Author: Deborah Hellman


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.


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.


Money Talks Symposium: Thanks so much

I just want to say thank you to Concurring Opinions for hosting this terrific symposium on my piece and to the commentators who posed such thoughtful and probing questions.  The piece will be much improved by this engagement.  Lastly, thanks to the readers who posted comments or simply read with interest.   I very much appreciate it all.


Money Talks Symposium: Adequacy of What?

Thanks to Lawrence Solum for pressing me to clarify what I meant in my prior post regarding an adequate alternative method of distribution.  First, I do not believe – as Solum asserts – that “restrictions on speech are permissible only if government provides ‘an adequate alternative method of distribution.’”  Rather, there is a real and important difference between a restriction on speech and a restriction on spending that affects speech.  Restrictions on spending should not be treated as restrictions on speech in all cases.  The question I pose is this: when should restrictions on spending be treated as restrictions on an underlying right; or when do constitutional rights include a penumbral right to spend money?   When the state has removed the good that one wishes to spend money on from market-based distribution, no violation of the underlying right occurs.  The state may do thatwhen it provides an adequate alternative method of distribution.

To the deeper point about resources, equality and rights: I am not sure we all are committed to equality of communicative opportunity.   We are committed to freedom of expression (to use Solum’s terms).  And so, the relevant question is how we should understand the relationship of this right to the freedom to spend money as one wants – which we don’t recognize as particularly strong.  Just because the exercise of many rights, speech among them, is facilitated by money doesn’t entail that our constitutional free speech right (which includes freedom of expression) should cover the right to spend money on speech in all instances.  Sometimes it may not.  Moreover, the decision to remove a good from market-based distribution may be motivated by a commitment to equality of communicative opportunity or it could rest on something else like equality of political participation, avoiding the commodification of the political process.


Money Talks Symposium: One more thought

I forgot to add one point to my last post – probably because I hate to take issue with Professor Chemerinsky in his valiant defense of my view.  Nonetheless, I would like to point out a divergence between my view and the one he articulates in his post.  He says that recognizing that spending money merely facilitates speech, “it should be appropriate to restrict spending to ensure that more speech really happens.”  This is a much stronger claim than the view I propose and one I am not sure I agree with.  Congress could decide that the means to participate in elections should be distributed on a non-market basis because this is a good that calls for a different distributive principle than ability to pay.  Whether this decision would yield more or less speech, I cannot predict.  Nor do I think that is the gravamen for whether this decision is constitutional.  Rather, I think that the congressional decision affects property, with implications for the exercise of speech, and is permissible so long as Congress provides an alternative distributive mechanism and employs distributive criteria that no not violate other constitutional rights.


Money Talks Symposium: Marketplace of Ideas, Metaphor or Reality?

First let me say how very honored I am that Concurring Opinions is hosting this symposium on my piece, Money Talks But It Isn’t Speech.  I especially appreciate the comments both those challenging my view and those defending it.

I see the questions posed by Lawrence Solum and Mike Seidman as driving at a similar point.  Solum, in particular, begins by agreeing that money provides the means to exercise many rights.  He emphasizes too that money is not the only means, there are other resources one brings to bear in the exercise of rights.  Where a law restricts the use of these means, he argues that it restricts rights or at least makes a prima facie case to be restricting rights.  The examples he offers would allow legislatures to do an end run around rights by simply restricting the means to exercise those rights.  Clearly this isn’t a tenable result.  In the paper, I emphasize both that democratic decision-makers must be free to decide whether goods are to be distributed via the market or instead via other methods and that we must insure that this permission doesn’t allow the legislatures to curtail rights as Solum’s examples suggest.  Here’s how we can do both:  democratic decision makers may decide to distribute a good via a non-market means but in order to do so must provide an alternative method of distribution.  Think of votes and organs here.  Votes are distributed on the basis of age and citizenship, organs on some account of medical need.  Solum’s hypotheticals do not present cases where legislatures have provided an alternative distributive mechanism at all.  Unless the state does so, it has violated the underlying right by curtailing the means to exercise the right.

This brings me to Zephyr Teachout’s thoughtful defense of my view.  She suggests that Congress (or a state legislature) removes a good from the market when it makes it “freely available to all.”  While Congress has provided an alternative distributive mechanism where it makes the good “freely available to all,” I find I cannot adopt this interpretation of my view as I think it is too demanding.  Organs are not freely available to all, nor are votes, babies, sex, etc.   Rather, I think Congress or the state legislature must provide an adequate alternative method of distribution.  The two words to stress here are “adequate” and “distribution.”  Solum’s examples fail this test because they are simply not methods of distribution at all.  I include “adequate” to address the challenge of a case like Mike Seidman’s example of a government that eliminates the market in books and distributes the limited supply on a non-market basis.  Most likely the loss of a market in books would dramatically affect the supply.  If it does so in a way that leads to dramatically fewer books, then the alternative distribution method may not be adequate.  I realize, of course, that determining adequacy will not be easy and can only say now that I am leaving this issue for another day.  This example points out the way that money incentivizes the exercise of rights as well as facilitates it.

Seidman’s  other example raises a slightly different point.  He worries about the criteria that the government might use in distributing abortions (if they were distributed via non-market means).  Here, I inclined in part to agree with Teachout.  Abortions themselves are not scarce, so there is no reason an adequate alternative distributive mechanism wouldn’t provide them to all who present themselves. But the deeper point is that for truly scarce goods – medical resources more generally, for example – a non-market method authorizes the government to decide the criteria of distribution.  Here I think I am going to bite the bullet.  Market based distributions distribute goods based on ability to pay.  Often these distributions are dramatically unjust.  An alternative distributive method of a scare resource will inevitably use a distributive method that will leave someone out.  So long as that scheme doesn’t infringe another constitutional right – Equal Protection most notably – then it is permissible.