Author: Mark Graber


Rules for the State that Never Shuts Up

Every Friday in September and October, public schools officials across the United States attempt to persuade numerous impressionable minds of the following proposition: “You should come out for the big game and support our team.”  Shortly after that announcement is made on the PA system, students attend a math class in which another public school official attempts to persuade them that, to quote Wikipeida, “the area of the square whose side is the hypotenuse (the side opposite the right angle) is equal to the sum of the areas of the squares whose sides are the two legs (the two sides that meet at a right angle).”  Students then off to English class, where another public official attempts to persuade them that cultured citizens appreciated Victorian poetry.

On a superficial reading, Corey Brettschneider believes all these official efforts at persuasion violate fundamental liberal norms.  His When the State Speaks, What Should it Say vigorously argues that liberal states attempt to persuade citizens only of certain fundamental liberal truths.  On all other matters, Brettschneider maintains, democratic persuasion is inappropriate.  He writes, “The legitimate state should seek to change discriminatory views to the extent that they challenge the democratic value that all persons should be regarded as free and equal.  However, to avoid having the state impose a ‘comprehensive doctrine,’ I argue that persuasive attempts at transformation should only be aimed at those beliefs that are openly hostile to or implausibly consistent with the idea of public equality.”

This seems an implausible theory of government speech, particularly if you think public schools across theory do not routinely violate liberal norms every ten seconds or so.  Perhaps with some strain, we might decide that liberal theory is committed to all scientific truths, since liberalism may have commitments to basic rationality.  I am less convinced that liberalism requires public officials persuade people that they really ought to read Victorian poetry (as opposed to, say, histories of Sweden).  Nothing in liberal theory depends on whether the good and faithful students of Mepham High School are persuaded to support their team in the big game against Calhoun.

The reason I suspect When the State Speaks makes a broad claim that seems to have such obvious counterexamples is that Brettschneider confuses two distinct problems.  The book jacket asks, “How should a liberal democracy respond to hate groups that oppose the ideal of free and equal citizenship?  To this question, Brettschneider gives an interesting, important, largely correct, and, most important, very plausible, answer.  The state should grant all persons the right to advocate non-liberal beliefs about public equality, but liberal states should also engage in aggressive attempts to persuade citizens that liberal egalitarian values are sound.  There are, of course, always details that one might criticize as others in this symposium have done and will do, but I suspect few will dispute the basic principle that liberal states ought to use the bully pulpit and the state treasury to promote the cause of liberalism.  Brettschneider in the book, unfortunately, maintains that his providing standards that govern a far broader concern that how a liberal state should respond to hate groups and hate speech.  The introduction promises “a guide to identify when state speech is appropriate, to elaborate its content, and to define its proper limits.”  If we are talking about “state speech” in general, then we need to talk about state efforts to persuade people to support the home team, read Victorian poetry, and recognize the Pythagorean theorem.  States officials routinely attempt to persuade both students and adults on these matters, yet no one thinks this matters have anything to do with public equality or, for that matter, that there is anything wrong with state persuasion (within limits) on these matters. Read More


Solid Liberalism

The most recent Pew surveys suggest that most educated elites are either Solid Liberals, who take the liberal position on almost all constitutional issues of the day, or Staunch Conservatives, who take the conservative position on almost all constitutional issues of the day. The Pew surveys and thers find that conservative elites are more conservative than the average Republican and, unlike most less educated, less affluent and less politically involved Republicans, take the most conservative position on virtually all constitutional issues of the day. Liberal elites are similarly more liberal than the average Democrat, and, unlike most less educated, less affluent and less politically involved Democrats, take the most liberal position on virtually all constitutional issues of the day. These findings differ considerably from similar, but not identical, surveys taken during the heyday of the Warren Court. Those surveys found that elite Republican and Democratic often had more in common with each other than with the average member of their partisan coalition, that elites tended on most issues to be more liberal than other citizens, but that liberalism in one issue (i.e., race) did not necessarily predict liberalism on other issues (i.e., free speech). In short, Americans have moved from a society structured by elite consensus and conflict diffusion to one structured by elite polarization and conflict.

Ordered Liberty is one of many exceptional works trying to work out the precise constitutional vision of Solid Liberals. As is true of most Solid Liberals, Fleming and McClain support the Obama health care program (or think the program should be expanded), same-sex marriage, affirmative action, legal abortion, a sharp separation of church and state, and related policies. Unlike many contemporary liberals, Fleming and McClain maintain that liberalism has a robust theory of the good life and a strong theory of liberal rights can be yoked with a strong theory of liberal responsibilities. While much late twentieth century liberalism insisted on government neutrality on the good life and regarded rights as licenses to harm, Ordered Liberty is more consistent with an older liberalism, exemplified by such thinkers as John Dewey, Jane Addams, and Louis Brandeis, which justified liberal policies as the best means for fashioning good democratic citizens. Fleming and McClain also break from many contemporary liberals by insisting that constitutional interpretation and adjudication ought to be considered important means for realizing liberal constitutional aspirations. In sharp contrast to many twentieth century liberal thinkers, who (to paraphrase Martin Shapiro) loved what the Warren Court was doing but hated the court for doing it, Fleming and McClain enthusiastically champion a federal judiciary committed to their particular version of Solid Liberalism. While I would quibble with some details, I am inclined to take the somewhat stronger position that government can never be neutral on the good life (so all we can do is choose between different liberal or conservative conceptions of the good), and I think that a liberal court appointed by liberal political officials is empowered to impose liberal policies in outlier jurisdictions. In short, as a good Solid Liberal, I find very little of importance to object to in Ordered Liberty or, for that matter, in much recent liberal constitutional thought. As I have previously stated, a polity that took Ordered Liberty or similar works as a constitutional guide, would be a good policy.

At several points in the book, Fleming and McClain threaten to break out of the Solid Liberal mold, but pull back. One point occurs in the discussion on abortion. Ordered Liberty suggests that a state, consistent with constitutional liberty, might persuade women not to have abortions. Fleming and McClain then immediately and correctly note that most legislation aimed at “persuasion” does so largely by presenting false/misleading information or by burdening the choice, rather than trying to convince women through reasonable normative arguments that giving birth is the better choice. They then suggest that a balanced presentation of the merits of abortion is best. Another point where Ordered Liberty threatens but pulls back from challenging ore Solid Liberal beliefs occurs during the discussion of Bob Jones v. United States. Ordered Liberty suggests that the Supreme Court in that case correctly ruled that religious organizations can be denied tax exemptions if they teach racism and other abhorrent doctrines. I confess to be troubled by the analysis. I suspect that most Jewish schools at the very least encourage students to date and marry other Jews, that these schools teach the doctrine that Jews are a chosen people, and that a great many other religions engage in similarly illiberal teaching. Given the importance of the welfare state in the lives of most citizens, a point Fleming and McClain make elsewhere in the book, I confess to some discomfort with the constitutional rule they eventually endorse that forbids religious coercion but permits religious groups to be denied state benefits that go to other religious groups with more liberally accepted beliefs. I think based on what the authors suggest elsewhere in the book, a case can be made that Bob Jones ought to be rethought. Having said this, however, I should cheerfully acknowledge that Fleming and McClain have thought far more seriously about these matters than I have and I am sure that should they care to response to this point, they will have a strong explanation as to why they did not cross liberal boundaries on both abortion and Bob Jones. The best I can say is that Ordered Liberty would have been more interesting to me (and maybe to no one else) if the authors had more aggressively spelled out how pro-life an American constitutional regime could be and suggested that Bob Jones be rethought (my opinion, by the way, is that the decision was correct when decided primarily because of Reagan Administration shenanigans which created the real possibility that a decision for Bob Jones could be plausibly interpreted as placing the racist policies of that institution within the parameters of legitimate public discourse. The decision comes out differently if a liberal president urges maintaining the tax exception on the principle of freedom of religion for hateful religions). I like surprises in my movies and academic reading, but the true may simply be that the reason why so many educated Americans are either Solid Liberals or Staunch Conservatives (with a libertarian bent) is that those are the most coherent constitutional positions at this time.

My more serious concern with Orderly Liberty concerns that state of a constitutionalism or the liberal constitutional genre. A great deal of ink has been split over the problems of polarization in American public life. Certainly no reader of Concurring Opinions needs to be informed that the only issue with respect to the upcoming sequester is how bad those harms are likely to be. To get out of our present situation, one of two alternatives must happen. Abraham Lincoln, the patron saint of contemporary American constitutionalism, expressed the first alternative when he asserted, “I believe this government cannot endure permanently, half slave and half free,” but “will become all one thing or all the other.” So, on this vision, our polarization will end when either the United States becomes committed to a liberal regime or Americans become committed to a conservative polity. Fleming and McClain have tirelessly labored to convince their fellow citizens that the best interpretation of American constitutional commitments requires us to become the state envisioned by Solid Liberals. To the extent I find that project tiresome, the only reason is that I was fully convinced long ago that a country of Solid Liberals is a far more constitutionally attractive regime than a country of Staunch Conservatives. My more serious problem is that I suspect the project of persuading Americans to become a predominantly liberal or a predominantly conservative regime is likely to be no more successful than the 1850s project of persuading Americans to become either a predominantly slave regime or a predominantly free regime. If this hunch is correct, and we are not prepared to bring the fully free (or Solid Liberal) regime by using the Union Army, Americans will need a constitutional theory of the center that is more than a simple commitment to judicial minimalism (which in Sunsteinian form is another version of the constitutional theory of the left). Given that the vast majority of constitutional theorists are Solid Liberals or Staunch Conservatives, that constitutional theory will have to be developed by intellectuals whose beliefs are decided not centrist. The good news is that there are more than enough law professors tilling in the constitutional theory fields, so that the mere fact that the fields of liberal constitutional theory strike me as overpopulated is hardly a problem. Still, I do hope we see more constitutional theory in the near future that attempts to figure out how we can better live with the citizens we have than more constitutional theory that tries to persuade the citizens we have to be something else (or claims that, deep down, we all really agree).


Redeeming Potholes

Consider constitutional redemption from the perspective of the government obligation to fill in potholes. Filling in potholes is an important government activity. People tend to regard government as legitimate when government fills in potholes and performs similar tasks effectively. Constitutions are designed so that government will be led by people who know how to fill in potholes or at least know who to call when a pothole needs filling in. The most important constitutional question in 2011, as Sandy Levinson never tires of reminding us, is whether the Constitution of the United States (or many state constitutions) provides a means of staffing the government and making rules that enables government to do a decent job filling in potholes.

The central problem constitutionalists must face is how can we get people who agree on the need to fill in potholes to cooperate when they disagree on same-sex marriage, affirmative action, prayer in public schools and other obsessions of American constitutional theory. Most constitutions rely on some combination of the following two strategies. The first is to come up with some compromise, deeply unsatisfying to everyone, which nevertheless enables people to believe they are better off cooperating and filling in the potholes, than standing on principle and confronting impassable streets. The second is for the constitution to combine vague generalities that each side can declare with some plausibility supports their position with a set of political procedures that prevent one side from imposing too much of their view on the other unless they have successful persuaded pretty much all relevant elites that they are correct.

Some times, the resulting constitutional politics permit us to talk about our differences over principle, with the winners being those who mobilize the most people. But sometimes we just have to live with each other. My spouse is not going to become a New York Giant football fan, my home office will always be a mess, the University of Maryland Law School (where I work) is not going to relocate to northern New England, the United States (where I live) is not going to place strong limits on how much money a person can make. Whether some ketubah, contract or constitution might be interpreted to require a different result is beside the point. Living with other people entails abandonment that redemption is likely to occur on your terms. The real constitutional question is whether we are better off living with the Tea Party or moving elsewhere (or following the sainted Abraham Lincoln, ordering troops to shoot those with whom we have a constitutional disagreement).

The constitution is redeemed in this view when our debates over all the constitutionally peripheral issues (slavery, fundamental human rights, basic dignity and equality of all human beings, etc.) do not interfere with government capacity to fill in potholes. By placing fundamental human rights at the core of constitutionalism, I think we reverse priorities. Constitutions are not about redeeming deep foundational principles. They are about potholes, the mundane things in our lives that we all agree government should do, and under a good constitution, government will do well.


Truth and Story Telling

Consider the following problem. Abraham Lincoln appointed five justices to the Supreme Court, Noah Swayne, Samuel Miller, David Davis, Stephen Field, and Salmon Chase. Only one, Salmon Chase, seemed to care deeply about persons of color. What explains the judicial hostility to Reconstruction, even among Lincoln’s judicial nominees?

Some explanations focus on judicial independence. Life tenured justices, we are told, often vote in ways that surprise their political sponsors. Other explanations focus on the political construction of judicial power. Lincoln’s judicial nominees were not committed racial egalitarians because Lincoln was not a committed racial egalitarian. Other kinds of explanations are also possible, as well as more sophisticated versions of the judicial independence and political construction theses.

Much scholarship on American and constitutional developments seeks to answer this and related questions. Political scientists and historians think explaining why Lincoln’s judicial appointees were often hostile to Reconstruction may cast light on the relationship between the federal judiciary and the rest of the American regime. We do not, however, think explaining why Lincoln’s nominees took conservative positions ought to tell as much about the constitutionality of affirmative action and gay marriage.

The main virtue of Constitutional Redemption, my first post suggested, is that understanding constitutional argument as a form of story-telling enables us to distinguish the sorts of reasons we ought to give when explaining judicial behavior during Reconstruction and interpreting the Fourteenth Amendment. When explaining judicial behavior, getting Lincoln right is very important. If we overestimate Lincoln’s commitment to racial equality, we may overestimate judicial independence from presidential politics and, as a result, make political mistakes in our time. When interpreting the Fourteenth Amendment, getting Lincoln (or Bingham or whoever) right is less important. If we overestimate Lincoln’s committee to racial equality, we are likely to more good than wrong in the world.

My central concern with originalism is that originalism tends to conflate two very different kinds of historical inquiries, the sort we do when we are trying to explain the past and the sort we do when we are trying to determine our fundamental values as a nation. Worse, originalism tends to teach us that the way we combat our opponents is hit them over the head with eighteenth century dictionaries and Volume 5 of the Collected Works of Abraham Lincoln. The truth of the matter is that political movements only arise and endure in a country such as the United States when they can tell a story of American history that is about as true to history as the other enduring narratives of the time. Professor Tsesis’s narrative of Abraham Lincoln is presently compelling because no one wishes to contest the moral. The minute, however, he invokes Abraham Lincoln to support redistribution, affirmative action or the designated hitter rule, members of the opposite party will be armed with six Lincoln quotes that just demonstrate the opposite.

Moving to ever more abstract principles is likely to be inadequate for two related reasons. First, at some point, the principles become so abstract as to be meaningless. Second, as the principles become less abstract they become far more contestable. Consider Rogers Smith’s claim in Civil Ideals that racism is an independent ideology that is deeply rooted in the American political tradition. Suppose that is true. Most framework originalism claim that, we just happen to be lucky that this principle, deeply rooted in the American political tradition, just happens not to be deeply rooted in the American constitutional tradition. Put differently, should the debate over the constitutional status of racism depend on when and why Abraham Lincoln abandoned colonization.

Constitutional Redemption, minus some of the last chapter, belongs in the new genre of constitutional politics. A central them of Constitutional Redemption is that political movements succeed by out-organizing and out-voting their rivals. The Supreme Court advances their constitutional vision when they gain the power to put sincere believers on the federal bench (or are at least able to veto rival attempts to stack the courts with those of a rival faith). Constitutional stories are a central means by which the faithful are rallied, but we will gain nothing merely by waiving one of my footnotes and claiming our history is 51.35% more accurate than someone else’s history.


Originalism as History and Story-Telling

“The whole nation is interested that the best use shall be made of the territories. We want them for the homes of free white people.”

This is what he said. This is what Abraham Lincoln said [You should be listening to “A Lincoln Portrait.”} He said, “the free Territories of the United States . . . should be kept open for the homes of free white people.” He said, “The free white men had a right to claim that the new territories into which they and their children might go to seek a livelihood should be preserved free and clear of the encumbrance of slavery, and that no laboring white man should be placed in a position where, by the introduction of slavery into the territories, he would be compelled to toil by the side of a slave.”

These words are absent from Aaron Copland’s magnificent “A Lincoln Portrait,” as they are absent from Jack Balkin’s equally magnificent and culturally important Constitutional Redemption. Aaron Copland’s Lincoln declares, “As I would not be a slave, so I would not be a master. This expresses my idea of democracy. Whatever differs from this, to the extent of the difference, is no democracy.” Jack Balkin’s Abraham Lincoln describes the United States as “conceived in liberty and dedicated to the proposition that all men are created equal.” Neither cite Lincoln’s opposition to making free African-Americans citizens of Illinois or giving them the ballot.

Constitutional Redemption forces us to confront the tensions between these different Abraham Lincolns, even as only one Abraham Lincoln is explicitly presented. The Abraham Lincoln Balkin presents speaks for the aspirations of the American constitutional order and for the promise of redemption. Americans can redeem their political order from the injustices of the present, both Balkin and Lincoln agree, by returning to first principles, whether those first principles are those ratified in 1789, 1791, 1868 or, perhaps, 1932-36. Of course, the proponents of the alleged injustices of the present often assert that the citizens who truly committed to first principles. Stephen Douglas thought a reaffirmation of herronvolk democracy the cure to all that afflicted the United States during the 1850s. The Abraham Lincoln of the sainted Dred Scott and the Problem of Constitutional Evil was not entirely unsympathetic with this point of view.

The crucial move Balkin makes is recognizing that the debate over first principles is resolved by political movements and storytelling, rather than by historical citations in Supreme Court opinions. The course of contemporary constitutional politics largely depends on which political movements can tell the stories about the American past that attract the most support. When telling these stories, crucial players need to be unambiguously presented. Abraham Lincoln must be the great emancipator, and not a crafty politician quite willing to make dubious deals to gain office. Copland’s Lincoln must be Balkin’s Lincoln. The student of American constitutional development is engaged in a very different enterprise. More often than not, that project is designed to highlight complexities and differences rather than objection lessons or inspiration for the present.

Nevertheless, some tensions may remain between the first substantive chapter of the work, “Just a Story,” and the last “How I Became an Originalist.” One danger is that the practice of story-telling originalism may drive out the practice of historic originalism. When telling attractive stories about Abraham Lincoln in order to inspire others to act more justly in this world, we may forgot that other disciplinary actors with other purposes may have important reasons for providing a different account of Lincoln. We may rest content claiming that Lincoln had an erroneous application of the principle of equality, never understanding, perhaps, either than Lincoln was committed to very different principles or believed that egalitarian principles had to be balanced with other principles of equal constitutional pedigree.

More important, people may confuse the legitimate role of story-telling originalism with an illegitimate form of historical originalism. Originalism, without the “story-telling” adjective, risks giving normative status to historical research done for other purposes. Justice Jackson famously declared that “fundamental rights” should “depend on the outcome of no election.” Balkin understands that is wrong. But fundamental rights certainly should not depend on what I discover when I research principles people in 1868 thought underlay the post-Civil War Amendments.