should be adopted from the perspective of political morality. Viewed in this way, the debate over constraint is a debate in political philosophy or political theory—and it is connected to wider debates in general normative ethics (as are other questions of political morality).
Many originalists believe that our current constitutional practice is only partially originalist and that a return to the original meaning of the constitutional text would require substantial revision of constitutional doctrine. Originalists with this view can frankly acknowledge that originalism is a program of law reform—and hence that it must be justified on the basis of moral (rather than legal) arguments. Other originalists may see the relationship as more complicated. They may believe that the status quo incorporates a good deal of originalism at the level of constitutional principle but also includes substantial deviations from originalism at the level of constitutional practice. These originalists may believe that originalism is supported by the deep structure of constitutional law but that it lacks support in substantial areas of the surface structure. Originalists of this variety might argue that the fact that the deep structure of our constitutional practice includes the Constraint Principle provides a pro tanto reason for reform of the nonoriginalist aspects of the surface structure.
At this stage in the development of the argument for the Constraint Principle, the most important thing is to get clear on the distinction between internal legal arguments for originalism and external moral arguments. And we also need to recognize that marking this distinction is itself a controversial move. Interpretivist theories of the nature of law, such as Dworkin’s theory, “Law as Integrity,” or Mark Greenberg c c’s moral impact theory may deny there is a sharp distinction between moral and legal justifications. We should recognize that this metatheoretical disagreement exists and must be considered (in due course) in developing the case for originalism, but in this Article, some of the metatheoretical issues are bracketed due to their complexity. The remainder of this Article will advance a case for originalism that does not depend on the proposition that originalism is the law. That is, the case will rest on arguments of political morality that aim to justify originalism as a program of law reform, assuming (arguendo) that originalism is not yet “our law.”
Should justifications for constitutional theories be deep, comprehensive, or shallow?
Consider three strategies for justifying the Constraint principle, which I will call the “deep strategy,” the “comprehensive strategy,” and the “shallow strategy.”
The first strategy for justifying the Constraint Principle starts with the deep reasons provided by the true or correct foundational views in political philosophy, normative ethics, and/or metaethics. For example, one might to argue for the Constraint Principle by assuming (or arguing that) welfarism is the correct view in normative ethics and then argue that welfarism should also serve as the basis for political morality. One could then argue that the Constraint Principle is justified on welfarist grounds. A strategy like this forms the basis of John McGinnis and Michael Rappaport’s book, Originalism and the Good Constitution. One can imagine similar strategies that take Kantian deontology, virtue ethics, or social contract theory as their starting points. The difficulty with these strategies is that the starting points are deeply controversial given the pluralistic nature of the political, moral, and religious cultures in the United States. Welfarism may be a coherent and attractive view, but it is not accepted by most Americans or by the majority of official constitutional actors or by most constitutional theorists. Disagreements at the foundational level have persisted for centuries, and there is no reason to believe that any foundational view will achieve consensus status in the foreseeable future.
This suggests a second strategy—a comprehensive approach utilizes all of the plausible deep normative theories. One might argue that the Constraint Principle is justified by each and every plausible view in moral philosophy—and by every plausible view in theological morality and political theory as well. But this strategy would be difficult to execute—even if viewed as the project of an entire lifetime of scholarly activity. There are too many plausible views in moral and political philosophy and too many theological views. And the work of connecting the deep premises that constitute any one of these views to constitutional theory is itself complex, with many layers of connection and many possible branches in the argument to be considered. If the second strategy could be executed, it would provide a very strong argument for the Constraint Principle, but as a practical matter, the second strategy is unavailable.
These considerations lead to the third strategy. We can attempt to justify the Constraint Principle on the basis of (relatively) shallow reasons that can be shared by the public in a pluralist society. This shallow strategy is closely related to the Rawlsian idea of justification through public reasons and Cass Sunstein’s notion of midlevel principles. Shallow reasons can be supported using the method of wide reflective equilibrium which is explored in greater depth below. To preview that discussion, reflective equilibrium begins with our existing opinions about particular cases, intuitions about hypothetical cases, and beliefs about general principles of constitutional theory. We ask whether the Constraint Principle itself and the justifications upon which it rests are consistent with these opinions, intuitions, and beliefs. If there are inconsistencies, we adjust our considered judgements.
If the appropriate method for evaluation of moral justifications is reflective equilibrium, is the appropriate kind of reflective equilibrium narrow, wide, or broad?
Given the nature of the problems of constitutional theory, we should not expect that the claims made about constitutional meaning will usually be justified by deductive proof. Of course, deductive proof is likely to play a role at the level of supporting detail. Some positions in constitutional theory may involve contradictions, and these positions are demonstrably false. But in other cases, our starting points will be our prereflective beliefs about various matters, ranging from the very particular and concrete to the general and abstract. Such starting points will include relatively particular beliefs like “Brown v. Board was rightly decided” and relatively abstract beliefs like “The rule of law values of predictability, certainty, consistency, and publicity are an important component of political morality.” On this picture, the method of constitutional theory starts with an examination our prereflective beliefs and their relationships. Some beliefs may be inconsistent. In that case, one or more of the beliefs may need to be reexamined and revised. Gradually, our prereflective beliefs will become more refined and coherent. At some stage, the theorist will begin to regard some of these beliefs as considered judgments. A wholly successful constitutional theory will bring all of our considered judgments into reflective equilibrium, a relationship of consistency and mutual support.
We need to get more specific about the kind of reflective equilibrium that is relevant to constitutional theory. Let us stipulate to the following definitions that are tailored to the constitutional context:
Narrow Reflective Equilibrium: The considered judgments of an individual on constitutional theory are in narrow reflective equilibrium when they are consistent and mutually supportive with each other.
Wide Reflective Equilibrium: The considered judgments of an individual on constitutional theory are in wide reflective if they take into account the “conditions under which it would be fair for reasonable people to choose among competing principles [of constitutional theory], as well as evidence that the resulting principles constitute a feasible or stable conception of justice, that is, that people could sustain their commitment to such principles.”
Broad Reflective Equilibrium: The considered judgments of a political community are in broad reflective equilibrium when a broad group of citizens are each in wide reflective equilibrium such that there is an overlapping consensus on constitutional principles that are sufficiently similar to provide adequate guidance for constitutional practice.
The point of the discussion that follows is to show that broad (or wide) reflective equilibrium is the appropriate method for constitutional theory. Let us begin by examining the contrary position—that narrow reflective equilibrium provides the correct method of justification for normative constitutional theory. From the point of view of an individual (a judge or a constitutional theorist), narrow reflective equilibrium will result in a constitutional theory that is coherent. The individual theorist’s views will be consistent and mutually supporting. Narrow reflective equilibrium will insure that the individual’s constitutional views are consistent with that individual’s general views about political morality. Narrow reflective equilibrium begins with individual intuitions and ends with reflective equilibrium among considered judgments—from the point of view of the individual. But it is clear that narrow reflective equilibrium does not provide the kind of justification that is appropriate to a constitutional theory for a pluralist society in which there is disagreement about deep matters—what Rawls called comprehensive religious and philosophical conceptions of the good. Our discussion of deep and shallow justifications shows why this is the case. If each individual seeks internal consistency, then different individuals will reach reflective equilibrium on different constitutional theories. But the primary role of a normative constitutional theory is not to provide internal consistency, but is instead to provide a shared basis for agreement on a framework for the decision of constitutional cases.
Narrow reflective equilibrium for each individual will produce a plurality of inconsistent views corresponding to the plurality of views about deep matters. This point can be illustrated (albeit simplistically) by considering five hypothetical justices, each of whom seeks narrow reflective equilibrium for their own constitutional theory:
Justice Immanuel holds a comprehensive deontological theory of the good and the right. that the plain meaning of the constitution be observed strictly and without exception by all officials and citizens.
Justice Jeremy holds a comprehensive welfarist theory of the good and the right. His constitutional theory requires that each constitutional case be decided in the way that produces the greatest sum of preference-satisfaction.
Justice Rosalind holds a comprehensive virtue-centered theory of the good and the right. Her constitutional theory requires that each constitutional case be decided in accord with the virtue of practical wisdom so as to promote human flourishing.
Justice Francis holds a comprehensive religious conception of the good and the right. His constitutional theory emphasizes the promotion of the true faith as the central aim of constitutional decisionmaking and in particular requires that the constitution be interpreted to acknowledge the privileged role of the true faith in matters such as state support for religion.
Justice Gerald holds a theory of political morality in which equality of income and resources is the highest political value. His constitutional theory emphasizes the promotion of economic equality as the central aim of constitutional decisionmaking.
The justices are each in narrow reflective equilibrium with respect to their own deep views, but none of the justices can affirm the method of any the others. Moreover, members of the public who affirm a different comprehensive conception than any of the justices will view that justice’s constitutional theory as both wrong and illegitimate: internal consistency is not a sufficient basis for a shared agreement among citizens given the fact of pluralism.
Now consider the contrasting case of broad reflective equilibrium. Broad reflective equilibrium aims for consistency and mutual support among considered judgments that can be stated as public reasons. Each Justice would take into account the fact of pluralism and seek agreement on constitutional principles that can be affirmed on the basis of considered judgments that can be shared by an overlapping consensus of reasonable citizens. Narrow reflective equilibrium is structured so as to produce constitutional dissensus—with different individuals and groups affirming different constitutional theories. Broad reflective equilibrium aims at constitutional consensus; more precisely, broad reflective equilibrium should aim at the greatest convergence among constitutional views that is practicable. Practicability could be theorized in various ways; for example, we might define the practicable by reference to Rawls’s notion of the burdens of judgment.
To reach broad reflective equilibrium, each of the hypothetical justices will need to avoid direct reliance on their own comprehensive views and instead to seek for public reasons or midlevel agreements. Given the fact of pluralism, constitutional theory requires principled compromise (broad reflective equilibrium) and not internal consistency (narrow reflective equilibrium). Because broad reflective equilibrium aims at an overlapping consensus among reasonable citizens, its achievement requires engagement among constitutional theorists and between constitutional theorists and the wider political culture.
Tomorrow's post will discuss the constitutional status quo.