Does a theory of the good belong in the constitution?
I want to start by thanking both Danielle Citron and the folks at Concurring Opinions for hosting this robust and interesting discussion and Robin West for writing such an interesting and provocative book, a book that fills a gap in jurisprudential thinking and asks us to explore both what we, as law professors, do and what we think the role of both law and legal scholarship should be.
I want to join this discussion by engaging with both the first part of Robin’s book and with the interesting post by Katherine Baker, which looks the District Court and 9th Circuit opinions in Perry v. Schwarzenegger, the case addressing whether California’s Prop 8 violates either the due process or the equal protection clauses of the federal Constitution. The comparison of the two opinions, as Baker explains, provides a window into the position Robin proposes. Robin implores us to adopt a more substantive jurisprudence, one that asks about the nature of the Common Good, or the good for human beings and how the law can best promote it. As Baker rightly points out, the District Court opinion in Perry adopts a position on such a substantive question. In striking down Prop 8, Judge Vaughn Walker finds that gay couples have a liberty-based right to marry. However, Prop 8 would only deny that right to gays and lesbians if the right to marry includes the right to marry a person of the same sex, as well as a person of the opposite sex. In order to reach that result, Walker must decide what marriage is, rightly conceived. He does. In his view marriage is, at its root, a “union of equals.” While this view is underdeveloped, it is the sort of inquiry Robin (and Baker) endorse
The 9th Circuit, by contrast, rests its opinion reaching the same result on a classically liberal view – in the Dworkinian vein – that Prop 8 violates the Constitutional guarantee of equal protection because Prop 8 fails to treat gay men and lesbians as equal citizens. While Baker is right that the specific rationale the 9th Circuit adopted relied on the fact that rights were first given then taken away, and is thus of limited application, one could easily imagine a broader rationale along the same liberal lines. Denying gay men and lesbians the right to marry the person they choose expresses unequal regard for their interests and demeans them by stamping their unions as inferior, or something like that. This equality-based rationale makes no statement about what the nature or good of marriage is or how it contributes to human flourishing. The question posed by the contrast between these two ways of addressing this issue is this: should we see our constitution as including a substantive view of marriage?
In my view we should not, which is why I am far more sympathetic to the jurisprudential natural law theorists Robin critiques. The impulse or starting place of this liberalism is the recognition of the deep pluralism of our society. Given that we are a people with vastly different views about the sorts of questions Robin asks us to engage with, what should our laws look like so that we fairly and respectfully treat people with different substantive moral views? At least as to questions of constitutional law, I think the traditional liberals have it right. Our constitutional principles ought to be ones that people with different substantive moral views about the nature of the good and human flourishing can all accept. In my view, the 9th Circuit’s conclusion that Prop 8 violates the Constitution because it denigrates gays and lesbians is such a conclusion precisely because we can all accept the principle that law must treat each of us with equal respect.
As a matter of Constitutional law, I prefer the thinness of the position she critiques. However, I agree with Robin that a jurisprudence that has been focused on constitutional law and adjudication has neglected questions about the duties of legislators and the development of an argument about how law can serve the real interests of people rather than merely satisfy their preferences. She is certainly right to challenge us along these lines.