Thin constitutionalism, thick public discourse
First, let me thank both Robin and Katherine Baker (Kathy, if I may, though we haven’t met) for their engaging responses to my view and to Matt Lister who posted terrific comments defending my position. Yes, my argument was for thin constitutionalism not for government neutrality more generally. Robin argues for a thin constitutionalism as well, though for reasons that differ from my own. In my view, the fact that we are a diverse people, with different views about what is good, suggests that constitutional decisions ought to rest on the thinnest possible grounds. A decision that says Prop 8 demeans gays and lesbians is thinner because the principle on which it rests (that all people are entitled to equal respect) is one that all can reasonably be expected to endorse. While people will surely disagree about the application of that principle in the individual case (i.e. about whether in fact Prop 8 stamps gays and lesbians as inferior), that is a disagreement at the level of application rather than at the level of principle. By contrast, if a court were to strike down Prop 8 because it instantiates the wrong conception of marriage, a court would be constitutionalizing a particular, contested conception of marriage. Doing so is needlessly alienating to those who endorse a different conception of marriage.
A similar argument could be made about the way that the Supreme Court addresses affirmative action cases. To me, the right question for the Court to address when deciding these cases is whether a university or public school policy of considering race denigrates people of any race, whether it functions, as Dworkin once argued, as a public insult. In my view, it does not. For this reason, policies that excluded African-Americans did violate equal protection, but affirmative action policies do not – because they do not express that whites (or non-whites) are less worthy of concern or respect. Some may disagree with my assessments of what these policies express. Justice Thomas objects to affirmative action for a reason along these lines. He thinks that affirmative action programs insult blacks by implying that they are less capable. According to the theory I adopt, this is an argument worth taking seriously.
The current Court looks instead at the use of race in both university admissions and K-12 school assignment policies through a very different lens. Rather than asking whether these policies send the message that blacks are inferior (which I think they do not, and Justice Thomas thinks they do), the Court asks whether diversity is a compelling governmental interest – a question it must answer by opining on whether a good education (at the university or elementary and secondary level) requires a diverse student body. So, for example, in Parents Involved we saw Justice Breyer arguing that a diverse classroom is essential to public education, rightly conceived, because it “teach[es] children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation”– a claim that Justice Roberts flatly denies. But should the resolution of whether consideration of race in the context of public education violates the constitution really turn on a theory of education? I think not.
At the level of constitutional law, I am in favor of the thinness of liberalism. But what about at the level of public discourse, in which we law professors play an important role, about what laws we ought to have – laws that define marriage and endorse a theory of good education. At this level, of course one must have a theory of the good and one may surely and should surely put it forward by making moral arguments about why it is good. At the level of theory, I don’t think most classic liberals would disagree. The only limitation on advancing one’s own theory of the good in the public domain is Rawls’ conception of public reason – the reasons one offers for one’s view should be ones that are accessible to others. Here the arguments offered by Robin and Kathy for genderless marriage – views I share – are surely in this vein. So what’s all the fuss about then?
As I read Robin’s book, it isn’t an argument against the claims of classic liberals but rather an argument against the space they have taken up and against the creep of these views into places that they don’t really belong. The form of the argument reminds me of a reaction I once had to the scandal many years back about the Olympic skater Tonya Harding (remember her?). She was accused of being complicit in an incident in which her ex-husband attacked her skating rival. As a result, she was threatened with being removed from the Olympic team. At the time, many people thought this was unfair and in response would object that “she is innocent until proven guilty” or something along these lines. In doing so, they were borrowing standards from the criminal justice context and applying them to the context of the Olympic team. But we have this presumption of innocence in the criminal justice context for reasons specific to that context – for example, that one may lose one’s liberty. Representing our country as an Olympic athlete is a high honor and privilege and not something one is entitled to (like liberty) unless proven guilty.
The point I want to make here is that folks had imbibed the principle “innocent until proven guilty” and applied it where it didn’t belong. While the principle is right for the criminal justice context, it isn’t right for all contexts. That’s a distinction that gets lost as the culture absorbs the value. Robin is right that something similar has happened with liberalism, aided (like with the presumption of innocence) by our cultural conflation of constitutionalism with morality [This is the unfortunate corollary to the natural law thesis that an unjust law is no law at all that Robin critiques – i.e. the tendency to see the law we have as therefore just.]. One can surely argue that the Constitution ought not to endorse a particular conception of marriage or a particular educational philosophy while simultaneously thinking that laws may and should adopt views about these same issues (so long as they don’t conflict with thin constitutional principles). We should argue for particular ideals of marriage and for the sort of diverse classrooms that develop civic virtue and toleration on the grounds that these institutions promote human flourishing. And we should do so by making moral arguments that depend on thick theories of the Common Good that we endorse and we hope others will as well.