Constitutional Theory of the Center: Response to Mark Graber

James E. Fleming & Linda C. McClain

We thank Mark Graber for generously blogging not only on this week’s concurring opinions symposium on our book, Ordered Liberty, but also on last week’s balkinization symposium on it. Despite his high praise for our book in both places, he confessed to “some impatience” with our theory there because of our concern to work up multiple justifications for controversial basic liberties and to finding projects like ours “tiresome” here. Last week, we urged him to develop more patience with and even to join our project.
We will not repeat those arguments here. Instead, we shall respond to his call for “constitutional theory of the center.”

Graber begins by painting a picture of increasing polarization in American politics and American constitutional visions, contrasting Solid Liberals with Staunch Conservatives as described in a 2011 Pew Research Center typology, the latest in a series of similar typologies.
Graber portrays our theory as trying to “work out the precise constitutional vision of Solid Liberals,” although he acknowledges that our constitutional liberalism is importantly different from the theories of many contemporary liberals. His serious concern is with how to get out of our present situation of polarization in American public life, including in constitutional theory. His proposal is that “Americans will need a constitutional theory of the center.”

We have three responses to Graber’s call for a constitutional theory of the center. First, in an important sense, our constitutional liberalism is (or at least aims to be) a theory of the center. We develop a third theory between “liberal neutrality” and comprehensive moral views (whether liberal or conservative). We also engage with rather than simply dismissing conservative and communitarian criticisms of liberalism for taking individual rights too seriously, to the neglect of responsibilities, virtues, and the common good. In this sense, we worry about trying to match the constitutional liberalism we propose with the political position of “Solid Liberals.” A central concern of the Pew survey is to document polarization – the “fractious” political mood of the public, and the increasingly “doctrinaire” political attitudes at “both ends of the ideological spectrum.” At those ends are, of course, the Solid Liberals and Staunch Conservatives. We certainly share the Solid Liberals’ more positive view of government and its responsibilities than that held by Staunch Conservatives. However, we know little about Solid Liberals’ view of the Constitution, except that most believe the Supreme Court should “base its ruling” on what the Constitution “means in current times,” by contrast (as Staunch Conservatives believe) based on what it “meant as originally written.” Like Solid Liberals, we are not originalists. Beyond that, it is hard to know if Solid Liberals would embrace our constitutional liberalism.

Furthermore, we engage with perfectionist criticisms of liberalism – both conservative and liberal – by developing a “mild form of perfectionism” that embraces a “formative project” of inculcating civic virtues. What is more, we accept certain originally conservative constitutional doctrines as settled, even though as an original matter we would not have gone down those roads, e.g., governmental persuasion through imposing what many liberals have decried as “unconstitutional conditions.” Finally, instead of firmly insisting, as many liberals do, upon “taking rights seriously” through strict scrutiny for fundamental rights under the Due Process Clause, we debunk “the myth of strict scrutiny for fundamental rights” in favor of an understanding of the “rational continuum of ordered liberty,” developed by analogy to a formulation of Justice Harlan, the most conservative member of the Warren Court. As a consequence, we acknowledge considerable latitude for government to encourage responsible exercise of rights and to inculcate civic virtues, undertakings that are anathema to some liberals, perhaps including Solid Liberals. More generally, as Robert Tsai recognizes in his second post: we are not simply working up a coherent theory for what Graber calls “Solid Liberalism” but are making “an effort to bridge not only intellectual divides but also partisan ones, i.e., not simply liberal preferences masking as legal theory.” That confirms the first sense in which our theory, despite Graber, is “a constitutional theory of the center.”

Second, in another sense, we fear that a constitutional theory of the center would be misguided and to no avail. We should ask, what is the aim of constitutional theory? And who is its audience? If the audience is the nine members of the Supreme Court and the aim is to persuade at least five of them to adopt a certain position, then a constitutional theory of the center at the present time would be designed to appeal to Justice Kennedy, the swing justice or median voter. But we think that the project of persuading Justice Kennedy is a better task for constitutional litigators than for constitutional theorists. David Boies and Ted Olson can do a better job of that, e.g., in the context of the issue of same-sex marriage in the Perry litigation, than we or any other constitutional theorists can. We are not among the constitutional theorists who disparage Kennedy: we think that the project of formulating arguments that will persuade him is important and worthwhile, not an unfortunate muddle. But we don’t think that he is going to be persuaded by constitutional theories who turn from Solid Liberalism or Staunch Conservatism to the center, and in any case he is not going to be persuaded by a full-blown coherent theory of the Constitution of the sort constitutional theorists might work up, even if they are centrist. He is going to be persuaded (or not) based on how persuasive he finds the analogies between Romer and Lawrence, on the one hand, and Perry, on the other. The median voter typically will be pragmatic, eclectic, in favor of reasoning by analogy from one case to the next in the manner of common law constitutional interpretation, and likely to balance or muddle through rather than be persuaded by a coherent “constitutional theory of the center.”

If the audience is voters, we would think that the median voter is not likely to be persuaded by a coherent constitutional theory, even of the center. We are not among the constitutional theorists who disparage median voters (or voters in general for that matter), but we think at the present time that what makes a median voter a median voter – much like what makes a swing state a swing state – is that the voter or state is not committed to a coherent political or constitutional theory, even of the center. The median voter, like the swing state, is won over by a pastiche of positions that do not cohere well around the programs of Solid Democrats or Staunch Conservatives. The median voter is likely to be pragmatic, eclectic, and moderate, probably skeptical of general theories. The task of persuading the median voter is better undertaken by political consultants and strategists weaving together a pastiche of themes and arguments than by constitutional theorists trying to develop a centrist theory.

In short, we envision a division of labor: individual constitutional theorists need not aim at persuading the median justice or the median voter. Those are jobs for which constitutional litigators and political strategists are better suited.

Third, there is nonetheless a sense in which the pluralistic practice of constitutional theory as a whole generates constitutional theory of the center. Not all constitutional theorists have to aim for the center for the practice itself to hit it. Constitutional theory as a whole, practiced pluralistically, offering multiple justifications for a controversial right in a diverse liberal democracy, may help build what John Rawls called an “overlapping consensus” in support of protecting the right. (Here we draw, again, from our post in balkinization urging Graber to have more patience with the project of working up multiple justifications for rights.) Consider Lawrence, recognizing a right of same-sex intimate association. Minimalists worried about courts intruding too much on the political processes might find Lawrence justified on grounds of desuetude; progressives (including proponents of gay and lesbian rights, feminists, and others) might find it justified on the ground of securing the status of equal citizenship for gays and lesbians; liberals might be persuaded by arguments rooted in individual autonomy as well; civic republicans and other perfectionists might find arguments from the moral goods fostered through protecting such intimate association more persuasive; common law constitutionalists might believe the right justified by analogy to the right of intimate association already recognized for straights and in recognition of what Lawrence called the “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex;” pragmatists and utilitarians might be persuaded by worries about the consequences of not recognizing the right, e.g., that gays and lesbians who are still in the closet might be blackmailed; and so on. Moreover, different arguments may be more or less appealing to different social movements and cause organizations seeking to vindicate such rights. Participants in such movements and organizations make whatever arguments they find most salient and persuasive, given their deeper and more general commitments, and work to transform popular opinion to support protecting the right.

The upshot is that if the pluralistic practice of constitutional theory as a whole helps build an overlapping consensus, it is in that sense “constitutional theory of the center,” even if not all individual theorists are aiming for the center.

Finally, a smaller point: Graber asks us to rethink our position on Bob Jones University. In particular, he seems worried that the case might be extended to permit denying tax-exempt status to all “illiberal” educational institutions or groups. For example, what about religious schools that encourage students to marry within their faith? We do not believe that such teachings equate to religiously-motivated prohibitions on interracial dating. As we indicate in the book (161-63), the Bob Jones University case has not been so extended. It has been limited to “firm national commitments” like eradicating racial segregation and discrimination in public education. As such, this case illustrates a sharp conflict between religious and political, or public, values. We argue that government properly addressed that clash by using the tool of denying a tax subsidy because racial discrimination conflicted with the public – and constitutional – value of equal citizenship.

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