Against Obligation: The Multiple Sources of Authority in a Liberal Democracy 9780674065178

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A G A I N S T O B L I G AT I O N

AGAINST O B L I G AT I O N The Multiple Sources of Authority in a Liberal Democracy

ABNER S. GREENE

H A R VA R D U N I V E R S I T Y P R E S S

Cambridge, Massachusetts, and London, England 2012

Copyright © 2012 by the President and Fellows of Harvard College A ll rights reserv ed Printed in the United States of America Library of Congress Cataloging-in-Publication Data Greene, Abner, 1960– Against obligation : the multiple sources of authority in a liberal democracy / Abner S. Greene. p. cm. Includes bibliographical references and index. ISBN 978- 0- 674- 06441- 6 (alk. paper) 1. Obedience (Law) 2. Effectiveness and validity of law. 3. Law—Moral and ethical aspects. 4. Constitutional law—United States. I. Title. K240.G74 2012 340'.112—dc23 2011041053

For John Copeland Nagle and Benjamin C. Zipursky

CONTENTS

Introduction

1

The Case against Fidelity to Law, for Citizens and for Officials 1 A Roadmap and Some Baselines for Discussion The Multiple Sources of Citizens’ Obligations

4 20

The Relationship between Obligation and Legitimacy

1.

Against Political Obligation

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Consent, Fair Play, and Political Participation Natural Duty and Associative Obligation Systemic Stability

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Accommodating Our Plural Obligations Exiting from the Law

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Permeable Sovereignty and the Religion Clauses The Problem of Illiberal Groups

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Against Interpretive Obligation to the Past The Authority of Constitutional Creators, and Readers Debunking Prior Authority

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The Proper Role of Fit in Constitutional Interpretation

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Why My Jeffersonian Position Is neither Anti-Law nor Anti- Constitutionalism 206

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Against Interpretive Obligation to the Supreme Court The Role of the Supreme Court in Settling Constitutional Issues 212 vii

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Interpretive Pluralism

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Guidelines for Officials in Deciding Whether to Follow the Court 223 The Court’s Response to Interpretive Challenge

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Conclusion

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Notes Bibliography Acknowledgments Index

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INTRODUCTION

The Case against Fidelity to Law, for Citizens and for Officials Do you have a moral duty to obey the law? You might think the answer depends on the content of the law, or the circumstances. Murder, rape, robbery—those acts are immoral as well as illegal. But do you have a moral duty to obey a law that prohibits you from helping a suffering, dying relative end her life in peace? And although we might believe there’s a moral duty to obey laws against using controlled substances, might we have a different view if the use is part of an age-old religious ritual, engaged in solely by consenting adults, harming no one outside the group? When we consider the variety of laws on the books, is it correct to say we have a moral duty to obey the law simply because it’s the law, regardless of its content, or the circumstances of its application? Here’s a related question: May the government legitimately demand that we obey all laws all of the time? What about our other sources of norms, or values? That is, what about those of us whose religion, or philosophy, or family/clan/tribal rules, dictate other ways of behaving? Is it okay for government to say to each of us, “Put those other norms aside, and follow only the state’s laws”? Now, let’s suppose you’re a government official, maybe the mayor of a small town. You’re trying to figure out whether it’s constitutional to insist that racial minorities be given a certain percentage of government contract business. Or, perhaps, you’re uncertain whether it’s constitutional to deny a same-sex couple a marriage license. Or . . . well, the possible questions are endless. Must you follow what the Constitution’s framers would have thought about the issues? Must you adhere to what the Constitution’s text meant to the people at the time it was ratified? Must you follow the Supreme Court’s precedents, developed over time? Or what the Court today thinks the Constitution means (or what you believe it would say if 1

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asked)? In other words, do you have an obligation, as a government official, to follow what someone else thinks the Constitution means? Is it wrong to do otherwise? The first set of questions refers to matters of political obligation—is there a moral duty to obey the law simply because it’s the law?—and political legitimacy—is the government justified in demanding that we obey the law? (Although some would separate these questions of obligation and legitimacy, I treat them together, in part relying on a thick conception of political legitimacy.) The second set refers to what I call matters of “interpretive obligation”—in the constitutional setting, whether we have a duty to follow prior or higher sources of constitutional meaning. Throughout the book, I  draw connections between political and interpretive obligation. The word often used to characterize an interpreter’s obligations—fidelity—aptly represents a citizen’s obligation to obey the law. Just as a citizen must be faithful to law, so must interpreters be faithful to sources of meaning. Many people believe both types of obligation exist. Their arguments are sometimes about warding off chaos, or anarchy, that they believe would result otherwise. Sometimes their arguments are about the proper role of a citizen or official in a liberal democracy, or about duties that citizens or officials have taken upon themselves by word or deed. I think all of these arguments are wrong, and in this book, I try to show why. One of my goals is to show that citizens and constitutional interpreters should take values of fidelity into account without being bound by them. Thus, I resist the view that the citizen or interpreter bears a burden of displacing a default position of fidelity to purportedly authoritative laws or sources of interpretive understanding. Accordingly, I argue that there is no successful general case for a presumptive (or “prima facie”) moral duty to obey the law, although such a duty may exist for some laws entirely and for some applications of other laws. Arguments for prima facie obligation to prior or higher authority in constitutional interpretation also fall short. My case isn’t, though, just “against” obligation. I also defend a conception that I call “permeable sovereignty.” Many of us adhere to norms other than those of the state’s laws. There’s no good reason, I argue, to treat such other norms—religious, philosophical, family/clan/tribal, etc.—as subservient to the law. We should see all of our sources of value, of how to live, as at least presumptively on par with each other, as equal, even though in some circumstances we’ll have to let our separate norms go and adhere to the law. In other words, we should see sovereignty as permeable through to 2

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our plural sources of obligation, rather than as absolute in the state and its laws. I make my case against political obligation and for permeable sovereignty together; one of the reasons we should reject a moral duty to obey the law and the state’s claim that it is justified in demanding we obey the law is that we shouldn’t understand the law as having pride of place over other sources of norms. (By linking these arguments, I distinguish my case from a more thoroughgoing libertarian idea.) Seeing all sources of norms as on equal footing requires the state, when it can, to accommodate ways of living different from those dictated by law. In the chapters on interpretive obligation, I also defend an alternative view, of multiple or plural interpretive authority, at the same time that I critique the more standard notion that interpreting the Constitution requires putting aside one’s views of constitutional meaning and deferring to other supposedly authoritative readers. Permeable sovereignty, for citizens, and multiple or plural interpretive authority, for those interpreting the Constitution, are related concepts. My arguments are based both in a distrust of standard views of political and interpretive obligation and in the virtues of seeing things differently. Sometimes putting oneself in the hands of another makes sense—we do so all the time with doctors, civil engineers, and the like. But matters of governance, of law, only sometimes require such deference. Other times, the issues are sharply contestable, and even as we seek to settle matters, we should be alert to how settlement risks alienating power from its true source—the people, as citizens. This is true whether we’re talking about the settlement function of law or of purportedly authoritative constitutional understandings. Moreover, by understanding norms as plural—both the state’s laws and other sources—and by understanding prior and higher sources of constitutional meaning as worth our attention but not our deference, we increase our chances of being active, rather than passive, citizens, and of holding purported authorities to a burden of justifying their laws and constitutional readings. This is an argument from political and interpretive theory, but it is also an argument internal to constitutional law in the United States of America. Our constitutional order is one of multiple repositories of power. Distrust of concentrated power, and the need to fracture power and provide multiple and overlapping checking mechanisms, is at the heart of U.S. constitutionalism. The case for this view is strong historically, structurally, and normatively, and is carried out through judicial review, separation of 3

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powers, and federalism, as well as via the political rights of speech, press, petition, and voting, plus other rights such as the free exercise of religion, freedom of association, and substantive due process. This core commitment to multiple repositories of power supports my claim in the interpretive obligation discussion for viewing constitutional interpretation as plural, extending to each citizen and official. Understanding multiple repositories of power as the primary mechanism for preserving citizen sovereignty supports the political obligation discussion, as well. For just as prior or higher interpretive authority presents itself as definitive but should yield to plural interpreters to combat concentrated power, so should the state’s law be understood as just one source of the norms that properly govern people’s lives. A Roadmap and Some Baselines for Discussion A Roadmap After this roadmap, the Introduction continues by setting up the argument. I begin by establishing some baselines. First, if law necessarily were coextensive with morality, then the political obligation question would be moot—we would have a moral duty to obey the law without further argument. Instead, I assume a baseline of legal positivism, in this sense—a system need not perfectly replicate morality for it to be a legal system. Second, coercion requires justification, including the state’s coercion by law. Third, we should seek a ground (or grounds) for political and interpretive obligation at a quite general level, i.e., that would permit legal authority to insist on compliance of all citizens in all cases without attention to the content of the norm or interpretation at hand. I explain why I am not taking a less general approach to these questions. Fourth, I am exploring whether there is a prima facie (i.e., overrideable, not absolute) duty for citizens to obey the law and for interpreters to follow prior or higher sources of constitutional meaning. Fifth, my approach shifts the burden from those challenging purported authority (of law or law’s interpretation) to those defending it. Sixth, my argument does not reject obligations across the board (as if that were possible), just general, prima facie political and (constitutional) interpretive obligation. Next, the Introduction shows how I use permeable sovereignty1 as a baseline, as a way of critiquing conceptions of obligation, and as grounding the case for exemptions. In so doing, I establish a connection to theories of pluralism. I also explain that although the argument against political obligation could possibly ground a broader libertarian case, this book is con4

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cerned only with competing norms and sources of obligation, and not with liberty per se. (A pause regarding terminology: In some of the case law and literature, “accommodation” is used to describe a legislative carve-out, “exemption” for a judicial one. Although I will sometimes use both terms, to distinguish between legislatures and courts, generally I will use “exemption” to refer to any government action creating an exception from law.) Finally, the Introduction endorses a principle of correlativity, arguing that the state’s political legitimacy and a citizen’s moral duty to obey the law go hand in hand. Before reaching this conclusion, I explain that if we view political legitimacy in certain narrow ways, then correlativity does not hold. But if we operate from a conception of political legitimacy that includes justifiable coercion, then we are led straight to the question of political obligation. The book’s answer to these linked questions—even in a liberal democracy not only do citizens not have a moral duty to obey the law but also the constitutional order is not politically legitimate in the sense of justified coercion, as a wholesale matter—may seem frightening (are we living in a state of nature? should we be taking up arms against this illegitimate force?). My argument, however, is one of neither philosophical nor political anarchism, for we do better living under the rule of a government in a liberal democracy than we would otherwise. But the state (or the government, as I use these terms interchangeably) must work hard to justify its use of coercion—sometimes it will meet this demand for a given law in all of its applications; sometimes it will have to meet the demand on an application by application basis. We can properly say government has acted legitimately—i.e., with sufficient justification—in these instances, and accordingly we have a moral duty to comply. One of the key points in my defense of correlativity is that systemic stability arguments matter to determining both whether a system is politically legitimate and whether subjects have a moral duty to obey the law. The argument against correlativity seems to turn on a different view of the matter—accepting a systemic stability argument to support the (legitimate) existence of the state and its coercive demands, but deeming such an argument insufficient for the subject’s political obligation. I also address a related argument for the “asymmetry” of authority or a “gap” between authority’s and subjects’ reasons, offered by Frederick Schauer and Larry Alexander. Finally, even if one disagrees with my argument for the correlativity of political obligation and legitimacy, one could still accept the bulk of my case against political obligation and for permeable sovereignty. 5

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Chapter 1 canvasses and rejects arguments for a moral duty to obey the law, i.e., for political obligation.2 I examine different approaches both separately and combined, for some of the most attractive candidates for a successful theory of political obligation are mixed ones. I do not begin with a view of what sort of grounds are needed for a successful theory of political obligation. For example, I do not insist that some version of consent be present to ground a moral duty to obey the law. Nonetheless, despite being open to mixed theories and not insisting on a particular type of argument to ground political obligation, I conclude there is no successful argument or set of arguments for a moral duty to obey the law, and therefore, correlatively, that government is not justified in demanding we do so. There are three sorts of argument for political obligation: agent-centered, status-based, and state-centered. Agent-centered arguments look to acts by a state’s subjects that may qualify as grounding a moral duty to obey the law. The first and most classic such position is that if one has consented to another’s authority, then the other’s exercise of authority is legitimate and concomitantly one has a moral duty to obey that authority. I discuss the assumptions underlying consent theory and the (notorious) problems with seeking to ground political obligation in consent. Express consent could ground political obligation but is unlikely to exist in a broad enough way; tacit consent—primarily understood as residence plus benefits—does exist broadly, but fails conceptually. Residence plus benefits doesn’t constitute consent to be bound by law, but perhaps it points to a different mode of agent-centered argument. Thus, the duty of fair play argument looks not to an act of agreeing or consenting to government’s authority, but rather to what we owe our fellow citizens through what we gain from coexisting in a cooperative scheme. It is a type of residence plus benefits argument, for it too focuses on living in a certain physical territory and receiving the benefits a group of persons produces. Fair play theory is problematic, however, either as a version of consent theory or as a separate theory primarily concerned with combating free-riding. Where it is powerful it is narrow and the obligations it generates not robust enough to undergird a general duty to obey the law. Perhaps, though, consent and fair play fail as theories of political obligation because they fail to focus on the political aspect of citizenship. Thus, I introduce participation in the political and legal process as a possible agentcentered predicate for legitimate governmental demands. Although such participation may well be necessary for political obligation, it is insufficient. 6

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I explore arguments made by Frank Michelman and Louis Michael Seidman, connecting voice to legitimation, and perhaps obligation. I also discuss Jack Balkin’s theory of constitutional faith and redemption. I then show that the law of judgments reveals one area in which participation is sufficient to ground justifiable legal obligation. If one is party to a case or at least has had the opportunity to present evidence and arguments, then the orders of the court hearing the case are deserving of obedience. I reject less deferential views regarding obedience to court orders, offered by Michael Stokes Paulsen and Robert Cover. I then turn to status-based arguments for political obligation. I call these arguments status-based because they focus on a particular role or position one has and not on either a specific act by the subject or systemic stability concerns. First I evaluate the claim that we have a natural duty to obey just institutions. The term status-based fits somewhat uneasily here, but it will suffice for sorting purposes; the status is “subject of a generally just regime”; the argument does not depend on any specific act by the subject; and although systemic stability is relevant here, it is not the focus. The natural duty argument fails in part because it, like fair play, is too weak to ground a general duty to obey the law. Moreover, John Rawls’ natural duty theory relies on an understanding similar to that of his theory of political liberalism, i.e., the way to overcome societal disagreement is for those holding reasonable comprehensive views to reach agreement via public reason and an overlapping consensus. The natural duty and political liberalism arguments wish away the problem of disagreement; they trade off of a comprehensive liberal understanding of what is just and reasonable, and thus neither gives appropriate equal concern to religious and philosophical world views that abjure Enlightenment rationalism. Next I discuss another status-based argument for political obligation, sometimes called “associative obligation”: we have a moral duty to obey the law because of what we owe our fellow citizens. The fair play argument is also about what we owe our fellow citizens, but that is agent-centered because it focuses on taking and using goods or services and owing something in return. Associative obligation arguments are based not on specific acts, but rather (primarily) on a constitutive claim about what it means to be a citizen (at least in a liberal democracy). This position starts from an intuitively appealing sense of what we owe family and friends and extends—figuratively and improperly, I claim—to what we owe fellow citizens we don’t know and will never meet. Those who feel loyalty to their 7

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fellow citizens may owe a duty to obey the law. And there may be good reasons for each of us to accept the laws of a just institution, perhaps as part of what we owe our fellow citizens. But unless there is an obligation to feel loyalty to fellow citizens as many of us think there is to family and friends, and unless there is an obligation for citizens to accept the laws of a just institution, these arguments must remain in the realm of the supererogatory rather than the obligatory. I discuss associative obligation theories generally and critique specifically views of Ronald Dworkin, Philip Soper, and Margaret Gilbert. I also examine some matters of legal theory, exploring what we mean by “acceptance” here, the relationship between citizen acceptance and the status of a system as a legal one, and whether citizen acceptance entails political obligation. Finally, I discuss and reject a set of state-centered, consequentialist arguments for political obligation. These arguments are about the stability of the system of governance. Having a stable, secure political society is a good, and this good can be attained, the argument goes, only through adherence to a strong norm of obedience to law. As I explained in summarizing my support for correlativity, these consequentialist concerns are properly seen as part of the case for both the state’s political legitimacy and a subject’s moral duty to obey the law. The systemic stability arguments are familiar, and forcefully advanced. For example, society could choose from several governance rules, but it is often more important that rules be settled than settled correctly (or perfectly). Similarly, because rules often intersect, centralized coordination is necessary. Often these claims for settlement and coordination are linked to an empirical (and perhaps normative) proposition: following rules that develop and concretize through tradition and practice aids in stabilizing society. Additionally, there is the argument that the risk of self-dealing, of a descent into a kind of state of nature with each person seeking what is optimal for himself or herself, is a threat to societal stability, and only by following norms of fealty to law can we ward off self-dealing and its costs. It would be foolish to claim these systemic stability concerns are unimportant. Rather, I argue that they obscure more than they help and that their role is properly played by becoming factors in self-conscious, present, nondeferential moral reasoning about whether to obey law and in determining whether certain laws or applications of law are justified. I first consider and reject the argument from self-dealing. The cost/ benefit calculus from disobedience varies too widely for an act utilitarian 8

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argument to provide a sufficiently general grounding for political obligation. Moreover, the oft-mentioned contagion concern—my disobedience will trigger yours (or will undermine my own ability to be law-abiding)— is speculative. The rule utilitarian argument, though general in form, also fails to account for the fact that costs and benefits from going one’s own way vary depending upon the type of rule and circumstance. Furthermore, the most general rule utilitarian claim here—across the board of all laws and circumstances it is a net plus for all of us to toe the line—is questionbegging; it states a solution to the political obligation conundrum under discussion. After offering a reminder that citizens should account for systemic costs in considering whether to disobey the law, and noting that error costs stem from too much obedience as well as from too much disobedience, I conclude by suggesting that mine is a version of rule-sensitive particularism, and offer some rejoinders to Schauer’s case to the contrary. Next I turn to the argument from settlement. Deference to supposedly settled law obscures the structure of authority that created it and our connection to it. The point is similar to Marx’s point about mystification and fetishism of power, and is an attempt at demystification, defetishizing, keeping transparent the link between the true principals—we, the People— and our agents—those who claim fealty. For if we fail to keep the proper linkage clear, we risk a concentration of power in the lawmakers, and such monopolization of power is antithetical to the genius of American constitutionalism, which is to insist on multiple repositories of power, which exist in part to ward off the alienation of authority from the sovereigns (us) to our agents. By keeping this true line of authority clear, by making obedience to law something the state must earn, rather than assume—by, that is, requiring our various agents to compete for our allegiance by making arguments rather than insisting on deference—we remain true to the cardinal U.S. constitutional principle of citizen sovereignty. I also explore how voice wards off the dulling edge of settlement. The section closes with a rejection of Burkean arguments for the settlement value of law (about which I say more in the later discussion of precedent in constitutional interpretation). I conclude Chapter 1 by examining Joseph Raz’s ser vice conception of authority, which holds that we should defer to another, and forgo our judgments about what action to take, when we will do better by deferring. Even if one accepts Raz’s service conception in theory, the conditions for it are unlikely to hold broadly enough in practice to work as a general theory of 9

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political obligation, as even Raz admits. Furthermore, even within the theory itself, one cannot fully exclude normative judgment; Raz admits one must be alert to whether the authority has proper jurisdiction, and jurisdictional questions necessarily bleed into substantive ones. The same critique holds for Frederick Schauer’s theory of presumptive positivism. Thus, I end Chapter 1 with this argument: Not only does deference to what is settled obscure the true lines of authority and risk alienation of citizen sovereignty, but it also masks the current work we do when we confront a law (or the law confronts us). Even those who offer consequentialist arguments for norms of citizen obedience recognize (for the most part) that such arguments are overrideable. Although it may seem that override is rare and occurs only in hard cases under difficult circumstances, opening the door to override means we will always be peeking, consciously or not, at possible exigencies. Such peeking significantly diminishes the purported settlement value of political obligation. We are left with what one might consider a depressing moral and political situation: we don’t have a moral duty to obey the law, and government lacks sufficient justification to demand our general legal compliance. Rather than give up, though, and view our officeholders as powerful people who got ahold of uniforms and badges, I argue in Chapter 2 that we can establish (and have, to some degree, established) a system in which sovereignty is viewed as permeable rather than plenary; we can do this through representations of exit as a (partial) remedy for the legitimation crisis that otherwise exists. Exemptions—allowing people to live by sources of normative authority other than that of the state—can help ameliorate the otherwise harsh and unjustified governmental insistence that we always obey the law. If one disagrees with my argument for the correlativity of political obligation and legitimacy, but accepts that the case for political obligation fails, then permeable sovereignty, while not remedying a legitimation crisis, would still help lessen the burden on the conscience of those who are otherwise forced to choose between violating the state’s laws and transgressing other normative dictates. After summarizing the obligation/legitimation problem and the permeable sovereignty remedy, I develop the case for “Exiting from the Law.” Although emigration is the truest form of exit, its tremendous costs render it insufficient as a way of solving the problem. We must look to representations of exit. People may stay within the nation’s borders but through various mechanisms be relieved of the full scope of legal duties. I explain that 10

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my focus is on conscientious objection rather than civil disobedience, and then defend the case for exemptions against challenges from different quarters: from Brian Barry, who rejects them outright for first-order reasons; from Justice Stevens, who rejects them because of administrability concerns; and from Christopher Eisgruber and Lawrence Sager, who defend them but in a way that doesn’t properly account for the underlying liberty interests at stake. I also consider how we might balance a citizen’s claim for an exemption from law against the state’s interest in uniform application. Although my argument for permeable sovereignty includes both religious and secular sources of norms that compete with those of the state, “Permeable Sovereignty and the Religion Clauses” focuses on issues (primarily of U.S. constitutional law) involving citizens who wish to live by their religious norms rather than under law. I show that the Court has generally permitted legislative accommodation of religious practice, once we understand accommodation as alleviating burdens otherwise imposed by law, and not as enhancing the dominant religion’s ability to advance its practice through law. I also discuss the Kiryas Joel case, which allows us to think more about how and when to accommodate groups that want to live not only by their own norms, but also in their own place. Next, I maintain that the Establishment Clause should be construed to invalidate legislation based in express, predominantly religious justification; this (partial) gag rule renders illegitimate the state’s hold on religious citizens; and therefore courts should be required to award Free Exercise Clause exemptions for religious practice as a counterbalance. One could accept or reject this “political balance of the religion clauses” argument independently of accepting or rejecting my broader, non-religion-specific case for permeable sovereignty. Finally, “The Problem of Illiberal Groups” discusses concerns raised by granting accommodations or exemptions to groups that have internal practices many of us would consider in violation of proper equality norms. Having canvassed and rejected arguments for political obligation (and correlated political legitimacy), and explored the possibility of accommodations and exemptions as a device for recognizing permeable sovereignty, I turn to interpretive obligation. I confront arguments that in the U.S. constitutional order we have a duty to follow the constitutional interpretations of prior (precedent and original meaning or understanding) and higher (the views of the U.S. Supreme Court) authorities. Although the arguments for following precedent are about following Supreme Court precedent, 11

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I  separate the argument for interpretive obligation to constitutional doctrine as it develops over time (the section on precedent) from the argument for interpretive obligation to a “supreme” court at any moment in time. Chapter 3 discusses and rejects arguments for interpretive obligation to past sources of constitutional meaning. The (often interrelated) arguments to which I respond are: democratic legitimacy (the principal argument supporting adherence to original meaning or understanding); Jed Rubenfeld’s argument for becoming free through commitments over time; David Strauss’ and Gerald Postema’s arguments for finding common ground through diachronic coherence of legal principle; three types of argument for following constitutional precedent (stability, integrity/equality, and Burkeanepistemic); and anchor theory (the need for a check against supposedly untethered judgments of constitutional meaning). Although my discussion here is primarily a critique of diachronic theories of interpretive obligation, I add a section supporting the alternative view—the primacy of justification over fit. Fitting current interpretations with ones from the past often makes sense, though, even if it should not be thought obligatory; thus, I discuss how there is room for fit. Finally, I explain why my Jeffersonian, anti- diachronic commitment position isn’t anti-law or anti- constitutionalism. Chapter 4 discusses and rejects arguments for interpretive obligation to the Supreme Court (at any moment in time) as constitutional interpreter. Although I accept interpretive (and political) obligation to court judgments in individual cases, this conception of adjudicative bindingness is narrow, and does not require government officials (or citizens) to defer to how they believe the Court would rule (a determination often based on how the Court has ruled) on any given constitutional question. First I consider and reject agent-centered and status-based arguments, i.e., legitimacy arguments grounded in what We the People or officials have purportedly agreed to and arguments about official role and the role of the Court in our structure of government. We should consider interpretive authority no less multiple than other authority in our constitutionalism; sometimes called “departmentalism,” this approach enhances dialogue among constitutional actors, opening the Court to appropriate challenge. Second I canvass consequentialist arguments based in the settlement and coordination functions, and in the need to check self-dealing. As with similar arguments in the political obligation section, I respond that deference dulls official responsibility, risking concentration of power and alien12

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ation of citizen sovereignty. Moreover, there are error costs from deference as well as from interpretive disobedience, and the risk of contagion—of one official’s going her own way, leading to interpretive anarchy—is speculative. Larry Alexander and Frederick Schauer have offered an important version of the settlement argument: just as we cordon off the broader domain of political justice by accepting a narrower version of constitutional justice, so should we cordon off constitutional interpretation by officials through accepting Supreme Court decision-making. There are two problems with this argument: when we settle matters we do so within the narrower domains without restricting the broader domains; and even as we accept a restriction from broader to narrower domain at any slice in time, we are open to arguments that the narrower domain should be broadened as we move forward. Although the case for deference to the Court fails, officials should consider various factors in deciding whether to follow the Court. The one I treat in most detail is this: Even if we cannot replicate the paradigm of the law of judgments, binding parties when they had an opportunity to participate in the litigation, we can view constitutional interpretation as the product of each generation, and ratchet up deference to Court decisions within each generation even as we ratchet it down for decisions from generations past. This cuts against a more standard view—that we owe more deference to interpretations that have stood the test of time. A generational participation theory is necessarily messy—it lacks the simple justification of either reliance on current reasoning alone or a traditional theory of deference—but it captures an important middle point between the two, reflecting the compromise our constitutional order has made between real self-rule and its approximation through a republican form of government. Next, I discuss whether attitudes toward deference to the Court should vary depending on the office one holds. Here I explore constitutional interpretation from the viewpoint of the President, Congress, lower federal courts, and state and local officials. I conclude Chapter 4 by evaluating how the Court should respond to interpretive challenge from other government officials. The final chapter offers some concluding thoughts. My basic argument in the book is this: There is no moral duty to obey the law, and accordingly only through viewing sovereignty as permeable, as partial rather than full, can we provide even a semblance of a remedy for the obligation/legitimation problem that otherwise exists. Only, that is, by disclaiming plenary sovereignty 13

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can government remain in position as an authority worth obeying. Interpretive obligation in constitutional law raises a related set of concerns, and insisting on interpretive pluralism (regarding both prior and higher authority) yields benefits similar to insisting on permeable sovereignty. Some Baselines for Discussion Legal positivism. The question of political obligation is whether subjects of a legal regime have a moral duty to obey the law. An affirmative answer entails content-independence, i.e., that there is something about legal regimes generally or a specific type (or instance) of legal regime that renders all laws worthy of being obeyed all of the time (at least as a prima facie matter), regardless of attention to their content.3 (This is the standard way of putting the question, which I follow. I say more about other ways of putting the question in the section below on “Generality.”) If law necessarily were coextensive with morality, we would have no political obligation problem, for one ought to do what one ought to do. This (perhaps too simply stated) strong natural law position is incorrect, however; a legal system may exist without being coextensive with morality. There is a rich and complex literature on this issue. Instead of engaging it, however, I shall assume the truth of a thin and broadly acceptable tenet of legal positivism (sometimes called the separability thesis)—morality need not be a condition of legality. So to get an affirmative answer to the political obligation question, we may not just invoke the existence of a legal system. An initial burden on the state. Coercion requires justification. The state must justify its use of law to forbid or require individual conduct. One argument against this predicate says we are born into a situation in which authority confronts us, and because of this ineradicable fact, no justification for the state’s coercive claims is needed. The idea is that ought presupposes can, and if we cannot help being born into a state, then there’s no use discussing justification for state action. But this doesn’t follow. Perhaps in today’s world we are necessarily born into some physical territory under control of a state. But whether and to what extent the state must or may act coercively is a different matter. The nature of the question. I ask the question of political obligation in the following way: Is there a general, prima facie moral duty to obey the law simply because it is the law, such that the subject of the law in any given 14

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case (say, a citizen) would have the burden of providing sufficient reasons to override this duty? Generality. Our examination of what might make a legal regime worth obeying will take us through different arguments—consent, fair play, participation, natural duty to obey just institutions, associative obligation, and systemic consequentialist arguments about stability, settlement, and coordination. The question, and the answer we’re seeking, is a general one (although focused on liberal democracies). It’s about whether one has a moral duty to obey all laws at all times (as a prima facie matter, subject to case-by- case override). On the correlativity view I advance below, an affirmative answer also allows government to claim legitimate, justified authority over each application of each law, shifting the burden to the individual to show why this law should not be enforced on this occasion. The parallel questions of interpretive obligation are whether there’s a general, prima facie duty to follow either prior (precedent; original meaning or understanding) or higher (the Supreme Court) sources of constitutional understanding. An affirmative answer would require anyone offering an interpretation contrary to the prior or higher sources to show why such sources should be displaced. Some have suggested we should ask and answer the political obligation question at a less general level. Sometimes the argument is that grounds for obligation will not always be present, but when present, they apply to all citizens. For example, Matthew Kramer uses “invariable” in the way I am using “general.” He agrees with my conclusion that prima facie political obligation does not obtain invariably, even in benevolent regimes. But he argues as well that in a benevolent regime, citizens generally—i.e., typically, in most circumstances, though not always, i.e., invariably—owe a prima facie moral duty to obey the law. In such settings, says Kramer, a citizen has the burden of overcoming this presumption.4 Sometimes the argument is that citizens may be differentially bound, that some grounds for bindingness (e.g., consent) will vary among persons. For example, A. John Simmons rejects “universality” as an aspect of the political obligation question. “This ‘all- or-nothing’ attitude is confused,” he maintains, because there is “no obvious objection to a theory which allows that some people have political obligations while others, and even others in the same state, do not.”5 Combining the two types of claim, one might argue that grounds such as systemic stability obligate all citizens to obey some 15

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laws, while other grounds, such as duty of fair play, obligate some citizens to obey some laws. (And perhaps consent might obligate some citizens to obey all laws.) My response is threefold: (1) These theories of what we might call partial obligation might end up in a similar place to mine. (2) But there is still a good reason to pitch the question at the most general level. (3) Even if we combine possible grounds, we still fall short of political obligation generally. (1) On either my approach, insisting on the broadest type of generality, or competing approaches that permit partial obligation of one sort or another, for certain types of law or situation, the state will have a good reason or set of reasons for insisting we all obey the law, and citizens will be morally obligated to do so. In other situations, the opposite will be true. Depending on how one approaches the types of argument for and against obligation, one could reach conclusions similar to mine about the weakness of the case for obligation and the strength of the case for permeable sovereignty. (2) The state confronts the citizen not with a type of law but with a demand for obedience. That is, the state doesn’t say, “in this instance, we have a coordination problem that must be solved, and therefore we can permit no opt-outs,” or, “in this instance, you’ve accepted a benefit and therefore owe something in return, here, law abidance.” Rather, it makes a contentindependent demand, for us to obey the law simply because it is the law.6 If we move the demand from this level of generality (or invariability) to any more content-specific level, then the state has ceded an important aspect of its authority (or perhaps ceded authority entirely, depending on whether we view a claim of authority as necessarily a claim for obedience without regard to content). If the citizen’s countervailing norm and the state’s claim are pitted against each other up front, then the state has relinquished its claim for distinctiveness and primacy as a norms creator. Instead, we should first examine whether there’s a ground (or set of grounds) that permits the state to enter all interactions with its citizens with a presumption of legitimacy and correlatively that obligates each citizen in each case. If the answer is yes, then it is appropriate to see the norms of the law as primary and the request for exemption to follow a separate set of norms as needing special pleading. But if the answer is no, then we can appropriately see the state as stripped of authority in its “because I said so” sense; see its laws as part of a competition for the citizens’ allegiance with other 16

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sources of norms; see the state as bearing the burden of showing why an exemption should not be granted when a citizen presents a claim from such a separate source of normative authority; and see that norms competition of this sort is always present, not just for some sorts of law or some types of citizen. (3) In his most recent theory of “multiple principles,” George Klosko argues that we should look at the “particulars of given laws” (and thus depart from content-independence), but that summing the various principles for political obligation yields a presumptive duty to obey “in each case.”7 My arguments in Chapter 1 reject this claim. In short: consent gets us virtually nowhere; the same is true for bindingness through political participation; fair play might work for some duties in small settings, but once we expand it nationally and include presumptively beneficial goods, we’re asked to assume too much about what everyone would want, and there might be ways short of general legal compliance to fulfill one’s duties; natural duty and associative obligation are on their face general claims (and, as I argue below, fail as such), and to the extent they’re not, they rely on a systemic, consequentialist argument; and finally, the consequentialist case can’t get us far enough, because there are too many situations in which complying with law isn’t needed for systemic stability and/or in which failing to comply isn’t harmful (or is so in a de minimis way only), because the rule utilitarian version has serious question-begging problems, and because settlement, though sometimes valuable, obscures responsibility and is often a paper tiger. Klosko’s admittedly content-dependent approach to political obligation also suffers from the problem identified in (2), above, namely, that it cedes an aspect of state authority, opening the door to the kind of norms competition I describe. Prima facie only. The question, for both political and interpretive obligation, is about prima facie8 rather than absolute duties. No one suggests obligations of the sort we are discussing are unyielding, impervious to countervailing considerations. The question of political obligation, instead, is whether there is a moral reason (or reasons) to be law-abiding always, across all laws to which one is subject and in all circumstances.9 In parallel fashion, the question of interpretive obligation (of the sort that concerns me here) is whether there is a reason (or reasons) to follow prior or higher sources of constitutional meaning, when interpreting our Constitution, in all circumstances. Such reasons will have weight of varying strength, and reasons 17

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for displacing prima facie political or interpretive obligation will also have weight of varying strength. The principal inquiry is into the existence of reasons (of the right kind) supporting prima facie political and interpretive obligation. To reiterate, and to avoid confusion, when I say things such as “duty to always obey all laws” or “duty of general legal compliance,” I mean a prima facie duty, not the final calculation after we consider the possibility of override. Burdens. So when we ask whether political obligation exists, we’re asking whether there is a general, prima facie moral duty to obey the law. And when we ask whether interpretive obligation exists (in the setting of U.S. constitutional law), we’re asking whether there is a general, prima facie duty to follow prior or higher sources of constitutional meaning. Now, one might say, “Since such obligations are subject to override, since they are prima facie only, why all the fuss? Why not just discuss what sorts of consideration should be weighty enough to displace the prima facie obligations? Furthermore, even the theory of permeable sovereignty requires balancing the separate normative claims of individuals against the state’s interest. Why not treat it all as just one big balancing test?” The answer is that the burden matters, as does the ascription of legitimacy. If the case for political obligation succeeds, then the subject would bear the burden of persuasion for an override. The same is true for interpretive obligation, for the interpreter challenging the canonical source of constitutional meaning. But if the case for political obligation fails, then the coercive entity—the state—would bear the burden of justifying each law or each application of law. In the interpretive setting, the prior or higher source of constitutional meaning would be part of the discussion, but the party seeking to displace it would bear no special burden of persuasion. Furthermore, whether the case for obligation succeeds or fails matters for expressive or ascriptive purposes, for how we understand the state and the purportedly canonical sources of constitutional meaning, for whether we see them as embodying political and interpretive legitimacy or as competing with other norms and other sources of interpretive meaning at every turn. If my argument in Chapter 1 against political obligation (and political legitimacy) is successful, then the state still has an opportunity to justify specific laws or specific applications of law, and in Chapter 2, “Exiting from the Law,” I talk more about how the state may seek to satisfy its burden of 18

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justification in these instances. For now, note two things: First, many of the arguments for political obligation fail to satisfy the generality criterion; that is, they don’t adequately show why all of us should always obey all laws. But the state may be able to justify specific laws and insist that all subjects obey them; for such laws, the state may be able to show that general obedience is critical. (And even if the state fails in this effort, it may be able to show that individual applications of law are justified.) Second, even though my argument shifts the burden to the state to justify specific laws or their enforcement, we should require subjects to signal when their objection to obeying specific laws is grounded in competing sources of normative authority for which the government must account. My argument does not value disobedience for its own sake or for mere preference or self-interest (or, as discussed below, from a claim of negative liberty); it’s about permeable sovereignty, which focuses on the plural sources of normative authority to which people turn in deciding on right action. The focus of my arguments against political obligation and for viewing sovereignty as permeable through to nonstate sources of value and obligations suggests that there is a set of cases in which (1) the burden is on the government to justify the law or its application (as it always will be after the rejection of the general case for political obligation), but (2) the subject has no reason for action based in a source of normative authority separate from that of the law. In such cases, any balancing test of state interest versus subject’s right will favor the state, assuming some minimum justification for the law or its application. Obligations exist! Finally, although perhaps I needn’t say it, out of excess of caution I will: We have obligations toward family, friends, and colleagues; we have obligations toward fellow citizens and strangers; we even have obligations toward our future selves (I would argue, although I won’t parse the argument here). Many of these are moral obligations; they tell us what we ought and ought not to do as a normative matter (in the notmerely-descriptive sense). We even have moral obligations to obey the law, not generally (or so I am arguing), but to obey some laws or some iterations of some laws. These obligations are “genuine” or “what one is really supposed to do” in the sense of being moral in the sense of being what we ought and ought not to do, not just because of a desire to stay out of jail or avoid a fine, but because it is the right way to behave. What I resist, though, is any notion that legal obligations are “genuine” or “what one is 19

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really supposed to do” simply by virtue of their being legal obligations.10 That claim requires some sort of justificatory argument, and throughout the first half of this book I offer reasons to think such an argument is unavailing. The Multiple Sources of Citizens’ Obligations By permeable sovereignty, I mean the sources of normative authority to which people turn are plural, and therefore we should see the state’s sovereignty as permeable—full of holes, rather than full. The state claims otherwise (or at least so I shall argue, in accordance with the mainstream view). It claims the legitimate power to demand general legal compliance. It might recognize exceptions for various reasons, but it is within the state’s discretion to so recognize. That is the notion of plenary sovereignty I challenge. Permeable sovereignty serves three functions in the argument: as a baseline; as a point for critiquing conceptions of obligation; and as a return point for thinking about remedying an obligation/legitimacy problem. (1) As a baseline, permeable sovereignty describes the complex set of sources of normative authority to which many people turn, sources that come from religion, philosophy, family, ethnic and cultural groups, and more. I do not limit the argument for exemptions to those who have carefully considered options and made a choice to opt in to a religion etc. I include as well those who follow a set of norms other than the state’s out of a sense of obligation. Sometimes these norms come from a wellestablished community (not necessarily geographical), but sometimes not. Furthermore, my case covers groups that have existed within the nation in question for some time (or preexisted it) and those that have immigrated more recently. I thus reject Will Kymlicka’s attempt at granting greater rights to the former; his argument turns too much on history and settlement and not enough on normative differences between the two types of group.11 My argument, though, is against obligations to the state; I take no position on obligations to nonstate sources (although I do discuss the problem of providing exemptions for illiberal groups at the end of Chapter 2). One might argue that my case against political obligation opens the door not just to permeable sovereignty, to competing sources of norms, but also to a more libertarian ethic. If the state may not insist on even prima facie general legal compliance, one might contend, then even claims of 20

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liberty unmoored from a competing normative structure have found their ground. This could be so whether the argument is against laws on their face or merely as applied to those making the claim of liberty. But my case does not reach so far. The argument against political obligation is made in the context of norms competition, of developed nonstate sources of how we should and should not (or perhaps must and must not) behave. Placing people in this kind of dilemma is a different—and, I would argue, more severe—imposition than simply infringing on their liberty by requiring them to obey the law. This distinction becomes clearer if I say more about the affirmative, rather than merely critical, side of permeable sovereignty. Most of my discussion in the first half of the book is about the insufficiency of the state’s case for citizen obligation, and about the use of exemptions as a (partial) remedy to the dilemma into which the law places some people. My support for the view that the state must compete with other sources of normative authority is consistent with much of the literature on pluralism and multiculturalism. So, for example, Harold Laski supported a “pluralistic conception of society,” arguing that “the state is only one among many forms of human association. It is not necessarily any more in harmony with the end of society than a church or a trade-union, or a freemasons’ lodge. They have . . . relations which the state controls; but that does not make them inferior to the state.”12 More recently, William Connolly has developed a theory of “deep pluralism,”13 and Charles Taylor has explored the distinction between a politics of universalism and a politics of difference in which we “recognize and foster particularity.”14 Finally, just to mention one more example, Will Kymlicka argues that “[l]iberals should be concerned with the fate of cultural structures, not because they have some moral status of their own, but because it’s only through having a rich and secure cultural structure that people can become aware, in a vivid way, of the options available to them, and intelligently examine their value.”15 Focusing on “multination states”—“where ‘nation’ means a historical community, more or less institutionally complete, occupying a given territory or homeland, sharing a distinct language and culture”—Kymlicka adds, “there is more than one political community, and . . . the authority of the larger state cannot be assumed to take precedence over the authority of the constituent national communities. If democracy is the rule of ‘the people,’ national minorities claim that there is more than one people, each with the right to rule themselves.”16 21

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I don’t agree with all of the claims these scholars make on the subject, nor is it necessary for me to take a position on some of the matters they discuss (for example, whether the state should act affirmatively to preserve minority cultures, beyond sometimes releasing their members from the vise of the law). Two caveats, though, are important. First, I do not contend one should adopt pluralism as a personal matter, as a stance about value or norms. Second, and related, I do not argue that values pluralism is true, i.e., I do not, as John Gray puts the strong pluralist claim, “den[y] that universal values are fully realisable only in one way of life.”17 I need take no position on the subject, because my argument is for political pluralism, and nothing further. As Susan Mendus puts it, “liberal neutrality is not based on our own uncertainty about which conception of the good is best, but on the rejection of certainty as an appropriate deciding factor in the deployment of political power.”18 William Galston advances a theory of “liberal pluralism” that is close to mine in many respects. “Nonstate authority,” he argues, “does not exist simply as a concession or gift of the state. A well-ordered state recognizes, but does not create, other sources of authority.”19 Some of our differences are: (a) I develop the “negative” argument for political pluralism—based on the need to combat concentrated power—in greater detail than does Galston. (b) He announces a fairly thick view of what an exit right from an illiberal group would encompass (knowledge, capacity, psychological, and fitness conditions).20 I explore the question of exit from illiberal groups at the end of Chapter 2, and have not yet decided how thick such an exit right should be. (c) My argument develops differently from his; he doesn’t base his on combating the case for political obligation. (d) He adopts (briefly) the anti-correlativity view regarding political obligation and political legitimacy.21 (e) Finally, at times he seems to agree with my position that the state bears the burden of justifying its imposition of law on persons and groups that desire to live by different norms,22 but in a section on the authority of law he endorses the more traditional view that those asking for exemptions bear a burden of proof.23 It’s not clear to me how he reconciles these two threads of his argument. Michael Walzer’s position at times seems similar to mine. He discusses the consent-based obligations that begin with membership in various settings, suggesting they should sometimes take precedence over weaker political obligations.24 Some of us may be “partial members,” not easily described

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as citizen, rebel, emigrant, or alien.25 Engagements with groups within the larger polis represent “a kind of internal emigration.”26 Most tellingly, “[s]ometimes it is obedience to the state, when one has a duty to disobey, that must be justified.”27 Walzer’s acknowledgment of a kind of pluralism, though, is set against his acceptance of political obligation,28 and thus although he helpfully states a concept similar to my notion of permeable sovereignty, his baseline of political obligation suggests a tougher row to hoe for the would-be “partial member.” (2) Furthermore, recognizing sovereignty as permeable rather than plenary fits with the agnosticism of value that helps explain much of our constitutional order. Our Constitution, in both its power-granting structure and its set of rights, is anti-foundationalist; it insists the repositories of the people’s power be multiple, regarding both structure (powers) and rights.29 Doubt as to what’s right is written all over our constitutional text and history—from the way in which power is divided at the national level and between nation and states; to the power of judicial review; to the prohibition on establishment of religion; to a strongly enforced set of political rights; to recognition of the free exercise of religion and freedom of both expressive and intimate association. Viewing the people’s sources of normative authority as permeable, as including both the state’s laws and sources other than the state, fits snugly with this anti-foundationalist, multiple repositories of power picture. Much of my argument against political and interpretive obligation is based in keeping front and center agnosticism of value and its manifestation in the political setting, permeable sovereignty. For example, some arguments for political obligation seek to overcome disagreement as to the good and the just by seeking common ground and settlement. At the heart of my case to the contrary is the concern that these arguments do not properly account for sources of normative authority as plural. They seek a kind of solace from overcoming difference, but I contend it is a false solace and that we do better by recognizing difference as something we can’t get past. (3) Finally, if we accept that the case for political and interpretive obligation has not been made, and insist instead that the state confront and recognize a variety of norms and constitutional interpretations, then we can see the exit options I discuss as a reinscription of permeable sovereignty, as a return to the baseline, as an unpacking of the state into its component parts. Seeing exemptions as a (partial) remedy for the situation

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into which the state places us with its unjustified demand for general legal compliance is a way of insisting the state (and all of us) recall that sovereignty is permeable. (The remedy is partial because we are not normally giving people their own plots of land on which to follow their separate sources of norms. We are for the most part representing exit, rather than providing it fully.) Viewing constitutional interpretation not as obligated to prior or higher sources of interpretive authority but rather as also multiple and permeable through to each official and each citizen accomplishes a similar unpacking of the state and recalling that authority ultimately rests elsewhere. The Relationship between Obligation and Legitimacy The standard view is that political obligation and political legitimacy are correlative, or coextensive, i.e., where one obtains, the other does as well.30 The concept of political legitimacy is hazy, though, and thus whether political obligation correlates with it depends on what it means.31 I offer two approaches. (Both consider political legitimacy as a normative, not descriptive, concept. My concern is not whether subjects or citizens believe a regime to be legitimate, but whether it is legitimate.) Under the first, thinner conception, for which there are several candidates, political legitimacy and political obligation are not correlative. Under the second, thicker conception—what we might call the “justification” conception—correlativity holds. This thicker normative conception of political legitimacy requires that the state be justified in demanding general legal compliance. I argue that the considerations relevant to whether subjects owe a moral duty to obey the law are relevant to considering whether the state has a justified claim on its subjects’ obedience. Accordingly, I reject the contention that although political obligation may not hold, the state may still be justified in mandating general compliance with law. On the thin view, political legitimacy obtains whenever the basic conditions for the existence of a legal system are present. If a society’s rules for governance are persistent and continuous across individual rulers, if we thus have institutionality, and if the government officials who adopt, execute, and adjudicate these rules accept them, then a legal system exists.32 (In addition, basic rule of law values must be maintained.) Calling these the basal conditions for political legitimacy would not do injustice to the way “legitimacy” is sometimes used. 24

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If, however, the basal conditions for a legal system are equivalent to the basal conditions for political legitimacy, then they are too thin for and not commensurate with the basal conditions for political obligation. Arguments for political obligation are either agent- centered, status-based, or statecentered. The conditions for these arguments to hold for a given society are thicker than the basal conditions for a legal system to exist; the arguments require more than institutionality, official acceptance, and basic rule of law values. The conditions for political obligation are not only thicker than those required for a legal system to exist; they are also (for the most part) of a different kind. Whether a system is a legal one requires attention to institutionality and official acceptance; neither is of central concern to the arguments for political obligation. The requirement that a legal system meet basic rule of law concerns is, in its attention to systemic details, similar to political obligation arguments from a natural duty to obey just institutions and from stability, coordination, and settlement. Yet, the natural duty argument requires a thicker conception of justice than a mere nuts and bolts legal system provides. And any serious consequentialist argument for political obligation from concerns of stability and the like will also require more than a mere functioning legal system. Perhaps, though, political legitimacy requires more than the basal conditions for the existence of a legal system; maybe if we thicken the conception sufficiently we can achieve correlativity. There are two obvious candidates for thicker conditions (without yet reaching the thickest justification conception). One requires rights of political participation, at least the franchise, and perhaps other ways of influencing both government and fellow citizens, such as speech and press. Even if adding such rights to the basal conditions for a legal system renders the system legitimate, however, political legitimacy would still not correlate with political obligation. As I discuss in Chapter 1, although they may be necessary to political obligation, rights of political participation are insufficient to undergird a moral duty to obey the law. The other argument short of the thickest justification conception is that a system is politically legitimate only when it reaches a threshold of political justice.33 Political obligation would follow, then, on a Rawlsian argument that we owe a natural moral duty to support just institutions. (To be precise, on Rawls’ use of the terms, we lack an obligation to obey the law, but we have a duty to do so.34 I will treat the natural duty theory, however, as an argument for political obligation.) Indeed, although Rawls 25

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doesn’t explicitly discuss correlativity, the conditions for satisfying the “liberal principle of legitimacy” and for triggering the “natural duty . . . to support and to further just institutions” are sufficiently similar, as Rawls sets them out, that it is sensible to conclude that he would have endorsed correlativity.35 I have two separate concerns with Rawls’ position. First: Rawls’ natural duty argument does not properly predicate political obligation, as I discuss in Chapter 1, and thus satisfying the conditions for a thin theory of political legitimacy won’t suffice to ground a duty to obey the law. Rawls’ theory requires obedience when there are other, narrower ways of supporting just institutions; and it falls prey to a set of consequentialist objections relevant because it is based, in part, on the need for a stable system of law. Additionally, natural duty theory may generate duties to multiple sovereigns—with which I take no issue, and which in some ways is compatible with my permeable sovereignty argument. But it suggests that natural duty theory may not be the best source for generating political obligation to the state of which one is a citizen. Second: Though set out at separate times (the former in A Theory of Justice and the latter in Political Liberalism), Rawls’ arguments for political obligation and legitimacy fit with his political liberalism argument for overcoming disagreement about comprehensive doctrines in a liberal democracy. As I argue in Chapters 1 and 3, this attempt to achieve common ground does not sufficiently grapple with the challenge posed by those whose doctrines won’t countenance yielding to an “overlapping consensus” of “reasonable” views achieved through the exercise of “public reason.” This is an independent objection to Rawls’ theory—even assuming arguendo he has set forth an otherwise defensible correlated thin theory of political legitimacy and obligation. Finally, a specific constitution—ours, perhaps—may be legitimate as a framework for governance, but not yield correlative political obligation. The legitimacy of a constitution in this sense may result from conditions of its acceptance or from its justness or participatory rights or some combination, and thus be a constitutional order worthy of support and one we should not actively undermine. But this is not the same thing as saying government under such a constitution is justified in demanding that its subjects always obey the law, or that we have an obligation to do so. Thus, I resist Louis Michael Seidman’s suggestion that “[i]f we could come up with a satisfactory theory of constitutional legitimacy, 26

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the more general problem of political obligation is likely to solve itself.”36 According to the thickest conception of political legitimacy—the justification conception—government is legitimate insofar as it is justified in claiming content-independent authority, i.e., justified in demanding general obedience to law without attention to the content of the law or the law’s application in the given instance. The anti-correlativity argument is that government may be so justified even if its subjects do not have a moral duty to obey the law.37 I contend that the justification conception of legitimacy is an appropriate one and when viewed this way, political legitimacy is correlated with political obligation—when one is present so is the other; when one is absent so is the other. Central to my argument is this point: systemic, consequentialist reasons apply both to the state, in claiming that its subjects ought to obey the law, and to the subjects, in determining whether they ought to obey the law (and, I argue later, suffice for neither purpose). The argument against correlativity is based on a systemic argument for political legitimacy: The state is legitimate—and therefore justified in demanding general obedience to law—if two conditions are met. First, the regime must be sufficiently just. Second, in addition to satisfying the basal conditions for a legal system required by the thinnest conception of legitimacy, the regime must represent a sufficient enough advance over the state of nature in terms of systemic virtues such as stability, settlement, and coordination. If both conditions are met, we are better off living under such a regime than in the state of nature, and that is a good enough reason to justify government’s general demand for compliance with law (subject to override). But political legitimacy does not correlate with political obligation, the argument goes; although government may be justified in making these demands (and thus legitimate, in a normative sense), that doesn’t imply subjects have a moral duty to obey the law, because the reasons that apply to legitimating (i.e., justifying) state claims of authority are different from the reasons that apply to determining whether political obligation holds (or perhaps if and when the reasons are the same, they do not apply in the same way). Thus, the state has reason to insist that a norm of lawabidingness aids in coordination, in solving problems individuals have a hard time solving on their own, in settling moral disagreements, and in preventing subjects from making errors in believing they can do better by 27

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disobeying. But, the argument goes, these concerns may not be dispositive and perhaps not even relevant to the subject’s determining whether there is good reason always to obey the law. To endorse anti-correlativity and political legitimacy on the justification conception, one must agree that systemic reasons apply to the legitimacy question but not to the obligation question, and that the systemic reasons are sufficient to justify government’s demand for general legal compliance. But both positions are flawed. Whether I have a duty to obey a particular authority depends not only on agent-centered questions such as whether I have consented or whether it would be unfair for me to take benefits without giving back through obedience. And it depends not only on status-based questions such as whether the regime is sufficiently just or whether I owe an associative duty to my fellow citizens satisfied through obeying law. It depends, as well, on what the consequences of my disobedience would be, both in the specific instance and more generally; such considerations are relevant to whether it would be wrong for me to disobey the law. For example, whether disobeying the law would harm others in that instance is a reason that applies not just to whether the state may justifiably ask us to obey the law, but also to determining whether the subject acts wrongly in disobeying. And whether disobeying the law would lead to instability—either through copycat disobedience, helping erode an ethos of law following, or undoing necessary aspects of a coordinated response to a social problem (or failing to establish such aspects)—is relevant both to the government’s claim to legitimacy and to whether the subject owes a moral duty to obey the law. Furthermore, both state and subject should pay attention to comparative error costs from a rule of lawabidingness versus an openness to situational reassessment. In short, the subject’s determinations of rightful and wrongful conduct are not reducible to agent-centered or status-based factors; they include as well statecentered factors regarding how one’s behavior will help or harm others. This is fairly straightforward in thinking about moral obligation in a nonpolitical setting; what I must and must not do (and what I may be permitted to do) is determined at least in part by consequentialist concerns. There’s no reason to think that should change if the purported obligations are political. If I am right here, then the case for correlativity is strong, if by political legitimacy we mean the justification conception, according to which government is legitimate if justified in demanding general compliance with 28

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law. If the systemic arguments are strong enough to mean it is wrong for me to disobey the law (as a general, prima facie matter), then they are strong enough to justify the government’s claim of authority over me. But if the systemic arguments cannot support political obligation—if they are too weak or of the wrong sort—then they also cannot support government’s demand that subjects always obey the law. As I argue in Chapter 1, the systemic, consequentialist case for political obligation fails. If one accepts my argument that these types of reason apply equally to the state and to the subject, then the failure of the systemic, consequentialist case for political obligation ensures that the government’s claim of legitimate political authority, demanding general legal compliance, fails as well. Frederick Schauer and Larry Alexander describe a tension between an institution’s reasons for imposing and enforcing rules and a subject’s reasons in deciding whether to follow them. Their arguments—about the “asymmetry of authority” and “the gap”—are a way of rejecting correlativity and the position that the same reasons apply to both state and subject. I’ll set forth their basic claims, and offer a brief rejoinder, connected to my foregoing arguments. Schauer says there’s an “asymmetry between the irrationality of obedience from the subject’s perspective and the rationality of requiring it from the authority’s.”38 He explains that from the authority’s point of view, blind rule following may be socially optimal, after balancing error costs from blind rule following against error costs from anything short of that. In specific situations, though, subjects might believe following the rule would be irrational.39 Alexander offers a similar argument about a “gap” between “what we have reason to do, all things considered (including the value of rules and the effects of our conduct on preserving valued rules), and what we have reason to have our rules (and the officials who promulgate and enforce them) require us to do.”40 At times Schauer’s point seems to be about differential viewpoints;41 if so, it doesn’t say anything normative but is instead a piece of descriptive sociology. (The same is true if his point is about what authority claims one has a moral duty to do.) Indeed, in recent writing, Schauer often refers to the different “perspectives” of subject and authority.42 One of his examples involves an interaction between two subjects, each of whom (reasonably) believes the other’s judgment to be erroneous.43 If Schauer means to transplant this kind of example to the subject-authority relationship, his point 29

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would be orthogonal to mine—nowhere do I reject the possibility of reasonable mistake by subject or authority (or both). But I take Schauer to be making a deeper point: the authority’s and subject’s reasons in fact differ. Indeed, he writes: “If authority is asymmetric, if the lack of a (good moral) reason for obeying authority does not entail the lack of a (good moral) reason for imposing it. . . .”44 (Although he uses “if ” here, elsewhere—e.g., two paragraphs above—he clearly supports asymmetry as a proposition.) And Alexander, in the quotation above, also talks about “reasons,” not merely viewpoints or claims. In this way, Schauer and Alexander reject the correlativity of political legitimacy and political obligation (again, understanding political legitimacy in the justification sense). The reasons for having rules, they say, differ from our reasons for obeying rules, and authority may be justified in imposing rules even when the subjects do not have good reason to follow them. They do not neglect the subject’s ability—and perhaps duty—to account for systemic factors, however, so let’s explore their views further. Schauer writes, “an agent with a reason to participate in and assist in the effectiveness of some co-operative enterprise would have a reason for following rules emanating from that enterprise,” because such rules “may assist in the solution of Prisoner’s Dilemma or co-ordination problems, or assist in other dimensions of co-operative enterprises.”45 Moreover, “The agent trying to do the right thing might also take rules as reasons for action on the basis of considerations that are simultaneously moral and epistemic,” for example “if an agent doubts that she is best situated to know what to do [and she believes that the rule-maker] is likely to have superior moral knowledge and judgement.”46 Schauer dubs this kind of decision-making—accounting for the systemic virtues of rules but not lock-step following them—“rule-sensitive particularism.”47 But the authority still has reason to insist on more, on lockstep obedience. In his discussion of rule-sensitive particularism, Schauer explains this insistence as a way of allocating power, which we can see as a hedge against subjects’ too often judging departure from rules to be correct. As he says in the section on asymmetry of authority, “if the authority predicts that the cases of erroneous disobedience will outweigh . . . the cases of justified obedience, then the rule-maker will wish to stifle disobedience simpliciter.”48 Although the authority has reason to insist on lock- step obedience, the subject’s reasons still might differ, or so Schauer assumes, for purposes of argument, when he writes: “it would be an irrational ruleworship for a subject to follow a rule when, all things considered (including 30

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epistemic, co-ordination, and Prisoner’s Dilemma reasons for following the rule) the subject is convinced that the rule should not be followed in this case.”49 Thus, even if subjects account for systemic factors, authority’s reasons and subjects’ reasons might part ways. But if the authority and the subject are both properly accounting for the entire set of relevant reasons, then they should reach the same answers to what reason demands. Authority must pay attention to what matters to its subjects (which includes its subjects’ comparative expertise and sources of normative authority apart from the state); subjects must pay attention to their being part of a social system, which includes the possibility that the authority has more expertise in a given matter and that the subjects might be improperly biased or otherwise unable to account for risk factors; although the perspectives will differ, and the judgments might differ (because of differential information or processing ability, as well as improper factors such as bias or failure of consideration), as a conceptual matter it’s wrong to say that the order or type of reasons—or the correct answers from the standpoint of right reason—differ. Heidi Hurd reaches a similar answer to the problem posed by Schauer and Alexander. She writes, “if the systemic consequences of a judge’s decision are also consequences of the actions performed by the citizen whose case is decided by the judge, then those systemic consequences are part of the set of consequences that determines the rightness of the citizen’s actions,”50 adding that the “rule of law values of liberty, equality, and the protection of reliance interests are reasons for action for citizens as well as for judges.”51 While some actors may be epistemically ill-situated to evaluate the degree to which their actions will affect [rule of law, democracy, and separation of powers] values,” she argues, “the consequential effects of their actions on those values nevertheless enter into the determination of the rightness of their actions.”52 Here’s an example of how the interdependence of reasons works.53 A terminally ill man dying slowly in great pain wishes to end his life soon with physician assistance. But the state’s law forbids physician-assisted suicide. The legislators thought carefully about the problem, concluding that even if they required second (and perhaps third) medical opinions, imposed a waiting period, permitted only certain drugs, etc., there would be too great a risk of error, of patients’ dying under pressure from others, of patients’ making decisions without possessing full mental faculties, etc. Just as the state considered reasons that would apply to the most sympathetic individual cases, 31

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so should the individuals involved—here the dying man, his family, and his physician—consider the systemic costs pointed out by the state. There is a right answer to the question from the standpoint of justice (although as always it may be difficult to locate)—either the law should be general and proscribe physician-assisted suicide or it should not exist at all or it should exist but permit exceptions under stated circumstances. The reasons that go to determining the right answer are reasons applicable to state and citizens alike. If the state is justified in demanding across-the-board compliance with a ban on physician-assisted suicide, then there’s a moral duty to obey such a law. Remember that we have not reached the override stage. Many laws will be justified as a general matter, compliance as a general matter will be the right thing to do, but individual overrides will also be justified. And the overrides will be justified not from any particular point of view, but as a matter of right reason, for the state as well as the subject to follow. One possible reading of Schauer and Alexander is that they are mixing apples and oranges—considering whether there is a general, prima facie reason for the state to insist on legal compliance, but then considering whether in specific instances it is right for individuals to depart from law, due to circumstances the state could not or did not consider in its initial calculus. No doubt this may occur, but if we accept the interdependence of reasons, if a subject’s departure from law is justifiable (based on whatever is proper to justify overriding otherwise legitimately binding law), then the state should stand back and recognize the justifiability of the override (i.e., exception) and realize that a continued insistence on uniformity (under these special circumstances) is not warranted. Although I contend that political obligation (and thus political legitimacy) is unlikely to obtain in any large civil society, I do not endorse anarchism, of either the philosophical or political stripe. Regarding the former, although on the justification conception political legitimacy is unlikely to obtain, the thinner version of political legitimacy is all around us. Legal systems exist, satisfying Hartian conditions of institutionality and complying with basic rule of law requirements. Such basically legitimate governments can exercise justified coercive authority—but on a law-by-law or case-by-case basis, rather than wholesale, as the justification conception requires. And when the state exercises justified authority law by law or case by case, then subjects have a moral duty to obey that particular law or 32

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instance of law’s application. Government can produce benefits from its coercive authority and its institutionality that private action cannot yield. Classic examples include solving coordination and prisoner’s dilemma problems, of the social sort. Thus, although I agree with the philosophical anarchists that coercive power requires justification, I reject the view that such justification requires consent in some form, and I reject the argument that private markets can solve the myriad of problems faced by modern society. I do not, though, engage this debate more fully in this project. What I have said about philosophical anarchism is enough to reject political anarchism as well, for it requires both philosophical anarchism and further arguments for taking action against the state. This is similar to A. John Simmons’ position, though with different terminology. Simmons uses “justification” to ward off the anarchist challenge; we can show, he writes, “that some realizable type of state is on balance morally permissible (or ideal) and that it is rationally preferable to all feasible nonstate alternatives.”54 On Simmons’ usage, the state is justified; he borrows various systemic stability arguments for this, including Hobbes (overcoming prisoner’s dilemma and coordination problems), Locke (overcoming self-interest and lack of knowledge regarding what’s right to do), and Kant/Rousseau (no true autonomy in the state of nature).55 Simmons reserves “legitimacy” for discussing specific states; he supports correlativity and argues that we are unlikely to be able to defend political obligation and political legitimacy in real-world conditions.56 I agree with Simmons’ basic position on these matters, except instead of sharply distinguishing “justification” from “legitimacy,” as Simmons does, I have found it useful (and I think it appropriate) to refer to whether a state may justifiably demand general legal compliance as the “justification” conception of political legitimacy. Finally, one could adopt my argument for permeable sovereignty even if one rejects correlativity. My argument from correlativity is that the state’s subjects don’t have a moral duty to obey the law, correlatively the state (even in a liberal democracy) isn’t politically legitimate in the thick, justification sense, and instead the state should understand sovereignty as permeable rather than plenary, as plural, as consisting of both the state’s normative claims and the various other sources of normative claims on the lives of its subjects. Exemptions help to realize this idea of permeable sovereignty, letting go of the state’s grip over its subjects through law. If 33

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one rejects correlativity, and instead believes that the state’s demand for obedience to law is justified—even if one agrees that subjects don’t owe a moral duty to obey the law—then the argument for permeable sovereignty wouldn’t follow as a way of alleviating the legitimation crisis. But it still could follow, albeit on a somewhat different line of reasoning. Exemptions could still be warranted out of respect for the dilemma into which we’re placing our fellow citizens; recognizing sovereignty as permeable would be a way to alleviate the pressure on fellow citizens faced with demands from competing sovereigns (the law and the other sources of normative authority). Imposing the state’s law would be justified, but our fellow citizens’ resistance to compliance might also be justified. This would also lead to a better modus vivendi—a civil society with less strife.

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Consent, Fair Play, and Political Participation The most familiar arguments undergirding political obligation are agentcentered, i.e., are based in knowing, voluntary undertakings of individual persons. There are several versions, beginning with the core theory of consent and moving outward to theories of fair play and participation. Consentbased theories require that one knows one is consenting to the authority of another; fair play and participation theories do not have this requirement, but still require that the undertakings in question—receiving benefits in a cooperative scheme or engaging in political participation (or having the opportunity to so engage)—be knowing and voluntary. There are problems with each of these purported grounds for political obligation, although one conceivably could skirt the more nuanced approach and reject agentcentered arguments up front as insufficiently attentive to the power imbalance that exists between any political regime and any individual. “[M]any persons subject to legal systems do not have any option between accepting or not accepting benefits and burdens of life in the system and, therefore, do not have moral obligations to obey.”1 Consent The most commonly (though not universally)2 agreed-upon predicate for political obligation is consent. Here is Locke: [I]t is not every compact that puts an end to the state of nature between men, but only this one of agreeing together mutually to enter into one community and make one body politic. . . . The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth, nor under the dominion of any will or restraint of any law but what that legislative shall enact according to the trust put in it.3 35

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The appeal of consent theory is “the view that political authority is morally legitimate only when its subjects freely choose to submit themselves to that authority.”4 One might define consent theory as any theory of political obligation which maintains that the political obligations of citizens are grounded in their personal performance of a voluntary act which is the deliberate undertaking of an obligation. Thus, theories which ground political obligations in promises, contracts, or express or tacit consent will all count as varieties of “consent theory.”5

As obvious as consent may seem as a predicate for political obligation, nonetheless it is worth asking why my knowingly and voluntarily agreeing to be ruled by another should suffice for6 (and perhaps be necessary to)7 political obligation. Consent works in this way only if we begin from a premise of individual self-government, or autonomy. Only if autonomy is our premise do individuals have something to yield, to cede to another, thereby making the other’s assertion of authority legitimate. Thus, for those who disavow such a starting point—because of either a premodern theory that refuses to recognize authority in the individual,8 a conception of autonomy that entails yielding or deference to authority,9 a theory of the self that is more intersubjective,10 or a theory of political society that sees individual choice as always compromised by the power of others11—consent will fail conceptually as a predicate for political obligation. If, though, one believes that “[m]an is naturally free” and “gives up his natural freedom (and is bound by obligation) only by voluntarily giving a ‘clear sign’ that he desires to do so,”12 then one can provide a secure underpinning for political obligation. The most straightforward (nonconsequentialist) route to grounding political obligation is express consent. I yield my natural right of self-government to a political entity, ceding the power to govern myself for the security the state brings. This consent must be knowing—I must be aware I am consenting and of the contours of such consent—and voluntary—the consent must be uncoerced. Such consent rarely if ever exists, however, and there are several conceptual problems that render express consent problematic as a ground for political obligation. First, express consent as a ground for political obligation works only for unanimous consent. Majority rule is a type of consent, but it is not pure consent, because the losers have not consented on the issue in question. 36

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The losers (all of them, along with all of the winners?) might have consented earlier, to the system of voting. But here we have a problem of binding future generations, and whether each person (say, upon reaching the age of majority) would have to consent to the system for political obligation to be properly grounded. Rousseau attempted a complex, but ultimately flawed, theory of unanimous consent to ground political obligation. According to Rousseau, we become most fully free, as moral agents, through exiting the state of nature and living under law: “[M]an acquires with civil society, moral freedom, which alone makes man the master of himself; for to be governed by appetite alone is slavery, while obedience to a law one prescribes to oneself is freedom.”13 But Rousseau recognized prepolitical freedom too, and that we need a theory to resolve the tension between this earlier freedom and living under law: “ ‘How to find a form of association which will defend the person and goods of each member with the collective force of all, and under which each individual, while uniting himself with the others, obeys no one but himself, and remains as free as before.’ This is the fundamental problem to which the social contract holds the solution.”14 Although eventually majority voting may bind the whole, this is legitimate only because of an initial unanimous agreement.15 Through that initial unanimous agreement we give the state its legitimacy while maintaining our sovereignty as citizens. As Rousseau put it, “the essence of the political body lies in the union of freedom and obedience so that the words ‘subject’ and ‘sovereign’ are identical correlatives, the meaning of which is brought together in the single word ‘citizen.’ ”16 The resulting exercises of state power represent the “general will.” It is unclear whether “general will” refers to every product of a majority vote or to the ideal true law the majority is seeking/interpreting. However we resolve the vagaries of that conception, the entire argument founders on the necessity for, and unlikelihood of, initial unanimous consent. Rousseau appeared to recognize this problem in his paeans to the virtues of small states and the difficulty of locating appropriate preconditions for legitimate delegation of citizen sovereignty in large states.17 There is a second conceptual problem. Why should consent be valid beyond any specific authorized order or law? Why, that is, should we accept a “blank check” consent, which might extend horizontally over many not fully specified issues at once, or vertically over time? We have now traveled far from a paradigm case. That is, if we accept as a paradigm case of 37

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consent my agreeing to allow a particular person to take a particular action involving me—say, I let a barber cut my hair—and if we then extend this to a group of people unanimously ceding their separate desires to take a collective action (say, all agreeing to pay $X to acquire a piece of common property), it is a more complex extension to allow consent to whatever a majority of representatives wants now or in the future. We can see this as a problem with the “knowing” part of consent; we can’t know the contours of what we’re giving up with blank check consent, either over a wide range of current situations or into the indefinite future.18 Then there is the knotty question of inalienability, i.e., whether all personal autonomy may be consented away, or whether there are limits. Those limits might run beyond the standard cases (i.e., I may not sell myself into slavery or acquiesce in my own torture or killing), and they might scuttle the consent-based argument. Anarchists such as Robert Paul Wolff take the view that one may never fully cede one’s moral deliberation to others: Even after he has subjected himself to the will of another, an individual remains responsible for what he does. But by refusing to engage in moral deliberation, by accepting as final the commands of the others, he forfeits his autonomy. . . . Taking responsibility for one’s actions means making the final decisions about what one should do. For the autonomous man, there is no such thing, strictly speaking, as a command.19

Wolff puts the matter cleanly—there is a fundamental incompatibility between personal autonomy and political authority. This is a controversial theory, however; some contend that autonomy requires living under law.20 Whichever position one takes on this question, the other concerns remain—we won’t find sufficient express consent to undergird political obligation in large, complex, modern societies, and several conceptual hurdles would remain for determining what suffices for consent to law. For tacit (or implied) consent to work as a type of consent—and not as a ruse to pull us into a nonknowing, nonvolitional cession of authority— there must exist a clear set of social norms indicating the action in question constitutes consent.21 Take an easy case: I call a plumber to fix my sink. She comes and fixes my sink. She asks me for payment. I say, “Huh? We never discussed payment.” She rightfully may rely on the clear, background social norm that when one calls a ser viceperson for work, pay38

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ment is expected. One may not escape being bound in a specific politicalsocial setting by claiming ignorance of a clearly established background social norm dictating that action X constitutes consent. In other circumstances, though, the background social norm might not clearly indicate consent. Consider situations in which one person takes the lead and assumes others have consented to his choices. For example, several old friends who haven’t gotten together in years meet for dinner; the most aggressive member spells out a plan for the rest of the evening; the others don’t say anything, instead just enjoying their dinner and conversation. When one (or more) balks at continuing the get-together at a bar after dinner, the alpha member says, “But you all agreed! I laid this out, and no one said anything!” Without more specific background norms of how this group of friends operates, the lead member’s inference of consent is faulty. Locke offered this argument for tacit consent undergirding political obligation: The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds—i.e., how far any one shall be looked upon to have consented and thereby submitted to any government, where he has made no expressions of it at all. And to this I say that every man that has any possessions or enjoyment of any part of the dominions of any government does thereby give his tacit consent and is as far forth obliged to obedience to the laws of that government during such enjoyment, as anyone under it.22

This is related to, but not the same as, the argument from fair play (discussed in the next section), which focuses on what we owe our fellow citizens in a cooperative scheme. The fair play argument is grounded in a principle of fairness (avoiding free-riding) and is not a consent theory; the residence plus benefits argument is an attempt at reconstructing consent. But we lack the type of background social norm necessary for residence plus benefits to constitute consent to political authority. As Hume explained, we’re born into a political society and follow established norms;23 this isn’t generally understood as constituting knowing and voluntary acceptance of political authority. Moreover, there is the exit problem: For residence to count as a ground for political obligation, the choice against residence— namely, emigration—would have to be a real, live, relatively inexpensive option. But it is not.24 Our ties to place, language, family, friends, work, culture, etc., render emigration—while formally often a possibility—in 39

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reality a heavy price to pay for opting out. Thus, residence plus benefits is not sufficient for constituting consent to political authority and is not part of a choice package that is a realistic option for most people. Fair Play Consent to a lawgiver’s authority is hard to find, but perhaps there are other knowing, voluntary citizen acts that may ground political obligation. Consider this not uncommon scenario: One lives in a community from which one derives benefits. If everyone else (or even most others, in any event enough to assure the benefits exist) does his or her part, and I do not do mine, but still accept the benefits, I can be accurately accused of behaving immorally, of free-riding off of others’ restraint on their liberty. This “fair play” theory goes back to Plato; George Klosko offers the most carefully developed modern account.25 The principle of fairness, says Klosko, depends on five factors’ being present: a joint venture/cooperative scheme; rules that coordinate and provide benefits for cooperators; cooperation is burdensome because one must submit to restrictions; the cooperation of most but not all is needed to achieve the benefits; noncooperators as well as cooperators receive the benefits.26 We can achieve the fairness goal by (1) not providing the benefits to the noncooperators, (2) freeing the cooperators from their burdens, or (3) requiring that the noncooperators bear the burdens as well. The theory of political obligation based on the principle of fairness comes into play when (1) and (2) can’t work, and we must move to (3).27 Fairness obligations are ones of reciprocity; by failing to cooperate, the free-rider improperly assumes “a liberty that he would be unwilling to extend to other people.”28 We owe such obligations to our neighbors, not to the state itself.29 Consent and fair play theories share a focus on individual citizen actions, i.e., they are agent-centered. Each of us acts knowingly and voluntarily in assuming duties to obey. Under consent theory, we knowingly and voluntarily agree to obey the law. Under fair play theory, we knowingly and voluntarily live in communities and accept the benefits of community arrangements that involve restrictions on liberty. We can, therefore, dispense with the argument that since fair play theory is not the same as consent theory, it is nothing more than a clever end-run around consent, and will not suffice to ground political obligation. We can dispense with this critique because it relies on too narrow a conception of autonomy as undergirding political obligation. The person who knowingly and voluntarily 40

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lives in a community and accepts the benefits of such a joint enterprise has exercised her autonomy in a way that binds her to doing her fair share just as express (and occasionally tacit) agreement, under consent theory, binds. There is no autonomy deficit in fair play theory. Nonetheless, after we make some qualifications, we will see that the fair play argument is too limited to ground a general theory of political obligation. The first qualification—which John Rawls made to H. L. A. Hart’s initial idea30 before he turned away from fair play and toward a natural duty to obey just institutions31—is that it is not enough for benefits to be thrust at someone; rather, one must knowingly accept benefits.32 Robert Nozick, who had critiqued fair play theory, seemed to be relying mostly on forced benefits—i.e., benefits one can’t easily turn down once one is living in a place. (An example is the benefits of hearing messages broadcast through a public address system.) Rawls’ correct rejoinder was that we should focus instead on benefits one knowingly accepts (or takes), such as water from a common well; this permits us to maintain the link to the autonomy baseline that allows fair play to substitute for consent as a ground for political obligation. Most government benefits, however, are “open” ones—or, as Klosko calls them, “nonexcludable”33—which cannot easily be declined. These include classic public goods such as roads, fire and police protection, and environmental regulation. We might criticize someone for not doing her fair share in a joint scheme of social cooperation, but if all she is accepting are public goods that are not easy to reject, our critique is more of her failure to possess the virtue of sacrifice, chipping in, and the like, and not that she is acting immorally. For she did not engage in a knowing, voluntary act she could have chosen against. Thus, fair play theory grounds a duty of reciprocity, but only in limited circumstances, when one knowingly and voluntarily accepts or takes benefits, provided by a cooperative scheme, that one could readily decline. Even in such circumstances, however, one may discharge the duty of reciprocity by doing one’s fair share, through either payment or service. Obeying all of the jurisdiction’s laws is too sweeping a demand here, not justified by the requirement of doing one’s fair share in a cooperative scheme. Below, I discuss a variation on the fair play argument, in which reciprocal law-abidingness is what’s demanded of all. But if we’re focused on giving back proportionately to the benefits one knowingly and voluntarily accepts or takes, always obeying the law is too much to ask. 41

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Perhaps, though, we should see at least some open benefits in a different light. Imagine situations in which others sacrifice their freedom to behave in certain ways. Living in such a community provides us the benefit of security, and we might, in return, owe certain duties to respect the security of others. A community might provide police protection. This benefit is thrust at us, i.e., it’s an open benefit, but it’s also a benefit that is presumptively beneficial to any reasonable person, and thus though not something we can easily turn down, also not something we can reasonably claim we would want to turn down. In such a setting, we might owe two types of duty—one, to pay our fair share of taxes for police protection; two, to prescind from engaging in self-help. To duties owed reciprocally for accepted benefits we can readily decline, we can thus add duties owed reciprocally for “presumptively beneficial” goods and ser vices (as Klosko dubs them).34 Klosko’s examples of such goods and ser vices are physical security (national defense and law and order), protection from a hostile environment, and provisions for satisfying basic bodily needs.35 To ground a duty of reciprocity, Klosko adds that the presumptively beneficial goods must be worth their cost and distributed fairly overall.36 But the resulting duty is still too limited for a general theory of political obligation. Rather, the argument yields a duty to obey specific laws, adherence to which provides benefits a reasonable person would not decline (or that govern the situations in which we are accepting benefits we could turn down). For example, for some of the presumptively beneficial benefits, paying taxes would suffice for one’s reciprocal obligation; for some, backing off from engaging in self-help would suffice. Moreover, people may have differential obligations depending on the benefits received. Because even this expanded fair play theory is not general enough to ground a duty to obey all laws, the state can’t rely on it to shift the burden to the individual claiming a separate source of normative authority by which she desires to live. On the argument I’ve been developing, the burden is still on the state to justify its claim of authority, law by law or case by case. Additionally, focusing on presumptively beneficial benefits moves us beyond an agent-centered theory to a state-centered one. The predicate is that some (at least minimal) state is better than none, the state is at least minimally just, and it is rational to prefer certain benefits that can only or more easily be provided by a state. Thus, the duty of fair play becomes a mixed theory of political obligation.37 Not that there’s anything wrong with that! But if we’re introducing arguments not predicated solely on agent 42

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choice, we may introduce rejoinders to the systemic, consequentialist argument that predicates the shift to presumptively beneficial benefits. Here are two such concerns (in addition to other rejoinders offered later in this chapter to consequentialist arguments for political obligation). First, people have different levels of risk aversion and risk preference, and those levels vary depending on what’s at stake. Some people prefer less regulation and more freedom (with the attendant risks), and would reject the notion that such preferences are unreasonable. Even though we have given up on fair play as a truly general theory of political obligation, the theory of presumptively beneficial benefits was still meant to be general within its reach. But this rejoinder suggests it cannot be. Second, and related, the grounds for such difference of opinion on what is truly beneficial may be based in a separate source of sovereignty, of normative authority, and not merely in idiosyncratic risk preferences. To demand that all do their fair share to ensure provision of goods and ser vices it would be unreasonable to turn down rides roughshod over those who follow sources of normative authority that don’t include the more widely valued goods and ser vices. As I argue in more detail in various parts of this book, the Rawlsian move toward an overlapping consensus of reasonable comprehensive views cannot solve the problem of dissent from separate normative communities; it just restates the problem. Klosko recognizes the limited scope of his argument regarding presumptively beneficial goods, and suggests that we also owe a duty of reciprocity regarding some discretionary goods that are practically indispensable for the presumptively beneficial goods.38 Examples are transportation, communication, public health such as sewers and clean water, some level of public education, and the stability of the overall economy. That is: “a basic societal infrastructure.”39 Extending the theory this way still leaves us short of a truly general theory of political obligation, as Klosko also recognizes, and the force of our obligations regarding discretionary goods will be less than that regarding the presumptively beneficial ones.40 My arguments in the preceding paragraphs apply here as well, perhaps with even more force, as this extension of Klosko’s argument has moved us well beyond any plausible agent-centered theory and into a consequentialist one, with all of its pitfalls as a grounding for political obligation.41 A different version of fair play theory relies on a specific type of sacrifice people might make in a cooperative scheme: they might give up a right to 43

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refuse to obey the law. In other words, the community might establish and practice reciprocal law-abidingness. Would it be free-riding to try to follow the norms not of the state’s law but of one’s religion or philosophy or other source of norms? Maybe a version of the Kantian categorical imperative kicks in here: one should not perform an action or follow a principle one would not want similarly situated others to follow, and perhaps one would not want one’s fellow citizens to retain the right to decide whether and when to be law-abiding (even if we limit it to opting out for strong, separate normative reasons only, not merely for different rational calculations regarding utility, or anything even more idiosyncratic). This is not, here, the consequentialist argument that my disobeying the law might lead either to a contagion of disobedience and a crumbling of the state or to my developing disrespect for the law that might spill over into situations beyond those in which we would be willing to recognize disobedience for valid reasons. I discuss these concerns in the last section of this chapter. Here, let’s limit the inquiry to fairness/free-rider concerns.42 There are three decisive rejoinders. First, even if the argument were otherwise sound, it would still be too limited to generate a general theory of political obligation. Some laws require sacrifice by all so all may benefit, and if not everyone is sacrificing an argument of the “who do you think you are?” variety might work. But not all laws require sacrifice of this sort. Some set forth values by which the state (majority) believes we should live, but violation of such laws by some might neither harm others (a consequentialist point) nor take any option off the table most others would choose to retain (a fairness point). If my religion requires me to ingest a distasteful drug (say, peyote), and members of most religions (or secular folk) have no similarly situated normative claim for breaking the drug laws, then the “who do you think you are?” argument doesn’t fit, because such an argument requires, additionally, a well-founded claim of “I want to do that too (for strong normative reasons, not merely on a whim or simply for pleasure)!” Second, the argument improperly assumes a baseline of the moral correctness of the law. If we’re not yet discussing the consequentialist argument (what would happen if everyone, or lots of people, started to disobey? what would happen to my law-abidingness in other circumstances if I disobey here?), then we can’t yet be saying, “Whether or not the law is morally correct is beside the point; we need to provide stability for the system.” Asking people to put aside their separate norms in the name of a principle of recip44

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rocal law-abidingness assumes the laws we’re being asked to follow have some merit as morally correct. Otherwise the demand for reciprocity is empty, like the demand for equality when the thing we’re asking to be treated equally isn’t independently defensible as a good.43 Yet, the problem of political obligation is generated by our operating in a terrain of moral uncertainty (that was the point of setting up the legal positivism predicate). Third, if we limit opt-outs to bona fide claims of separate normative authority—i.e., if we treat the claim as one for permeable sovereignty, not permeable idiosyncracies—and if we remember a balancing test will have to be applied (e.g., you don’t get to sacrifice your children in the name of your religion), then we may lay the groundwork for thinking about fairness and reciprocity differently. That is, we should seek substantive rather than formal equality, and recognize that administering a nuanced system of exemptions better achieves fairness goals than does insisting on lock-step obedience. I develop this argument in Chapter 2, “Exiting from the Law.” Political Participation For political participation to work as an agent-centered ground for political obligation, it must satisfy the concerns of autonomy from which all agentcentered theories of political obligation emanate. Political participation— specifically, the right to vote, but more generally making one’s voice heard in the process of electing representatives and making laws—doesn’t include agreeing to abide by the results of the political process, so it won’t suffice for express consent. Furthermore, except in rare instances, we lack a background social understanding of political participation as tantamount to knowing and voluntary consent to obey the law; thus, participating in the political process won’t allow us to infer that one has tacitly agreed to be bound by the outcome.44 Also, one does not usually agree to be bound by what the majority decides (and we have already canvassed other problems with majority consent). Finally, basing tacit consent on remaining in the jurisdiction combined with political participation runs into the problem of the unrealistic emigration option. In sum, considered as an agent-centered theory, political participation may be a necessary condition for political obligation, but it is not a sufficient one, for neither voting nor otherwise influencing lawmaking constitutes a knowing and voluntary yielding of authority to the state. Perhaps, though, we should consider political participation not as a strictly agent-centered ground for political obligation, but rather as a blend 45

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of an agent-centered and state-centered argument: Literal self-government is the baseline. But society can’t work that way. We must cede individual power to a collective power. Thus we develop self-government via representation. In a liberal democracy, this works in a certain way: Participatory democracy is too hard to accomplish, so a republican form of government will have to do. This also has the virtue of filtering prejudice. Majority vote is the only fair method of procedure. To majority voting via a republican form of government we add protections in an effort to keep straight that the citizens are sovereign and the officials our agents: limited government; constitutionalism (higher law trumping lower law); judicial review with enforceable rights; and rights of political participation: the right to vote and the freedoms of speech, press, and petition for redress of grievances. In the United States, as a result of much turmoil and effort, the franchise has been extended broadly to any citizen over the age of eighteen. Moreover, the Supreme Court has interpreted the First Amendment free speech and free press guarantees in a capacious manner when it comes to political expression. Thus, U.S. citizens have sweeping opportunities to influence who is elected and what laws are passed. Might not political participation in a liberal democracy suffice to ground political obligation by understanding it as the reinscription of citizen sovereignty in a state that achieves real advances over chaos? The answer is no, whether we consider the argument from an agentcentered or state- centered perspective. As an agent- centered argument, participation—i.e., voice—is an important trope of self-government, but it’s still a trope, and thus it both tantalizes and misleads.45 Citizen sovereignty may be at the core of liberal democracy, but its cession rarely takes place knowingly and voluntarily, and it is better to treat voice as a factor in the obligation/legitimation discussion, but never as a sufficient one. My sovereignty, my self-government, is my ability to deliberate morally and to knowingly and voluntarily yield that deliberation, but only if I am doing so directly (consent) or am benefiting from a joint enterprise in a specific way (fair play). Granted, there may be systemic, consequentialist reasons for yielding power over one’s life to others, but these reasons are not strong enough to support a rule of political obligation (as I explain later in this chapter), even if they are strong enough to rebut the anarchist’s case. Three more points are relevant here. First: The combination of a republican form of government and the realities of political economy scuttle any 46

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attempt to ground political obligation in voice, no matter how richly we protect our rights of voting, speech, press, and petition. We do not directly govern ourselves (collectively); we do so through elected representatives, who often represent massive numbers of us. How precisely our voices are heard is a complex matter, but we have no constitutional right to have them heard or to participate directly in governance.46 Furthermore, the legislative process is sufficiently clogged by well-organized factions seeking either to enact or to block legislation that it is often difficult to disentangle publicly regarding justifications for legislation from rent-seeking ones. True majorities (to the extent they exist) often face substantial legislative roadblocks. On the other hand, on some issues, minorities remain entrenched, able neither to prevent the passage of legislation painful to their interests nor to get legislative accommodations. Our disconnection from the laws we supposedly have a moral duty to follow grows. Second: Even if our rich array of political rights could be thought, arguendo, to undergird a rule of political obligation, this would not hold if such rights were cut off for any person or group of persons. In other words, if one were gagged and prevented from participating, then the predicate rule of obligation could not hold. In Chapter 2, “Permeable Sovereignty and the Religion Clauses,” I maintain that in our constitutional order, the paired religion clauses—no establishment; free exercise—play out a gag rule combined with a right of exemption, i.e., a rule against political obligation. I discuss this matter beyond the religion clauses in assessing Rawls’ rule of public reason later in this chapter. Third: Again assuming arguendo that rights of political participation could yield a rule of political obligation, there is the further problem of the dead hand. It’s one thing to argue for a moral duty to obey statutes enacted during one’s majority, when one may vote. It’s another to argue for a moral duty to obey statutes enacted before one had the right to participate, and harder still to argue for such a duty to obey statutes enacted long ago, never revisited, perhaps rarely enforced. This connects to the generational argument I raise in the “Guidelines” section of Chapter 4, and yields this conclusion: If we are to see participation as even approximating a sufficient grounding for political and interpretive obligation, we must connect it to the clearest ground of political obligation, consent, by paying attention to time, specifically, by rejecting the grip of the past on the present generation of citizens. Perhaps (again, arguendo) a prior generation of citizens knowingly and voluntarily delegated power and accepted the outcomes of that delegated 47

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process, but why should that decision bind a current generation? I discuss all of this in greater detail in Chapter 3. Frank Michelman and Louis Michael Seidman share my concern that a common ground theory (which I discuss in the next section) can’t solve the obligation/legitimacy problem,47 but each develops a participation/voice solution—or amelioration—that we should view as insufficient. Their approaches are of the anti-correlativity sort: they are focused on grounding legitimacy in the thick, justification sense I discussed in the Introduction, without necessarily simultaneously grounding obligation. Since I adopt correlativity, by rejecting their case for political legitimacy I necessarily reject any possible extension of that case to political obligation. Michelman acknowledges the tension between, on the one hand, the desirability of a centralized, coercive state apparatus and a concomitant duty to support such an institution (in part through obeying its laws)48 and, on the other hand, the bona fide claims of conscience some will have against such coercion.49 With appropriate moral minima, contends Michelman, the systemic stability need for a state renders the government justified in demanding everyone’s compliance with the law and citizens justified in collaborating with government’s efforts at securing such compliance. He calls this a respect-worthy governmental system, and it is part of his theory of political legitimacy.50 He adds that each of us can, from the viewpoint of his or her separate normative commitments, interpret the Constitution to render it legitimate; “[l]egitimacy . . . is, from the standpoint of a reciprocityminded liberal, an insuperably and irreducibly decentralized, personal judgment.”51 The Constitution and interpretive techniques are capacious enough for this task. Through voice of the constitutional interpretive sort, we won’t resolve the tension between the state’s need for authority and the individual’s resistance in conscience, but each of us can find a way to legitimate the state’s authority. As Michelman puts it, “there is no reason why every single participant cannot or should not perceive [the government totality] differently and describe it differently and thereby accommodate the pull each reasonable participant will feel, for good reason, toward finding it respect-worthy.”52 Seidman writes that our Constitution is “unsettled,” our political disagreements “intractable,”53 and says this is a good thing. We must try to build a theory of constitutional law, he maintains, that “does and must reflect contestable political views” while acknowledging that no such theory 48

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“will settle our disagreement about these views.”54 As does Michelman, Seidman moves to a theory of plural voice to yield at least some legitimation; those who lose political battles can nonetheless maintain allegiance through a constitutional law that leaves no permanent losers;55 “an unsettled constitution helps build a community founded on consent by enticing losers into a continuing conversation.”56 One can see the despair on the surface of Michelman’s and Seidman’s writings—they know the case for political obligation is weak, but aren’t ready to concede there’s no justification for state power. Seidman says we don’t have agreement on the content of the higher set of rules, and even if we did, there’s no reason people should feel bound by such rules when they produce bad results; he adds that constitutional law is impossible but also unavoidable.57 Michelman writes: “Facts of reasonable pluralism . . . dampen hopes that any possible constitution can provide a publicly objective standard for system-level appraisals of governmental respect-worthiness, capable of sealing such appraisals off from the very kinds of morally freighted disagreements over policy that make political legitimacy the devilishly elusive aim that it is for a modern, plural, secular-liberal society.”58 Voice serves to reinscribe the principals (citizens) in the governmental process, to help overcome the alienation that comes with delegating power. These arguments have deep roots in U.S. constitutionalism. John Hart Ely’s influential theory of judicial review is built on protecting rights of political participation;59 a central part of our constitutional struggle has been about the right to vote (not to mention freedom of speech and of the press). Such rights of political participation may well be necessary to any cogent obligation/legitimation theory. Voice helps ensure we are heard, that our interests are considered. There are many other virtues of voice—feeling noticed, reconnecting the principals with the agents, helping ward off impermissible grounds of official action, and building records (for judicial review, inter alia). But voice falls short of recognizing sovereignty as permeable, rather than plenary. When we say a law is inconsistent with our religious or philosophical commitments, we’re asking not only to be heard (perhaps to block or rescind the law, or to receive an exemption) but also to be permitted to live by our own lights. We’re asking for rights of exit—actual or represented. And although we can’t insist on receiving such a right all the time (balancing must take place), we have a valid claim that our separate sources of normative authority be appreciated as equally as binding on us as the 49

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centralized one of the state’s law. Voice can help in this mission; only exit can achieve it. To summarize my argument: a premise of pluralism, cashed out as “permeable sovereignty,” and the need for the state to justify its coercion; no successful theory (stand-alone or mixed) of political obligation that can back a general duty to obey the law; correlatively, no successful general theory of political legitimacy (adopting the thicker justification view of legitimacy); thus, to achieve some measure of legitimacy (or as a partial remedy for its otherwise unjustifiable coercive claims), the state must treat our separate sources of normative authority as seriously as its own laws, by providing exemptions when a balancing test favors letting us live by our own lights; the state may justify laws law by law or case by case; the state has the burden of justification. Although this theory shares much with Michelman’s and Seidman’s, I don’t see voice as being as helpful as they seem to, and I push for rights of exit. Jack Balkin offers a theory of constitutional legitimacy—and perhaps obligation—that shares some qualities with Michelman’s and Seidman’s, but adds a focus on “the role of faith and narrative.”60 “The legitimacy of our Constitution,” maintains Balkin, “depends . . . on our faith in the constitutional project and its future trajectory.”61 Proposing a “narrative of redemption,”62 Balkin says the Constitution can become “what it always promised it would be but never was.”63 Thus, “the legitimacy of the Constitution requires faith in the redemption of the constitutional project over time.”64 Constitutional legitimacy is complex; it is a mix of sociological, procedural, moral, and democratic conceptions.65 Balkin says the constitutional narrative is one of “a collective subject, a people that attempts to fulfill certain political and moral commitments in historical time.”66 Connecting legitimacy and obligation, he writes: If we see previous generations as engaged in the same political project we are engaged in, we might very well feel an obligation to keep the project going, and because we want to keep the project going, we accept the constitutional system and try to view it with charity and optimism. But the reason why we feel bound to it is not that some group of strangers did something a long time ago. It is because we identify with them, take pride in their accomplishments, and feel at home in connecting ourselves to them and identifying ourselves with them.67

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The collective subject, and our constitutional past, are not, though, real entities. They are (largely) invented. “The constitutional story,” explains Balkin, “is based on imagination, on the fiction of a collective subject that extends back into the past and forward into the future.”68 “The past does not merely constrain and discipline the future. Rather, the future repeatedly recreates and reinterprets the past in its own image, making the past serve present ends.”69 Balkin elegantly and accurately describes how much of U.S. constitutional discourse operates. I have several concerns, though, with the normative, nondescriptive aspects of Balkin’s argument. First, normative constitutional legitimacy is most easily grounded either in originalism—we today are bound by what the framers/ratifiers did then—or in our Constitution’s being, today, sufficiently just. Balkin’s approach is neither of these. Although one can see how legitimacy in a descriptive/sociological sense may be based in our ability to accept a through-line of progress, it’s never clear how Balkin’s faith/redemption story grounds (what I would call) real political legitimacy, i.e., legitimacy as justified authority. Second, given the admittedly imaginative quality of the diachronic through-line that Balkin sets forth, it’s not clear how constitutional legitimacy in a justificatory sense could be grounded. Third, although most of his discussion is about legitimacy, Balkin touches on obligation in a constitutional sense. He writes of “an obligation to keep the [constitutional] project going.” So this is not about political obligation in the sense of a general moral duty to obey the law. But even as obligation to the constitutional project, Balkin’s case would seem to work only for those who have faith in a constitutional redemption narrative, and not for citizens simply by virtue of being citizens. This doesn’t undermine the power of constitutional faith of a Balkinian sort, but it does undermine the power of such faith to do much work in binding us together. As I explain in various places in this book, for many, the glue of such binding toward common goals and understandings is weak, and must be understood in context of other normative commitments. Finally, why do we need this kind of diachronic construction—admittedly often imaginative—to have faith in a constitutional order? Balkin never puts it quite this way, and perhaps he would acknowledge that faith (and acceptance and perhaps obligation) can come in other ways. For many, it’s asking a lot to opt in to the kind of narrative of constitutional redemption that

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Balkin offers. Alternative grounds for constitutional faith might be, for some, relaxing the grip of law; for others, ensuring that the constitutional order makes their lives better. As I argue in Chapter 2, we must look to voice’s opposite—exit—if we are to come close to solving the obligation/legitimation problem. In the setting of the law of judgments, however, we should treat voice as sufficient (and necessary) to produce a (limited) duty to obey. Our law of judgments follows a simple principle: if one has had the opportunity to participate in an adjudication, one may be bound by the judgment of the court. Necessity here means we can’t bind you without giving you an opportunity to be heard by the adjudicator. Sufficiency is more complex—I assume other aspects of a thin theory of political legitimacy are present, plus whatever conditions we would need to render the adjudicative process acceptable (e.g., an unbiased adjudicator). With these conditions in place, an opportunity to be heard in the adjudicative process suffices for bindingness in a way an opportunity to be heard in politics and the legislative process does not. For both civil plaintiffs and defendants, concerns for systemic stability and settlement are at their zenith in the adjudicative setting, where state power focuses on the facts of a specific case, and where we rely on impartial arbiters to bring disputes to final resolution. Similarly, for both parties voice is at its apex, for each party has an opportunity to be heard by the adjudicator on the specific facts of her case (as opposed to the diluted, filtered way in which our voices are heard through voting and lobbying). For a plaintiff in a civil action, adjudicative bindingness flows also from her knowing and voluntary choice to invoke the court’s jurisdiction, i.e., from her consent. The latter is not the case for a civil defendant, who has been dragged into court. (I do not address criminal judgments, although the importance of notice, opportunity to be heard, and representation is obviously key to the bindingness of such judgments.) I discuss three items related to the bindingness of judgments and the connection to questions of political obligation.70 The law of judgments. The core principle is that one must be party to a case to be bound by an adjudicative judgment, although this gets ratcheted down to “notice and opportunity to be heard.” The Supreme Court’s “decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party.”71 The Court has “endeavored to delineate discrete exceptions that apply in ‘limited circum52

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stances’ ”;72 for example, a nonparty may be bound if she assumed control over the litigation, if she agreed to be bound, if she had an appropriate preexisting legal relationship with one of the parties, or if she was represented by an appropriate fiduciary.73 Two additional exceptions raise deeper issues. One involves a res that must be divided in one litigation; the classic examples are probate and bankruptcy.74 Here, necessity dictates a departure from the party requirement (or perhaps we should say overrides the fairness concerns that animate the party requirement). The other is the class action. The Court has approved binding nonparties in the class action setting with precautions to protect the interests of absent class members, which include adequate representation (but which do not necessarily include notice and opportunity to be heard).75 This concept of adequate—or virtual— representation is usually not acceptable for purposes of the bindingness of a judgment. As the Court has stated, “We disapprove the doctrine of preclusion by ‘virtual representation.’ ”76 I won’t spend more time on class actions, other than to note that bindingness in the class action setting is an exception to the rule and continues to raise complexities with which the Court struggles. The rule that one must be party to a case to be bound by a judgment is best seen as a development of federal common law for federal courts,77 and such principles tend to influence the Court’s interpretation of federal statutes, as well. Congress may alter the rules, and the question then is what are the constitutional procedural due process minima for bindingness? The Court has not held that the Constitution requires party status for bindingness. But, at least where the adjudication would deprive one of life, liberty, or property, the Court has held that the Constitution requires notice and opportunity to be heard.78 Thus, party status, or at least notice and opportunity to be heard, is both necessary and sufficient for adjudicative bindingness—both constitutionally and as a matter of political theory. Participation values are satisfied; concerns for order and avoiding chaos are at their highest; an aspect of the latter is the value of repose.79 The collateral bar rule. In Walker v. City of Birmingham,80 the Court held that one must challenge a judicial injunction through ordinary judicial process rather than by disobeying it and then seeking to challenge its constitutionality. The Court reasoned that “in the fair administration of justice no man can be judge in his own case,” and that “respect for judicial process is a small price to pay for the civilizing hand of law.”81 The point is 53

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consistent with the law of judgments—because we have participation by the parties bound, and because concerns with social order are at their highest when a court has focused its attention on a specific matter (and violation thereby represents the most acute challenge to the rule of law), requiring use of the appellate process to challenge a court order is justified.82 Paulsen’s (and Cover’s) further challenge. Michael Stokes Paulsen argues for interpretive pluralism in the following sense: Each branch of the federal government has the power to interpret the Constitution and need not defer to another branch’s constitutional interpretation. Specifically, for present purposes, he maintains that the President need not obey a court order, if the President believes the order reflects an incorrect view of the Constitution.83 Here we have a matter of political and interpretive obligation combined—a purported lack of political obligation (duty to obey the law, here a court order) because of a claimed lack of interpretive obligation. I share Paulsen’s commitment to interpretive pluralism in constitutional law, and in Chapter 4 reject judicial supremacy in constitutional interpretation. But such pluralism should yield to a limited form of political obligation, when a court has issued an order in a case in which one has been a party (or at least has had notice and opportunity to be heard). Paulsen’s arguments to the contrary are: The executive has the last word in most controversies through the power to execute a court’s judgment (or not); the legislature may check the executive through the powers of the purse, appointments, legislative agendas, and impeachment; the judiciary exerts a check by its opinions and political pressure the executive might face in going against such opinions.84 He adds these points to his argument for interpretive parity among the federal branches. But the specific arguments for disobedience to a court order are weak. The “last word” point is merely descriptive; the legislative checks (and, to a different and lesser extent, the judicial checks) exist, but don’t directly address the arguments I made above for bindingness from participatory values and social order. Robert Cover’s influential article “Nomos and Narrative” also surrenders too much to the centrifugal force, eloquently advancing the cause of plural normative communities, or nomoi, but neglecting the legitimate claims of the common government. Cover argues that formal institutions of law are “but a small part of the normative universe that ought to claim our attention.”85 Central government should “stop circumscribing the nomos; we 54

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ought to invite new worlds.”86 Focusing on one small, separatist religious group, Cover maintains “the Mennonite community creates law as fully as does the judge. . . . The Mennonites are not simply advocates, for they are prepared to live and do live by their proclaimed understanding of the Constitution.”87 Nomic groups such as the Mennonites seek “a refuge not simply from persecution, but for associational self-realization in nomian terms.”88 The Constitution, says Cover, should be read to include a broad principle of associational liberty, which “implies a degree of norm-generating autonomy on the part of the association.”89 In particular, notes Cover, “The religion clauses of the Constitution . . . [are] unique in the clarity with which they presuppose a collective, norm-generating community whose status as a community and whose relationship with the individuals subject to its norms are entitled to constitutional recognition and protection.”90 Cover forcefully makes the case for a broad principle of associational freedom based not on the negative, or checking, value of dissident communities, but rather on the affirmative virtues of living according to law made locally, by a group that constructs itself as an insular, norm-making community. Cover goes further than this, though, when he suggests not only that the Court should construe the Constitution to require government to respect such separate nomoi, but also that the Court has no greater authority to interpret the Constitution than do these separate communities. He makes “a very strong claim for the Mennonite understanding of the first amendment[,] . . . asserting that within the domain of constitutional meaning, the understanding of the Mennonites assumes a status equal (or superior) to that accorded to the understanding of the Justices of the Supreme Court. In this realm of meaning—if not in the domain of social control—the Mennonite community creates law as fully as does the judge.”91 If Cover means that the Mennonite understanding of the Constitution is worthy of respect, and that the Constitution should be read to accord great associational, norm-creating freedom to communities such as the Mennonites, then I do not disagree, and advance related arguments in Chapter 2. I also agree, and argue in Chapter 4, that the Constitution and the Court’s interpretation of the Constitution are not identical; other government actors and citizens have a role to play in interpreting the Constitution, regarding both unresolved questions and questions the Court has addressed but others think should be reexamined. This acknowledgment of a plurality of constitutional interpreters is consistent with granting the final say to 55

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the Court in specific interpretive disputes, i.e., individual cases, at least until it can be persuaded to change its mind. In the passage quoted above, though, Cover implies that the Court has no privileged status as constitutional interpreter even in specific cases. It is one thing, though, to accord great norm-creating freedom to religious communities and to respect their role in interpreting the Constitution. It is another thing to strip the Supreme Court of its role as final arbiter of specific pieces of constitutional litigation. Not surprisingly, then, Cover takes issue with the collateral bar rule announced in Walker, as “subordinating the creation of legal meaning to the interest in public order. . . . When the judge, aligned with the state, looks out upon the committed acts of those whose law is other than the state’s, Walker tells him that the court’s authority is greater than its warrant in interpretation of the Constitution or the law.”92 Cover admits he “accords no privileged character to the work of the judges.”93 But Cover has elegantly misdescribed Walker, which teaches not that a district court’s injunctive authority is greater than its warrant in interpretation of the Constitution or the law, but rather that the question whether the injunction is warranted should be decided through proper judicial process, not disobedience to specific court orders under the guise of interpretive heterogeneity. Natural Duty and Associative Obligation Natural Duty This is the argument John Rawls developed in A Theory of Justice,94 as he moved away from an argument based in fair play.95 If a state meets minimum criteria of justice—including matters of structure and rights, both negative and positive—then its citizens have a moral duty to support that state. More precisely, the duty “requires us to support and to comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established. . . . [I]f the basic structure of society is just, or as just as it is reasonable to expect in the circumstances, everyone has a natural duty to do his part in the existing scheme.”96 This includes a duty to obey the law (even unjust laws, so long as they don’t exceed certain limits of injustice).97 Perhaps most liberal democracies will satisfy the minimum criteria for a just institution. I refer to this as a status-based argument because one’s status as citizen of the state in question is sufficient to yield the duty, if the state is sufficiently just. The duty does not turn on the sub-

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ject’s choices, and so I don’t classify the argument as agent-centered. And although a systemic, consequentialist argument for the existence of a minimal state is a predicate for the natural duty argument,98 the natural duty point turns on what it means to be a citizen of a just state. It is a constitutive argument, or, as I have termed it, status-based. One debate—which I mention and set aside—is whether Rawls’ theory fails because of a “particularity” problem. His argument requires us to support just institutions that “apply to us,” but how do we know which ones do? And why shouldn’t the duty, if it exists, require our supporting just institutions everywhere? As Leslie Green puts the matter, “We normally regard political institutions as applying to us only if they either exert real control over our lives or if we stand in a relation of moral obligation to them. But the latter is the very problem at issue.”99 Rawls’ theory grounds a duty to obey the law on a fairly thin view of legitimacy, i.e., a legal regime exists and it is minimally or reasonably just. There are several reasons to think this conception of legitimacy is too thin to support the case for political obligation. First, the natural duty argument is (in part) that one must obey the laws of a minimally or reasonably just government because otherwise the stability of such a government would be imperiled. To the extent that the natural duty argument and the systemic, consequentialist argument overlap, the former is subject to the same objections as the latter. I mention some of these in the endnotes and cover them in more detail in the last section of this chapter.100 Second, perhaps we may “do [our] part” in just institutions by not undermining such institutions, i.e., by not taking up the cause of political anarchism. Or perhaps we may do so by obeying the law (i.e., complying) in some core, minimal ways, such as paying taxes for open public goods; indeed, one way of viewing the natural duty argument is to see it as another way of putting the systemic, consequentialist part of the fair play argument. In sum, always obeying the law seems too much to demand if we’re asking people to “do what is required of [them]”101 in just institutions. We can do our duty in a more limited fashion; a natural duty argument is a mismatch for the case for political obligation. Third, the concept of a minimally or reasonably just institution, which predicates Rawls’ natural duty argument for political obligation, can be seen as similar to Rawls’ larger effort to overcome societal disagreement through finding common ground. Although Rawls developed his natural

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duty argument in A Theory of Justice, where he was setting forth what he came to see as a comprehensive liberalism (i.e., liberalism as true), and his common ground theory (overlapping consensus; public reason; political legitimacy) in Political Liberalism, the two are properly seen as part of the same project. Rawls’ natural duty theory is not idealized as is much else in A Theory of Justice. Rather, it is predicated on a society’s being “just, or as just as it is reasonable to expect in the circumstances.”102 Furthermore, as I discuss below, Rawls’ “political” liberalism isn’t as neutral among comprehensive doctrines as I think appropriate; elements of his comprehensive liberalism remain. An institution’s being minimally or reasonably just, and citizens’ abiding by an overlapping consensus of reasonable comprehensive doctrines through the practice of public reason, appear to be neutral grounds for political obligation and legitimacy. If we can show the grounds are not neutral, and instead replicate the basal problem of disagreement, then we will need to look elsewhere to justify the state’s coercive claims via law. Because Rawls’ common ground theories, and my objections, play a key role several times in the book (in the earlier discussion of correlativity, this discussion of political obligation, and the later discussion of diachronic interpretive obligation), I set forth Rawls’ arguments from Political Liberalism, and respond here and later on. In A Theory of Justice, Rawls argued that in “a well-ordered society” all citizens endorse certain basic principles of justice—what he calls justice as fairness—on the basis of a “comprehensive philosophical doctrine.”103 A doctrine is comprehensive “when it includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole.”104 People are unlikely to accept unanimously one comprehensive doctrine as foundational. Thus, Rawls came to see the concept of a well-ordered society as “highly idealized.”105 Rawls’ project in Political Liberalism, therefore, was to elaborate how people who differ in their comprehensive doctrines can nonetheless accept common principles of justice. As he put it, “the problem of political liberalism is: How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines?”106 According 58

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to Rawls, “the aim of political liberalism is to uncover the conditions of the possibility of a reasonable public basis of justification on fundamental political questions.”107 Rawls stresses the difference between comprehensive philosophical liberalism and political liberalism throughout the book.108 Whereas comprehensive liberalism takes the position that the moral order arises from human nature and society and that each reasonable, conscientious person has access to that moral order, political liberalism “does not take a general position on [these issues] but leaves them to be answered in their own way by different comprehensive views.”109 Those different comprehensive views can be understood as views of the good as opposed to the right or the just. But the conception of justice Rawls uses—“justice as fairness”—limits the range of comprehensive views that may become part of the overlapping consensus. “In justice as fairness,” says Rawls, “this restriction is expressed by the priority of right.”110 Rawls describes this limit through a “reasonableness” criterion. He explains this at various points; perhaps the clearest elucidation is a “willingness to propose and abide by fair terms of social cooperation among equals,” and a “recognition of and willingness to accept the consequences of the burdens of judgment,”111 which means an awareness and acceptance of the many sources or causes of disagreement.112 The solution to the problem of political liberalism, says Rawls, is the development of an overlapping consensus of reasonable comprehensive doctrines through the practice of public reason.113 An overlapping consensus of divergent doctrines does not depend, stresses Rawls, on balancing among the doctrines or taking bits and pieces from each.114 Rather, an overlapping consensus can develop because “the reasonable doctrines endorse the political conception, each from its own point of view.”115 If an overlapping consensus exists, consisting of the intersection of all the reasonable comprehensive doctrines in society, then all citizens can accept this shared political conception of justice as correct from the viewpoint of their own comprehensive doctrines, recognize other comprehensive views as reasonable (even if they think them mistaken), and accept the absence of coercion to support their own comprehensive doctrines.116 Sometimes it sounds as if Rawls is developing a type of actual consent theory here, but the argument is better seen as suggesting that we ought to develop and find a way into the overlapping consensus from the viewpoint of our separate comprehensive doctrines, and if we have located what appears to be a stable political state, then we can understand it through the 59

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lens of overlapping consensus. It is not, therefore, an agent-centered theory looking to what individuals actually choose; rather, it is a rationalist theory about what we ought to be doing, or an interpretation of what we have done, using agreement or consent metaphorically. It can accordingly be seen as the specification of a natural duty theory of political obligation, which includes a duty to “assist in the establishment of just arrangements when they do not exist,”117 in the setting of a liberal democracy seeking common ground among disagreement as to comprehensive doctrines. The overlapping consensus must come about through public reason—that is, through terms shared as citizens and not through terms grounded in comprehensive philosophical, moral, or religious doctrines. Public reason involves “following the usual guidelines of public inquiry and rules for assessing evidence. . . . Those guidelines and rules must be specified by reference to forms of reasoning and argument available to citizens generally, and so in terms of common sense, and by the procedures and conclusions of science when not controversial.”118 The requirement of public reason applies to “ ‘constitutional essentials’ and questions of basic justice”119 and perhaps more weakly to more mundane political matters.120 The limits of public reason don’t apply to personal deliberations or private associational matters, but do apply when we act as citizens in a public forum or when voting. And they apply to public officials, and “in a special way to the judiciary”; Rawls refers to the Supreme Court as an “exemplar of public reason.”121 In later work, Rawls modified the public reason argument, permitting the use of comprehensive doctrines in otherwise impermissible situations, so long as adherents to such doctrines are willing as well to translate them into commonly available types of reasoning and argument.122 Public reason is a necessary condition for legitimate governmental power because “our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.”123 In other words: “In recognizing others’ comprehensive views as reasonable, citizens also recognize that, in the absence of a public basis of establishing the truth of their beliefs, to insist on their comprehensive view must be seen by others as their insisting on their own beliefs. If we do so insist, others in self-defense may oppose us as using upon them unreasonable force.”124 Rawls states two exceptions to the requirement of public reason. First, in a somewhat (but not completely) well-ordered society, it may be appro60

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priate on some hotly contested issues to refer in politics to comprehensive doctrines, not to justify the outcome we want but rather to assure others of the sincerity of our political positions.125 Second, in a fundamentally unjust not-well-ordered society, the requirement of public reason may be suspended “as the best way to bring about a well-ordered and just society in which the ideal of public reason could eventually be honored.”126 The procedural mechanisms of political liberalism—the gag rules of public reason and the overlapping consensus of reasonable comprehensive views—are consistent with the ideas of some comprehensive doctrines. But adherents to other comprehensive doctrines—the “unreasonable,” nonEnlightenment-sympathetic ones—cannot, consistently with such doctrines, join in the overlapping consensus, and their doctrines also may not countenance the exclusion of sectarian arguments in the process of governance. Rawls acknowledges this differential impact of his theory and admits the procedures are not neutral, but asserts the harm is merely incidental and the aim of political liberalism neutral, i.e., political liberalism is agnostic on the truth claims of the various comprehensive doctrines.127 It is unclear, though, why neutrality of aim should be dispositive, when the effect of Rawls’ admittedly nonneutral procedures is to favor certain comprehensive doctrines over others. A more fully agnostic political liberalism would attend more carefully to the two ways in which its procedures disfavor certain views.128 First, although the relationship in Rawls’ work between the liberal principle of political legitimacy, on the one hand, and the ideas of an overlapping consensus and of public reason, on the other, is not crystal clear, all three are nonideal, political conceptions, addressing conditions of pluralism and seeking to justify coercive political power and to explain how it is possible. All three trade off of conceptions of the “reasonable”: we care about only reasonable comprehensive doctrines in seeking an overlapping consensus; public reason must appeal to common sense, and its types of argument must be available to citizens generally; and political legitimacy turns on what citizens may reasonably be expected to endorse in light of principles acceptable to their common human reason, i.e., as reasonable and rational. But some doctrines aren’t reasonable in Rawls’ sense and can’t subscribe either to the gag rules of public reason or the outcome (or procedure) of the overlapping consensus or both. Rawls’ comments on the inevitable disparate impact of the procedures of political liberalism on adherents to unreasonable comprehensive doctrines suggests that it is fine for these doctrines to wither away (which is one thing); and 61

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there doesn’t appear to be a backup theory of legitimacy justifying coercive state power over such adherents (which is another thing), other than a return to a comprehensive liberal claim that their pre- or non-Enlightenment views are wrong. Rawls never puts it this way and is at pains to say political liberalism never aims at such a claim. But his legitimacy theory otherwise has a hole that needs filling, and at the very least he seems to treat (what he considers) unreasonable comprehensive doctrines as beyond the pale and thereby not part of the predicate for a theory of legitimacy. Second, preventing one from offering what one believes to be true and good and just as the basis for a constitution or laws undercuts the state’s case for binding the gagged person to the outcome of politics. Here is where my theory of permeable sovereignty can play a key role; we can insist government accommodate practices dictated by comprehensive doctrines whose adherents have been silenced by the rules of public reason. I develop this argument in Chapter 2, “Permeable Sovereignty and the Religion Clauses” (specifically for religious comprehensive doctrines, as an interpretation of the First Amendment of the U.S. Constitution). Rawls does say that justice as fairness “provides . . . strong arguments for an equal liberty of conscience.”129 Such liberty should be limited only when it would lead to “a reasonably certain interference with the essentials of public order.”130 Later, he adds: “Justice as fairness honors, as far as it can, the claims of those who wish to withdraw from the modern world in accordance with the injunctions of their religion, provided only that they acknowledge the principles of the political conception of justice and appreciate its political ideals of person and society.”131 But there is no developed argument for a wide berth of accommodating those who can’t subscribe to the overlapping consensus or rules of public reason, no acknowledgment that public reason’s gag rule might raise a legitimacy concern and perhaps a need for exemptions, and no acceptance of sovereignty as permeable—as equally valid in principle from any source of normative authority, the state’s or otherwise. I have finished my excursion through Rawls’ Political Liberalism and have critiqued his theory of political legitimacy as insufficient to justify coercive authority over those who cannot be part of his common ground efforts. His argument for a natural moral duty to support institutions that are “as just as it is reasonable to expect in the circumstances,”132 which includes a duty to obey the law, is best seen as the correlate of his legitimacy theory, and accordingly falters for similar reasons. In each instance—an 62

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overlapping consensus of reasonable views, the exclusion of sectarian views (understood broadly) from public reason, or basing a duty to obey the law on the system’s being reasonably just—Rawls papers over the problem of disagreement through a seemingly neutral mechanism.133 In fact, though, a liberal Enlightenment conception of the reasonable is in play at each turn.134 Associative Obligation In this section I discuss a set of related arguments for political obligation that I call, following Ronald Dworkin, “associative obligation.” I first offer some general critiques, and then evaluate the theories of Dworkin, Philip Soper, and Margaret Gilbert. Linking the arguments is a claim that we have duties to others by virtue of our association with them. The arguments don’t turn on the volitional aspect of association (to the extent it exists). Rather, they are status-based and constitutive, i.e., they are about what it means to be, say, a friend or a citizen, and the conclusion is that part of what constitutes friendship or citizenship is obligation to one’s friends or fellow citizens. Furthermore, the arguments for political obligation as associative obligation begin with observations about intimate association, i.e., association with people we know and with whom we have some form of affective bond. The arguments then seek to analogize from the setting of intimate association to the political arena. Theories of associative obligation purport to solve a problem that vexes other leading theories of political obligation.135 Agent-centered arguments have the right kind of specificity, for they show how individual persons have obligations to specific states. But such theories are insufficiently general in reality, for not enough people have engaged in knowing and voluntary activities that yield a duty to obey the law. On the other hand, although natural duty theories are sufficiently general in not turning on such individual choices, they lack the ability to link specific persons with specific states. (That was the concern of the particularity objection.) Theories of associative obligation keep the state-specificity of agent-centered theories—they are about obligations to our fellow citizens (derived from obligations to our friends etc.)—but are free of the generality problem of those theories, for they don’t turn on knowing and voluntary choices of individual persons. Instead, they apply across the set of citizens in the political society in question. Furthermore, they track an important aspect of how some believe we may properly be bound. “Exit, Voice, and Loyalty”136 63

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may be considered three ways to grapple with the political obligation problem. My theory is predicated on the need for a strong exit option (or representation of such) as a remedy for a legitimation/obligation dilemma; I discussed voice earlier as political participation (and rejected its sufficiency for grounding a moral duty to obey the law); loyalty is the third part of the trilogy, and this section on associative obligation constitutes my treatment—and rejection—of loyalty as an adequate way of grounding political obligation. There are three main problems with thinking of political obligation as associative obligation. First: In seeking to ascribe duties through status or role, theories of associative obligation must do heavy lifting to overcome the is-ought fallacy. Second: Associative obligation to one’s compatriots is either too narrow (we should think of such obligation more globally) or too wide (we can’t easily extend the intimate association paradigm to the political setting), and we can’t get it just right with a middle ground of associative obligation at the national level. Third: Even assuming arguendo that associative obligation properly attaches at the nation-specific level, a general duty to obey the law doesn’t follow. Regarding the first concern: We have some unconsented obligations— the natural duties toward others such as moral injunctions against murder, rape, robbery, etc. But do we have unconsented obligations based on status or role? The concern is the same as with many is-ought moves—one can’t bridge the gap between the descriptive and the normative, at least not without a normative theory of how a certain description entails an ought of the prescriptive kind. We are familiar with awful examples of is-ought moves; our history of ascription based on race or gender is the most powerful (for many Americans) of these. One of the concerns is with what we might call role stickiness, i.e., many social roles are not chosen and are hard to transform. It’s one thing to say, “You chose to be a judge; therefore you have a duty of impartiality you don’t have as an advocate.” It’s another thing to say, “You’re born the son of a mill-worker; therefore you have a duty to be a mill-worker.” Let me flesh out the objection. To say obligations of any sort attach by dint of role or status—if unconsented (i.e., we’re not talking about taking an oath of office or signing a contract)—is immediately to risk an is-ought mistake: how can describing an unconsented role or status entail any normative conclusions about what one ought to be or how one ought to 64

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behave? Some seem to take the fact that we can’t avoid being born into the role of child or sibling or citizen as worth some weight in the discussion of whether obligations attach. For example, Michael Hardimon says that although it’s true we don’t choose the roles of son or brother or citizen, we’re not “impressed into them either. They are roles into which we are born.”137 Samuel Scheffler writes that some claims on us come from “the complex and constantly evolving constellation of social and historical relations into which we enter the moment we are born. For we are . . . born to parents we did not choose at a time we did not choose; and we land in some region we did not choose of a social world we did not choose.”138 We’re claimed by families and nations, adds Scheffler, and we must reckon with these claims.139 Hardimon and Scheffler are descriptively accurate about our being born into certain roles and being subject to certain claims. We should resist, though, any normative weight attaching from the fact that these claims are made on us. The fact of being born into a certain role—like any fact, even if unavoidable—isn’t in itself worth anything in a prescriptive calculus (and may be cause for alarm, as I discuss shortly).140 The argument then shifts, as it must, to whether these unconsented roles are valuable, and if so, whether obligations are part of such roles. Accordingly, in his discussion of noncontractual role obligations, Hardimon refers to “the reflectively acceptable social role,” i.e., “one would accept it upon reflection,” adding we must judge whether the role is “meaningful, rational, or good.”141 Similarly, Scheffler maintains that we have reason to value some relationships and that some responsibilities are essential to such relationships.142 For both scholars, citizenship is an intrinsically valuable relationship entailing certain obligations.143 This is the right kind of argument, for it gets us past the fact of nonconsent and attributing value to role or status. Two matters remain. One is whether obeying the law is part of the necessary package of duties we owe our fellow citizens. I argue in a bit, and more throughout this section, that this is not the case. The other is that because of role stickiness we should be careful before attributing obligations to status alone, even with an argument for the role’s value.144 Roles often develop because of an unjustified power dynamic, and there’s a temptation to ascribe value to the way things are because people with power who often have great control over roles have a vested interest in uncritical acceptance of roles, and because settlement is soothing. I have more to say in this section about making a 65

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fetish out of nationality, and the last section of this chapter goes into greater detail about the lure and pitfalls of settlement. This package of issues leads some to claim that unchosen associative obligations don’t exist at all, in either the political or intimate setting.145 Under this argument, parents may still have duties toward children, because they produced them (bracket whether the biological parents or some larger group of persons should have parenting duties toward children), but most associations don’t entail obligation by dint of the association. Although it may be considered virtuous to be loyal to one’s siblings or friends, one doesn’t have an obligation to be loyal.146 I won’t explore this critique further; I’m willing to accept for purposes of discussion that obligations (of some sort that we’d have to specify) are constitutive of certain valuable intimate associations, such as friendship or fraternity/sorority. In other words, one wouldn’t be able to call oneself a friend or a sibling without taking on certain duties toward the other. Although we’re now talking about unchosen obligations that are instead constitutive of status or role, even in such a setting we should be mindful of the exit option available. One may have duties to a friend as a friend, but one can leave the friendship. One may have duties to a sibling as a sibling, and though one can’t lose the status of brother or sister, one may become estranged from one’s sibling, and one aspect of estrangement is detaching oneself from fraternal/sororal obligations. I mention these exit options here to set up the contrast later with membership in a political society, where the costs of exit are high. Regarding the second concern: Another way of putting this point is that the problem associative obligation theory purportedly solves—the lack of realistic generality of agent-centered theories and the lack of a clear nationspecific connection of natural duty theories—resurfaces as an insistence that we owe duties either on a level connected to our agency or our actual affective attachments (either one more intimate than citizen-to- citizen) or on a level connected to our being human (more general than citizen-tocitizen). Let’s start with the latter. If associative obligations exist, and if they exist in the political arena, perhaps we are too stingy in thinking they exist between fellow citizens only. Scheffler describes this as the “distributive” or globalist objection to the nation-specific associative obligation argument.147 Even if our relationship to our compatriots is a valuable one, entailing special responsibilities (which is the position Scheffler eventually takes),148 we would still, says Scheffler, have to account for ways in which giving such priority would harm outsiders, and this would affect the con66

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tent of the special obligations and their strength.149 A duty to obey the law might not, though, follow from extending our obligations globally. Perhaps we may discharge cosmopolitan obligations through financial and other support, just as we may discharge a natural duty to support our own just government in a way short of political obligation, as I discussed earlier in this chapter. The globalist objection to political obligation as associative obligation is that we’re thinking too small. Others suggest—and I include myself in the critiques of Dworkin, Soper, and Gilbert that follow—that political obligation as associative obligation thinks too big.150 If they exist at all in an unchosen fashion, associative obligations are constitutive of role, and it’s easy to see how this is so in intimate settings such as friendship and family. It’s not so easy, though, to see how they’re constitutive of the role of citizen (and this is even before getting to the point about whether they include a duty to obey the law or might be satisfied in a different way). To some extent this is a point about the propinquity of love. Part of what it means to love and be otherwise intimate is to be selective and have an affective bond with the other person. As Dworkin well states, “If we felt nothing more for lovers or friends or colleagues than the most intense concern we could possibly feel for all fellow citizens, this would mean the extinction not the universality of love.”151 For Dworkin, this is irrelevant to his argument for political obligation as associative obligation, which turns not on specific psychological attitudes we have toward our fellow citizens but rather on whether we can interpret members of a political society as engaging in practices that evidence attitudes of equal concern. But if we conclude that obligation by association makes sense in the intimate setting because of the closeness and selectivity of the persons involved, then we will see how difficult it is to extend the argument to (say) a nation of 308 million people (the current approximate size of the United States).152 Regarding the third concern: Even if associative obligation properly extends to the political setting, the obligation could be fulfilled in a way short of always obeying the law. Obligation by association can be seen as a blend of consequentialist and fair play arguments, creating a new type of statusbased argument. Take the setting of friendship. We are seeking to achieve the ends of friendship (the consequentialist piece) through a type of reciprocity (the fair play piece). Certain obligations (say, of loyalty) follow. In the political setting, we’re seeking to achieve (at least) a stable political society; on the associative obligation argument, to achieve this we need to 67

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engage in reciprocal practices of citizenship. But these practices could fall short of mutual uniform obedience to law. They could include: no political anarchy (so no seeking actively to undermine the state); mutual nonaggression; mutual support for key items such as national defense and police and fire protection. And, since the argument here is partly consequentialist, we can add (as I discuss further later in this chapter) that there are situations in which breaking the law will not harm our compatriots. What we owe each other as citizens would not necessarily extend to political obligation, i.e., to general, uniform law-abidingness. Moreover, government can use tools of persuasion rather than coercion to achieve the goal of stability through reciprocity.153 U.S. constitutional law is favorable toward government speech, either directly or through conditional funding, even on unsettled issues. And liberal democratic theory, though conflicted on whether government may seek to promote a contested notion of the good, should be amenable to such efforts. Some view liberalism as requiring that government abstain from using both its coercive and persuasive powers to promote distinctive conceptions of the good. But we need not adopt such an anti-perfectionist stance toward government persuasion. Government speech is just one contributor to the speech market, which, at least in a country such as the United States, is robust and protected by a strong free speech principle vigorously enforced by the courts. At the core of such a principle is trust in and respect for individuals to hear different points of view and make up their own minds; autonomy, as such, is at the core of our free speech doctrine. It is inconsistent with such trust and respect to assume that when individuals hear governmental points of view they will cower rather than assess and decide. My argument requires that government speech be part of a marketplace of ideas, and not a monopolist; it also requires that purported government speech not be in fact coercive. Furthermore, although we need not see it as an enforceable constitutional norm, government should clearly identify its speech—either direct or funded—as its own. That way citizens can note which speech is the government’s and call the government to task as needed.154 Although government may use its powers of persuasion to seek stability through reciprocity, the argument would not be complete, at least not for this book, without adding a word of caution. “E pluribus unum” means “out of many, one,” and we should keep both the centripetal “one” and the centrifugal “many” in balance. The state has a role to play in keeping this balance; we should not view government as completely focused on achiev68

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ing uniformity, assimilation, and common ground. The permeable sovereignty that is a baseline conception of my argument—and to which we should return when we see the failure of the case for political obligation (and legitimacy)—should be respected as well when government speaks. That means, for example, giving seed money for speech generally, for different people to advance their own conceptions of the good, rather than simply giving such money to advance the government’s preferred message. We should avoid making a fetish of the nation-state,155 of seeking reciprocity through stability, even if the mechanism is merely government persuasion rather than coercion. Seeing sovereignty as permeable, seeing our repositories of authority as multiple, allows us to avoid this kind of fetishism of common ground. One might respond that my argument allows for the displacement of such a fetish from the state to, say, one’s religious community. There is some truth to that, and personally I adhere to what one might call comprehensive agnosticism. But my political and constitutional theory require that I adopt a position of political agnosticism (following Rawls’ distinction between comprehensive and political liberalism). Accordingly, my theory respects those who choose to put themselves in the hands of concentrated authority, of the state or of (say) a religion, even as I choose otherwise. The theory does, though, require us to see the state as a competitor for the people’s allegiance, not as the principal repository of such. I turn to discussion of Dworkin, Soper, and Gilbert, each of whom offers a significant theory of political obligation as associative obligation. Although only Dworkin calls his theory one of associative obligation, all three build their arguments for political obligation on the paradigm of intimate association. Dworkin says his “aim is to show how political obligation can be seen as associative.”156 He builds the argument on his theory of law as integrity.157 Integrity is a virtue of persons and communities, says Dworkin. For persons, it involves acting “in important matters . . . according to convictions that inform and shape their lives as a whole, rather than capriciously or whimsically.”158 For the state or community, it involves acting “on a single, coherent set of principles.”159 Integrity has synchronic and diachronic dimensions. It applies at any given slice of time; for the state, Dworkin refers to this as the principle of legislative integrity.160 Laws must fit together according to principle; “checkerboard solutions” “that treat people differently 69

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when no principle can justify the distinction”161 are the antithesis of integrity. Integrity also applies over time; for the state, Dworkin refers to this as the principle of adjudicative integrity,162 and it involves the familiar method of fitting current decisions with past practice. “A community of principle accepts integrity,” argues Dworkin.163 The model of a community of principle “insists that people are members of a genuine political community only when they accept that their fates are linked in the following strong way: they accept that they are governed by common principles.”164 Such a community’s “practices of group responsibility”165 meet four conditions. Members of the group must (1) “regard the group’s obligations as special, holding distinctly within the group,” (2) “accept that these responsibilities are personal: that they run directly from each member to each other member,” (3) “see these responsibilities as flowing from a more general responsibility each has of concern for the wellbeing of others in the group,” and (4) “suppose that the group’s practices show not only concern but an equal concern for all members.”166 When these conditions are met, the group’s responsibilities “count as genuine fraternal obligations,”167 or, in Dworkin’s terminology, “associative or communal obligations.”168 Although Dworkin describes the “attitudes”169 the members of a community of principle must hold—his verbs are “regard,” “accept,” “see,” and “suppose”—he says these “are not psychological conditions.”170 Rather, the “concern” the conditions require is “an interpretive property of the group’s practices of asserting and acknowledging responsibilities—these must be practices that people with the right level of concern would adopt.”171 “Interpretive property” is not an easy term to grasp. For Dworkin, interpretation is always about the interplay between fit and justification, between understanding certain points of practice and the best normative understanding of those points, as a practice.172 So although we are not looking for what “some fixed number of the actual members”173 feel or believe, we are still examining their practices, and then seeing whether those practices can be understood in their best light.174 Here, that means ascertaining whether the practices can be understood as members of a group holding the four attitudes Dworkin claims are those of a community of principle. Although Dworkin’s language is occasionally detached from practice—e.g., “people can sensibly argue in the interpretive way about what friendship really is and about what children really owe their parents in old age”175—he says he is “defending an interpretation of our own political culture, not an abstract 70

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and timeless political morality,”176 and usually is careful to be practicespecific in describing interpretation—e.g., friends must act from a conception of friendship they are “ready to recognize as vulnerable to an interpretive test, as open to the objection that this is not a plausible account of what friendship means in our culture.”177 This move from ascertaining whether certain psychological attitudes exist to interpreting a group’s practices allows Dworkin to seek to rebut the most significant charge a theory of political obligation as associative obligation must face, namely, that associative obligations exist only between people who actually know each other. Having made his argument for associative obligations between members of a community of principle, Dworkin’s rebuttal to the charge is this: “[A]ssociative communities can be larger and more anonymous than they could be if it were a necessary condition that each member love all others or even that they know them or know who they are.”178 But even if we’re not looking into the heads of the community’s members to see if they have the right sort of attitudes, the interpretive property of “concern” must be of a community’s practices, and must include how people behave with each other. So we can’t escape the criticism that associative obligation applies uneasily in the political arena. Indeed, although Dworkin seeks to move from the psychological to the interpretive, he acknowledges that the conditions “will not be met unless most members recognize and honor their obligations” and that “a group will rarely meet or long sustain [the practices of group responsibility that evidence equal concern] unless its members by and large actually feel some emotional bond with one another.”179 As I argued in the beginning of this section, a principal problem with theories of political obligation as associative obligation is that they seek to extend a model of intimate association, where people have obligations to friends and family, to the polis, where the argument is that we—in some way similarly—have fraternal or associative or communal obligations to our fellow citizens. It is hard to see the analogy, except if we are speaking metaphorically. Our obligations to friends and family are based in emotional connections to specific people. Obligations to fellow citizens, except in small towns where everyone knows everyone else, are at a level removed, and therefore can’t share the same quality of intimacy on which true associative obligations rest. So we should approach any theory of political associative obligation, Dworkin’s included, with some caution. Along these lines, I am most troubled by Dworkin’s second condition for a community of principle—that we accept the fraternal obligations as personal, 71

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i.e., as running from each member to each other member. This is precisely what makes intimate association so palpable—my obligations to my mother or sister or friend are specifically developed and honed based on expectations of son/brother/friend and on the nuances of the specific dyadic relationships. And it is precisely what is hard to imagine being true in large political communities.180 Accordingly, we might accept Dworkin’s “community personified” argument in its overall contours—the polis is a distinct entity with moral agency and responsibility and a duty of impartiality toward its members; the state’s agents, who carry out these public corporate responsibilities, must act in the name of the members of the community.181 But attributing moral agency and responsibility to the state, as the representative of the real fleshly beings in whose name it acts, is different from arguing that citizens themselves have responsibilities toward each other as citizens. With these caveats, I reach three key questions: Under Dworkin’s theory of political obligation as associative obligation, (1) do we in the United States have associative obligations to our fellow citizens? (2) do we have a duty to become a community of principle and assume its attendant obligations or do such obligations attach only if a community becomes one of principle, which it has no duty to do? and (3) what is the content of any associative obligations that may exist to our fellow citizens, and is a duty of compliance with law part of such content? (1) As an interpretation of the United States (which Law’s Empire sometimes purports to be), it seems a stretch to say we are a community of principle with practices of group responsibility understood according to the four conditions. We are a vast nation with vastly different attitudes and practices of citizenship. Part of my argument in this book is that sovereignty should be thought of as permeable rather than plenary, in part because it seems a better description of the U.S. system. To some extent, though, a more complete answer to this question must wait until we see more about the content of associative obligations in the political setting. Perhaps the content may be stated at a general enough level to satisfy both the centripetal and centrifugal aspects of the United States. My concern is that Dworkin’s arguments for integrity, of both the synchronic and diachronic sort, are a type of wishful thinking, of stitching together a coherent state-as-whole, by analogizing to true intimate associations that have integrity and by pushing a common ground understanding of the state at odds with seeing the state as a competitor for the allegiance of its 72

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citizens, some of whom will insist on the superiority of norms other than the state’s laws. (2) Most of the time, Dworkin uses language of conditionality and contingency in describing when a community of principle exists and associative obligations attach. For example: “[A] political society that accepts integrity as a political virtue thereby becomes a special form of community”182; “people are members of a genuine political community only when they accept . . . that they are governed by common principles.”183 Dworkin also says that thinking about integrity in both the personal and political realms allows us to see political obligation as “not just a matter of obeying the discrete political decisions of the community one by one, as political philosophers usually represent it. It becomes a more protestant idea: fidelity to a scheme of principle each citizen has a responsibility to identify, ultimately for himself, as his community’s scheme.”184 But one could understand this as a duty attaching to members of a community of principle, and not otherwise. We should interpret Dworkin on this point as hortatory, as urging that we develop our political communities as ones of principle, cultivating the four attitudes of concern he describes, along with the attendant associative obligations. On this understanding, we do not have a duty to become such a community. However, in his recent book Justice for Hedgehogs, Dworkin contends that it “is an important part of our own ethical responsibility, and therefore part of our moral responsibility to others, that we accept for ourselves and require of them the particular associative obligation—political obligation—that we are now considering.”185 If we take this as a clarification of his Law’s Empire discussion, perhaps Dworkin now believes we have a duty to become a community of principle. (3) For Dworkin, the content of political obligation as associative obligation is, in part, fidelity to the community’s “scheme of principle” (if the community is a “genuine political community”).186 But despite his reformulation of what “political philosophers” usually think of as political obligation, Dworkin includes law-abidingness as part of the content of political obligation, both in the quotation above and elsewhere: “political obligation—including an obligation to obey the law—is a form of associative obligation”187; “[t]he central obligation [associated with political communities] is that of general fidelity to law, the obligation political philosophy has found so problematic.”188 This narrower conception of political obligation is clearly the focus of Dworkin’s most recent treatment; he writes, “Legal and political 73

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philosophers debate whether people have a moral obligation to obey the laws of the community just because they are its laws—whether, that is, people have what is often called ‘political’ obligation.”189 Fidelity to a community’s scheme of principle, through the four attitudes of “concern,” can be satisfied in various ways. One can do one’s fair share to reciprocate for benefits accepted (and perhaps for presumptively beneficial goods received, even though they are nonexcludable, open goods); one can treat one’s fellow citizens with equal concern by, for example, refusing to push politically for factional gains that would not be justifiable on any plausible common good argument and by refusing to insist that one’s comprehensive views be accepted to justify legislation. Furthermore, one can satisfy the duty to identify for oneself what the community’s scheme of principle is in various ways, from the perspective of different comprehensive views. But none of this gets us to a general duty to obey the law. As Leslie Green maintains, Dworkin’s analogy to friendship won’t work, because fraternal obligations include “[m]utual aid and respect, perhaps, but scarcely obedience.”190 And if we shift to the parent-child analogy, which may well include obedience on standard paternalistic grounds, we can’t easily translate to the political arena, where the state will know better than “adults of mature judgment” only some of the time.191 In sum, always obeying the law is one way to exhibit reciprocity, but it’s not the only way and, even within the contours of Dworkin’s theory, not a necessary way. Dworkin’s view on this is not clear. He adopts the correlativity of political legitimacy and political obligation.192 Furthermore, he says that a “conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state,”193 and that “any conception [of law] must explain why law is legitimate authority for coercion.”194 More specifically, he argues that “a political society that accepts integrity as a political virtue thereby becomes a special form of community, special in a way that promotes its moral authority to assume and deploy a monopoly of coercive force.”195 And recall the quotations from above, about how a duty to obey the law is part of political obligation. Thus, Dworkin’s view appears to be that in a community of principle, the state may legitimately demand that its members comply with the law, and its members have a correlative obligation to do so. Yet, the language just above is that becoming a community of principle “promotes” the state’s political legitimacy, not that it ensures it. And Dworkin also says that “a state that accepts integrity as a political ideal has a better case for legitimacy 74

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than one that does not,”196 again suggesting that a community of principle may be a necessary condition for political legitimacy (and correlated obligation) but not a sufficient one. Whatever Dworkin’s view is on this, even for a Dworkinian community of principle, the case for a duty to obey the law has not been made. Reciprocity and equal concern may be met in ways short of legal obedience. And, arguably, the values Dworkin seeks to promote are better achieved through a practice that does not demand general obedience to law, but rather that views the “equal” part of “equal concern” as requiring not assimilated, common ground practices, but rather equal attention to each community member’s normative commitments, even those to sources other than the state. In Justice for Hedgehogs, Dworkin offers a somewhat different take on  the political obligation as associative obligation argument. “If people do have political obligations,” writes Dworkin, “then this must be a special case of associational obligation.”197 He states two principles of dignity: “we must respect the equal importance of human lives” and “we have a special responsibility for our own lives.”198 The second principle requires that we avoid “domination” or “subordination.”199 Sometimes we “defer to the interests, opinions, authority or well-being of others in a way that would count as subordination if it was not in some way a reciprocal deference.”200 A key aspect of associative obligation is the riskiness/vulnerability of deferring to another.201 This applies to political associations as well as to more intimate ones.202 “Coercive political organizations undermine the dignity of their members unless each accepts a reciprocal responsibility to the others to respect collective decisions.”203 We don’t have such a duty in “tribal” settings that lack the coercive government that “destroys dignity without partnership.”204 My concerns with Dworkin’s revised argument for political obligation as associative obligation vary depending on whether the “others” to whom we “defer” are state officials or our fellow citizens. (1) The principle of reciprocal deference is meant to reduce the subordination risk. This makes sense for intimate associative obligation and could ground some duties among citizens. But the state lacks the vulnerability individuals have, and it can’t be subordinated. If we move away from language of reciprocal vulnerability and subordination and focus on the state’s treating its citizens as partners205 while we defer to its laws, then we have a basis for cashing out reciprocity. But (a) we’ve now moved away from political obligation as obligation to our 75

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associates, i.e., our fellow citizens, and (b) Dworkin would now have to make a case for why general legal compliance (i.e., political obligation) is (at least part of) what citizens owe the state to play our role in the scheme of reciprocal deference. I have suggested above that this case is hard to make. (2) If the reciprocal responsibility to follow the law (the core instance of deferring at issue here) is among fellow citizens, then I have two objections. First, it is true we are vulnerable in relationships of intimate association, and that unless those vulnerabilities are in an important way reciprocal, there is a risk of subordination. But we are vulnerable to subordination in political society primarily to the state, acting coercively through police, jails, etc. The windup of the argument—preserving dignity through preventing subordination through insisting on reciprocal vulnerability among citizens—doesn’t match the pitch—reciprocally obeying the state’s laws. Second, let’s assume arguendo that the concern with reciprocal vulnerability among citizens is an analytically cogent ground for political obligation. Intimate associative relationships include vulnerability in a definitional, constitutive sense. We wouldn’t understand what it means to be a son or brother or friend without seeing the vulnerable aspect of the role. This is not necessarily true for citizens. It might be true for some—some citizens might adopt a posture of loyalty to each other, and might obey the law regularly as a way of displaying this. For such citizens, unless others obey in turn, there is a risk of nonreciprocal vulnerability and thus, as Dworkin terms it, a loss of dignity through subordination. But the argument needs another step: that we ought to, as citizens, place ourselves in such a position of potential vulnerability. This, in turn, raises questions I have been addressing throughout and will address further: does the polis need such a general practice to sustain itself (the systemic, consequentialist issue I discuss in the next section)?, and does a general practice of this sort properly account for those who subscribe to norms other than those of the state (the permeable sovereignty concern)? Dworkin’s argument at this point seems contingent; he claims that if we don’t reciprocally “accept collective decisions as obligations,” then the state would “be a tyranny that forced people to do what they had no obligation to do.”206 On this view, state legitimacy and political obligation (correlative, for Dworkin) turn on place-specific practices, which may well not exist. Perhaps Dworkin accepts this, and is willing to acknowledge the hortatory nature of the argument and its limited ability to ground political obligation in reality.207 76

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Stephen Perry develops a sympathetic reconstruction of Dworkin’s arguments. He contends that genuine political community “is an intrinsically valuable form of human association” and that “we can identify a distinctive type of obligation that arises because it is partly constitutive” of such association.208 His model is obligations constitutive of friendship, another intrinsically valuable form of human association. He mentions obligations of loyalty and mutual assistance.209 Perry adds that if equal concern obtains and we have a genuine political community, then the relationship “between [the] political community and its citizens” would be “intrinsically valuable,” and that it’s implausible this could be so unless the norms “that are partially constitutive of the relationship existed not just in a social or conventional sense, but in the stronger sense of having the normative force they purport to have. They must . . . be valid norms, which in this context means morally valid norms, and the obligations they purport to impose must be real obligations.”210 Finally, “Given the noninstrumental nature of the argument, there is no basis for picking and choosing among laws in the way that attempted instrumental justifications of a general obligation to obey almost invariably permit.”211 (Perry admits the conditions for equal concern and a genuine political community may rarely be met.)212 In addition to concerns I have similar to those mentioned regarding Dworkin—civic associative obligations don’t necessarily include general legal compliance; if the conditions for a genuine political community are hard to meet, then the theory is quite limited in real-world application—I offer three additional points. First, Perry acknowledges that equal concern doesn’t entail true justice, just a plausible conception of such.213 If that’s so, it’s not clear how a genuine political community grown via equal concern entails morally valid norms. Second, I have critiqued Dworkin (and others) for conceptions that focus on common ground arguments for overcoming disagreement; the same critique holds here, for Perry’s reliance on Dworkinian equal concern also risks favoring the centripetal. (Risks it, doesn’t necessitate it; one could develop a Dworkinian equal concern model that would view sovereignty as permeable.) Third, Perry’s argument depends on a coextensivity of law and morality I rejected in the Introduction by adopting the separability thesis, i.e., morality need not be a condition of legality. This is true even if we see the value of a legal system and political community as intrinsic, as Perry does. Such a community could have intrinsic value even if we were uncertain about the moral validity 77

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of its norms, and even if we “pick and choose” in the sense of shifting the burden of justification to the state to rule out exemptions. For Soper, the combination of good faith decisions made by officials and the underlying necessity (rationality) of the state supports the state’s minimal normative claim, that its actions are morally defensible.214 This combination is also sufficient, says Soper, for political obligation.215 Soper develops a theory of political obligation as deference, building from examples of intimate association and extending to the polis. Two of his main hypotheticals are a promise to clear a joint walkway and an (arguable) fair play duty to compensate a roommate for a humidifier the roommate purchased and that benefits both persons.216 Although Soper ultimately backs away from relying on fair play for political obligation, he does rely on the promise scenario,217 and he touts the analogies between intimate and political association.218 Soper says promise and fair play are better seen as examples of deference than of obligation.219 But his discussion is of why we might have reasons to put aside our own normative judgments about what to do and follow another’s, so whether we call it deference or obligation doesn’t make a difference for the current discussion. Grounds for deference, Soper argues, may be instrumental or intrinsic. Instrumental reasons are consequentialist—the positive or negative effect on the other from my deferring or failing to do so.220 Soper maintains that consequentialist reasons are insufficient to support political obligation as deference.221 Intrinsic reasons may be objective or subjective. When deference “serves as a sign of respect for a relationship that is in fact valuable,” it is supported by an objective intrinsic ground.222 When deference is “required to show self-respect,” it is supported by a subjective intrinsic ground.223 Although the objective intrinsic ground is likely to be present in intimate associations only,224 the subjective intrinsic ground can support deference for both intimate and political association.225 Deference as a means of showing self-respect (as well as, by deferring, respect for the other) is central to Soper’s argument. It is based in core Kantian theory: “I would expect no less if I were in charge.”226 Finally, Soper argues that deference promotes dialogue, discussion.227 In the relevant settings, we have a duty, an obligation, to defer, while such dialogue continues.228 Let’s first examine the fair play setting. The focus is on the need for action under conditions of disagreement (or potential disagreement).229 There is a need for finality.230 Using Soper’s example, if your roommate 78

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goes ahead and buys the needed humidifier that will benefit you both, you might believe the benefit is worth the cost, but you might disagree “about the principle of distribution itself that underlies the fair play idea.”231 That is, you might disagree about whether sharing is the right rule or whether whoever acted should be stuck with the costs.232 In such a situation, why might one “have a duty to defer to the normative views of others about how to distribute burdens and benefits”?233 The answer—with a clear parallel to the political obligation setting, although Soper ultimately steps back from the analogy—is that something needed to be done and it was done in good faith. To insist on one’s own principles after the other has acted “fosters competition and antagonism,” whereas “[d]eference fosters a caring community.”234 The case for deference here cedes much “to the existing norm”;235 it trades off of “the normative force of the actual,” which suggests “that an additional element of disharmony or discord is created when one confronts a fait accompli that has come about through nobody’s fault.”236 Soper acknowledges one must defend the premise that it’s valuable to promote a caring over a competitive community.237 For this reason, and for other reasons that make fair play an inadequate basis for political obligation (discussed earlier in this chapter), Soper concedes the argument for fair play as deference in the intimate setting can’t easily be extended to the political one.238 Soper also examines why a promisor might have an obligation to a promisee even if we stipulate that no harm would follow from breach of promise.239 The answer, says Soper, is that if a dispute arises regarding the promise, then “[s]omebody’s going to have to get his way,”240 and we should view a promise as “allocating the right to decide”241 the dispute. If circumstances were flipped, the promisor would want respect for his good faith resolution of the dispute, and therefore he should give the same respect to the promisee’s resolution by deferring to it.242 In other words, the core Kantian principle is at work: the promisor has a subjective intrinsic reason for deferring;243 “[t]he idea for deference draws . . . on the idea that respecting the wishes of the promisee is a means of respecting one’s own principles— doing exactly what one would expect if the situation were reversed.”244 Here, Soper endorses an extension from the intimate association setting (or perhaps better put, for promise, a setting in which the promisor and promisee at least have some sort of interaction or relationship) to the political setting. In both cases, a decision must be made, and deference to a good faith decision—by the promisee or by the legislator (or other government 79

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official)—is a way of respecting both the other and oneself, for it is the respect one would want were the roles reversed.245 Says Soper, “the difficulties of explaining why and how promises obligate are almost exact analogies of the difficulties that attend attempts to defend political obligation.”246 First, I challenge the extension of the “ethics of deference” model to the political setting; next, I suggest that even if we accept the extension, the model can’t sufficiently ground political obligation; finally, I raise some concerns with the model itself, concerns that add to the case against its usefulness in the political setting. (1) As set forth at the beginning of this section, and in the discussion of Dworkin’s work, we should be wary of extending any paradigm of intimate association to the political arena. Yielding to one’s relative, friend, or neighbor—deferring, that is; letting the other decide—is often constitutive of the relationship in question. This is clearly so for fair play hypotheticals; we’re all familiar with situations such as the one in which a friend makes a decision benefiting the twosome. In such a setting, to insist on one’s own way is often churlish and behavior the actor would not want thrown back in his direction. The promise setting also involves people who have a direct relationship of some sort, whether intimate or more arms-length. Ceding to the promisee’s understanding of the promise might promote the relationship and allow one to respect the other and oneself. Soper agrees that the fair play scenario can’t translate to political obligation, but says otherwise for the promise paradigm. As Soper acknowledges, one immediate problem is that we can’t realistically ground political obligation in actual promises (or in consent or contract).247 Soper’s use of the promise paradigm for political obligation is, instead, by analogy: just as the practice of promising is rational/needed, and the good faith interpretation of the promise by the promisee deserves respect, so is the existence of the state rational/needed, and the good faith actions by state officials deserve respect.248 This is where distinguishing objective from subjective intrinsic reasons has its payoff. Showing a lack of respect for the promisee might not easily translate to showing a lack of respect for the state and its officials. But the lack of respect as lack of respect for self exists in both settings. Soper says: “The move from the personal context to the impersonal confrontation with the state requires deference—not to one’s neighbor or friend but to a legislator who is doing exactly the job I would do if I were in his or her place: expecting compliance with norms enacted in good faith for the good of the community.”249 80

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That sentence is as good a summary of Soper’s argument as there is. But the subjective intrinsic reason doesn’t apply so easily in the political setting. For most of us, although respecting the other as one would respect oneself is constitutive of intimate associations and one-to-one promise relationships, respecting the state or a state official as one would respect oneself is not constitutive of citizenship. Or at least not for many of us, or at least not for some of us. And that means the argument isn’t general enough to ground political obligation. Soper seems to acknowledge this in his initial discussion of promising and deference, when he states that subjective intrinsic reasons will work only for those who view the deontic conception of promise as valuable.250 Most of us do, in the one-to-one setting; how many of us do in the citizenship setting is hard to know, but the number surely isn’t large enough to ground political obligation on respect for official as self. (2) Even if we assume arguendo that one has an obligation to respect state officials acting in good faith, based on the argument from subjective intrinsic reasons developed in the promise setting, a duty to obey the law doesn’t follow. There are other ways of showing respect. Not becoming a political anarchist is one; supporting the state in other ways, perhaps by obeying key laws of coordination and security, is another. It’s never clear from Soper’s argument why political obligation in its standard, general sense—or, on his terms, deference to the state’s good faith decisions (generally)—is entailed by his argument for respect. One of his themes is that deference “furthers the chance for dialogue.”251 Not to defer is to “ignore the promisee’s claim.”252 The duty to defer promotes dialogue and discussion.253 He ends the book with this exhortation: “The argument for deference is an argument about duty—a claim about the obligation to defer, while dialogue continues and the jury remains out on the truth.”254 But respect can be shown through careful attention to the views of the other, and through ensuing dialogue, rather than through deferring to the other. There’s a broad middle ground of listening between the extremes of deference and ignoring. Soper’s argument works against the political anarchist or against the cavalier civil disobedient or against the unthinking person insistent on getting his way. It doesn’t work against the citizen who from a deeply held and considered normative perspective wants to live by her own lights, is open to dialogue with government about how to accommodate such needs (and perhaps about how to adjust her norms to meet important state ends), but finds yielding to the state the antithesis of self-respect. 81

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(3) Soper’s starting point is a familiar and correct one: we live under conditions of disagreement and uncertainty as to what’s just.255 Or at least we understand that insisting on our own not uncertain views of justice is an impossibility in a pluralistic society. Yet, Soper’s argument for deference gives all gains to the first mover (in the fair play setting) or to the majority (in the political setting) or to what’s settled or status quo (in the promise and political settings). Recall that Soper’s deference argument builds in part from “the normative force of the actual” and the “fait accompli that has come about through nobody’s fault.”256 Although Soper stops short of extending the fair play argument to political obligation, and sees that his contentions may seem to give power to the first mover, he nonetheless lauds deference, supports the cooperative community he claims follows, and criticizes what he deems the alternative competitive community, at least in the intimate association setting.257 I have four responses, offered as a critique of the underlying deference theory and of a possible extension to political obligation (whether or not supported by Soper). First, to some extent the deference argument is consequentialist, promoting the gains from settlement. As such, it is subject to consequentialist critiques, for example, that not all disagreements need uniform resolution. I offer a set of such critiques in the last section of this chapter. Second, if we are starting from a baseline of disagreement and uncertainty, why not split the costs of uncertainty, of error? Yielding to the first mover or the majority or what seems settled over time appears arbitrary, or not fully respectful of the other side of the disagreement/uncertainty line—the dissent, or the minorities who will never have political power. The first mover/status quo to which we are yielding might be the product of raw power or the entrenchment of dominant groups; the argument for deference to such power has problems similar to the argument for deference to precedent based in Burkean theory, which I discuss in Chapter 3. Also, what seems settled might be the result of sheeplike qualities rather than a reflection of wisdom. Moreover, claiming that one resisting the first mover is thereby fostering a competitive rather than caring community fails to see that the first mover might have been the aggressor, staking out territory in a contested matter and then dubbing dissenters, those who fail to defer, as whiny complainers. But the whiny complainers might be principled whistle-blowers, seeking to promote a caring, cooperative community through stopping more powerful actors from planting their flags quickly and then asking for deference from the rest. 82

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Third, these difficulties aren’t alleviated by resort to the seemingly neutral Kantian argument, “I would expect no less if I were in charge.”258 This position doesn’t reflect the reality, in the political setting, of the established state that confronts us. There’s no real, substantive neutrality when a citizen is asked to defer to the state if officials are acting in good faith. Instead, we are confronted with extant, established precincts of power, and then asked to conceive of the situation as a kind of game in which we constantly trade places. Fourth, the argument for deference to first movers and settled, majoritarian practice neglects the costs to those who adhere to sources of normative authority other than the state. The Kantian argument for mutual respect would better be fleshed out through seeing all sources of sovereignty as equally viable, and needing accommodation, rather than through setting a baseline of “the actual”259 and running the argument from there. Gilbert develops a theory of political obligation based in a plural subject’s jointly committing to uphold the political institutions of the society.260 Although she recognizes the standard formulation of the political obligation question as whether one is “obligated to obey the commands of one’s country simply because it is one’s country,”261 she reformulates “obey the commands” as “uphold the political institutions,”262 which includes obedience and more, such as support and nonbetrayal. Gilbert’s theory has close affinities with actual contract theory—although she is careful to show how hers differs—but I include it in this section because hers is best seen as a theory about political association and because it is based on an account of intimate association. Perhaps it is best to see her theory as a hybrid of agent-centered and status-based (although to the extent it is the latter, not in social roles alone).263 Gilbert’s theory is conditional: political obligation attaches only if members of a political society have jointly committed to uphold the political institutions. So her theory is similar to Dworkin’s in this way—his theory applies only if members of the political society can be interpreted as following the appropriate practices of equal concern—and is different from Soper’s, whose argument for political obligation from respect doesn’t turn on any particular attitudes or commitments of the citizens. Before developing her argument about the joint commitment of a plural subject, Gilbert maintains that coerced contracts are prima facie binding. This argument is meant to handle what Gilbert calls the “no-obligation 83

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objection”264 to actual contract theory of political obligation, namely, that a contract to uphold political institutions is not binding because the circumstances of membership in a political society are too coercive—the government runs the jails and it’s too hard to emigrate. Gilbert quotes H. A. Prichard: “Once call some act a promise and all question of whether there is an obligation to do it seems to have vanished.”265 Primarily on this basis, and on the assurance she’s discussing prima facie obligations only and not whether such obligations may be overridden, Gilbert concludes that we have a prima facie duty to comply with coerced contracts, and extends the argument to coerced promises.266 Since “[e]ven one who is coerced into entering an agreement still has obligations under that agreement,”267 Gilbert maintains, we still have political obligations under actual contract theory even if such obligations aren’t voluntarily assumed, so long as they are “assumed intentionally, at some possibly quite low level of awareness.”268 For Gilbert, the payoff is when she turns to her theory of joint commitment, concluding, “That one had little choice but to participate in a given political society may not be enough to allow one, morally speaking, to ignore the commitments one has thereby taken upon oneself.”269 Gilbert begins her account of joint commitment by a plural subject with an example from a small social group—people walking together.270 If this is a joint activity, it gives the participants “special standing to rebuke and make demands”;271 it gives them correlative rights and obligations.272 A contract isn’t needed for such joint activity.273 All that is needed is “mutual expression of readiness to engage in the joint activity” and that such expression be “common knowledge between the parties.”274 From this basis, Gilbert argues that parties create joint commitments through “a kind of expressive behaviour” that is “common knowledge among the parties.”275 The mutual expression of readiness means that “entry into a joint commitment is at some level intentional.”276 The basic case involves expressions of readiness to do a specific thing as a body.277 The derived case—“particularly important”—is a joint commitment without mutual expression of readiness to do a specific thing as a body.278 This is primarily about delegation; using her example of joint commitment to espouse a certain goal as a body, Gilbert writes that in the derived case, “Each of the parties has expressed her personal readiness to be jointly committed to espousing whatever goal is specified by the operations of a specified mechanism.”279 When one enters a joint commit84

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ment, one allows her will to be bound by the creator of the commitment, i.e., by the group.280 According to Gilbert, parties who are jointly committed to doing something (broadly understood) as a body constitute a plural subject.281 She acknowledges that this concept “consciously echo[es] Rousseau.”282 Linking her two concepts, Gilbert explains, “a plural subject can be created by expressions of readiness to be jointly committed which do not, at the same time, constitute an agreement.”283 Plural subjects may be formed by “a process that may be considerably extended in time. During such a process it gradually becomes clear to all that everyone is ready jointly to commit in a certain way.”284 People may “come to understand that they are jointly committed to upholding as a body a certain social practice.”285 A large population can be a jointly committed plural subject if the two conditions mentioned earlier are met in this setting: “all members of the population must have expressed their readiness to participate in the relevant joint commitment with all other members of the population,” and “this must be population common knowledge.”286 Members of even a large political society may be, as a plural subject, jointly committed to upholding the society’s political institutions.287 As she summarizes later, her “theory argues that . . . a political society is constituted by an underlying joint commitment to accept certain rules, rules that count intuitively as political institutions.”288 Recall that on Gilbert’s theory one may satisfy the conditions for such a joint commitment “without prior deliberation or decision, and if one has deliberated, one may have had little choice but to incur [political obligations].”289 To show how her theory works in the setting of a large political society, Gilbert considers an interpretive question, how do we use words like “we” and “our” when talking about the nation of which we are members? First she makes this claim: “[S]entences of the form ‘We . . .’ where the blank is filled with any broadly speaking psychological predicate,” and unless qualified to mean ‘each of us separately,’ “are best interpreted as referring to a plural subject—‘us.’ ”290 Then she gives examples: “[S]uppose Clare is a United States citizen whose language is English. Does she say that ‘We are at war’ when the United States is at war? Does she refer to United States laws as ‘our laws’? Does she refer to ‘our constitution’ when she has in mind the Constitution of the United States?”291 If Clare uses “we” and “our” in these ways, then she “implies that she is party to a joint commitment that lies at the foundation of a certain collective agent,”292 contends 85

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Gilbert. It is “implausible,” she adds, that by “our laws” Clare means “ ‘those laws that I and other so-called Americans are coerced into following.’ ”293 Gilbert is careful to say that these are always interpretive questions about the usage and practice in a given political society.294 Gilbert offers a carefully wrought account of political obligation based in joint commitment, but, as with the other accounts treated in this section, it moves from correct observations about how intimate association works and asks us to believe that political association works in the same way (or in much the same way). My main objection is that citizens usually do not constitute a plural subject jointly committed to upholding the state in the way Gilbert argues. Before turning to that matter, I take issue with her argument that coerced contracts (and promises) are prima facie binding. Even though Gilbert says that hers is not an actual contract theory of political obligation, and that it is “in an important sense ‘non-voluntarist,’ ”295 her conception of joint commitment still requires some level of intentionality, from the mutual expression of readiness to be committed through behavior that is common knowledge to the relevant parties. Concerned that even this level of intentionality might not be met if we consider the circumstances of membership in political society coercive, Gilbert develops her case for coerced contracts as (prima facie) binding and extends this to the setting of joint commitments. But (1) the argument that coerced contracts are even prima facie binding is weak, and (2) furthermore, it appears unnecessary for Gilbert’s argument. Moreover, (3) one can accept the stickiness of the role of citizen and seek to trace an alternate route to political obligation through associative obligation. (1) Gilbert relies heavily on the quotation from Prichard that we understand there to be an obligation to perform a promise. This might be correct as stated; but nothing about the quotation from Prichard suggests he meant that conclusion to apply to coerced promises. If a robber puts a gun to your head and demands, as a condition for not killing you, that you promise not to call the cops, duress renders the promise void at the outset. There’s no good reason in moral theory to deem such a promise prima facie binding and then say it may be overridden. The binding weight would be so slight as to render the entire discussion a kind of game, and an extension to the political setting would render any parallel political obligation too weak to be of interest in determining what sort of duties we owe to upholding the state. Moreover, and perhaps this is an interpretive point about which Gilbert 86

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and I disagree, ordinary people don’t think of promises and contracts made under clearly coercive conditions as binding in any way. To be sure, we’re unclear in some cases whether sufficient duress exists to render a contract unenforceable, but that’s a different matter. Gilbert’s claim is that even clearly coerced promises and contracts are prima facie binding. (2) The problem could have been avoided; Gilbert doesn’t need this argument to set up her theory of joint commitment by a plural subject. Although she says her theory is in an important way nonvoluntarist, in another important way, it is voluntarist (as Gilbert acknowledges when she says that entry into a joint commitment “is at some level intentional”).296 Each participant has to have knowledge of the relevant expressions of joint commitment and has to engage in such expression. Although Gilbert says that one may have had little choice but to incur political obligations, her theory to some extent belies this claim. For hers is not a theory that ropes in every member of a certain type of society (say, e.g., a society we can interpret as having adopted the appropriate attitudes of equal concern, as per Dworkin). Even if one accepts her interpretation of how people use the words “we” and “our” in the political setting (more on this in a moment), people don’t have to use the words in the way Gilbert suggests. They could make it clear they’re not using the words that way, and would seemingly not be part of the plural subject that is jointly committed. I write “seemingly” because Gilbert suggests otherwise; she says a theory of political obligation must show that all who are members are obligated,297 and her discussion of the development of a plural subject over time suggests that there comes a point at which being a member of a certain political society locks one in to a joint commitment. Yet, Gilbert’s language at other moments remains conditional, and the best interpretation of her theory is that it is a conditional one: if one is aware of certain expressions of readiness to be jointly committed, then one may choose whether or not to make such expressions.298 That would be true even under standard coercive conditions of political society (the state has the jails; emigration is difficult). Thus, we don’t need the argument that even coercive contracts (and promises) bind. (3) Finally, hybrid theories such as Dworkin’s and Soper’s support political obligation despite role stickiness and the (arguably) coerced quality of membership in a political society. The state is better than the state of nature, and thus there’s a systemic stability aspect to the argument. With at least some other normative condition met—for Dworkin, social attitudes 87

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of equal concern; for Soper, good faith actions by officials—political obligation follows. It’s no defense that one is born into the role of member and the government has the official monopoly on jails and it’s hard to emigrate. I argued above that such theories cannot successfully ground political obligation, but there’s no conceptual reason for a theory of political obligation to require even a low level of voluntary choice by the subjects. Return now to Gilbert. If I am wrong in interpreting her theory as permitting people to detach themselves from an otherwise extant political joint commitment, and if once such a commitment exists all members of the polis are thereby bound, then Gilbert does need to deal with the absence of voluntariness. She is better off handling this by showing how in the political setting a plural subject’s jointly committing properly binds even those who don’t consider themselves part of the “we,” not because coerced contracts (and by extension joint commitments) are binding, but for other systemic reasons such as those offered by Dworkin and Soper. I now return to Gilbert’s core argument: the members of a large political society (might) constitute a plural subject jointly committed to upholding that society’s political institutions (which includes a duty to obey the law). It’s easy to see how members of small groups become jointly committed as a plural subject. Whether it’s walking together or sitting down for a card game or getting together for a picnic and softball game in the park, we’re familiar with how such groups, and commitments, form. Sometimes they’re through prior agreement, but, as Gilbert well explains, sometimes they’re not. The key, though, is that there be commonly understood signals of “readiness to engage in the joint activity” and that the members engage in these appropriate “mutual expressions” (and then that there is common knowledge that such expressions have been made).299 There are, thus, elements of knowledge and volition here—knowledge of which signals count as readiness to engage in joint activity, and the power to choose whether to be part of such mutual signal-exchanging (and thus joint committing). Indeed, Gilbert explains that her theory escapes the is-ought problem of role obligation theories because of the normativity that flows from joint commitments’ being “of our own making.”300 Gilbert extends her theory to large populations, which can be a plural subject in the same way: all members express readiness to participate in the joint commitment, and common knowledge exists of what such expression entails.301 This works conceptually, but it’s hard to see how it works in reality. Despite Gilbert’s protestation that her theory “is in an important sense 88

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‘non-voluntarist,’ ”302 the conditions she develops for plural subjects’ jointly committing are fairly tight, applying only with appropriate common knowledge and mutual expression. Although this is an interpretive disagreement,303 it’s unlikely that all (or even most) members of a nation such as the United States have jointly committed as a plural subject to upholding our political institutions (including legal obedience). One problem is that even if all (or most) of us use “we” in the plural subject fashion Gilbert describes, what “we” are committed to might vary from person to person, and in any event fall short of commitment to across-the-board legal obedience. And many might use “we” in an aspirational sense, seeking to represent a plural subject, not so much as a commitment but as a hope. I also challenge Gilbert’s interpretation of what “we” and “our” mean in “we are at war” and “our Constitution.” Gilbert seems to think the speaker either is party to a joint commitment or believes she and her fellow citizens are coerced. But there’s a third option: we are the citizens who live and build families here, pay taxes, support much of what our nation stands for, but not everything, and while remaining patriotic keep a wary eye out for assertions of state power that misunderstand our nation’s heritage or that claim shared goals and attitudes where recognition of pluralism would be more appropriate. For many, the only real joint commitments are at a smaller level—to family, friends, colleagues. We should also be careful about arguments that locate obligation in gradual development over time. When Gilbert writes that plural subjects may be formed in “a process that may be considerably extended in time,” during which “it gradually becomes clear to all that everyone is ready jointly to commit in a certain way,”304 a warning sign “Metaphor alert! Nation under construction!” should be flashing. The argument that a plural subject’s jointly committing happens not for each person consciously while she’s alive but rather over many lifetimes is best seen as a hortatory way of constructing a polis, or as an interpretive practice, and not as a report of a mutual expression of joint commitment carrying normative clout. In Chapter 3, I say more about how diachronic commitment arguments should be viewed as attempts at construction rather than as sound theories of obligation. At the end of her book, Gilbert asks, “What of those who live among those jointly committed to uphold a particular set of political institutions, yet are not themselves party to the joint commitment?”305 She refers to such people as “self-styled anarchists—the ‘hold-outs,’ ”306 and offers a set of 89

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questions for further exploration. My argument throughout has been that those who adhere to sources of normative authority other than the state’s laws, either always or at various times, are (to use Gilbert’s term) “holdouts” (and not necessarily anarchistic ones). One can’t relegate this concern to a few people we can somehow cordon off.307 I have been discussing whether we can ground political obligation in associative obligation, and have suggested several reasons why we cannot. I close this section by discussing a few related matters: must citizens accept either primary rules (the laws governing their behavior) or secondary rules308 (the systemic rules of recognition, change, and adjudication) for a system to be a legal one? if citizens do accept the law, what does this entail regarding either their attitude about political obligation or their actual political obligation? and, as a predicate to these two questions, what is “acceptance” in this setting? These questions are related to the foregoing exploration of associative obligation in their focus on citizen attitudes. The focus in the associative obligation discussion was (primarily) on attitudes citizens have toward their fellow citizens, while the focus in the matters I cover here is on attitudes citizens have toward rules of the political society, some of which are candidates for being considered laws of the society. In both settings, though, we are exploring citizen attitudes on matters related to political and legal obligation as part of the “loyalty” option of the exit/ voice/loyalty trio of obligation/legitimation arguments. (1) Let’s first look at what H. L. A. Hart meant by “acceptance.” For Hart, rule acceptance involves taking the “internal point of view.”309 Those who do so use rules as “guides” and treat the violation of a rule as a “reason for hostility.”310 Hart described a tension between those who “accept and voluntarily co-operate in maintaining the rules” and those who “reject the rules and attend to them only from the external point of view as a sign of possible punishment.”311 He explained, using a different juxtaposition, that one could be concerned with rules “merely as an observer who does not himself accept them” or “as a member of the group which accepts and uses them as guides to conduct.”312 Using an example of acceptance of primary rules by officials, Hart wrote, “The judge, in punishing, takes the rule as his guide and the breach of the rule as his reason and justification for punishing the offender.”313 When we have acceptance of rules, “deviation from the standard is generally accepted as a good reason for making [criticism],” and such criticism “is regarded as legitimate or justified in this 90

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sense.”314 Hart added, “[Acceptance] consists in the standing disposition of individuals to take [patterns of conduct regularly followed by most members of the group] both as guides to their own future conduct and as standards of criticism which may legitimate demands and various forms of pressure for conformity.”315 (2) For citizens who accept law as setting guidance rules in this fashion, neither a belief that they have a moral duty to obey the law nor actual political obligation follows, as is clear from further exploration of Hart’s writing. The connection between citizen belief that political obligation holds and actual political obligation could work like this: The theory of political obligation that would be in play is a voluntarist one; an attitude of loyalty to the legal system that includes belief in the system’s moral legitimacy and correlatively in one’s moral duty to obey the law would be sufficient to ground one’s actual moral duty to obey the law. Acceptance here would be tantamount to consent. For present purposes, the key interpretive challenge is to understand what Hart meant in this setting by words such as “reason,” “justification,” and “legitimate.” These are words familiar from moral and political theory, and one could be forgiven for thinking Hart meant that accepting rules entails deeming the rules (in our case, the state’s laws) morally legitimate and, correlatively, accepting a moral duty to obey them. Hart did not take this view, however, writing instead that those who “accept the authority of a legal system” and who thereby “look upon it from the internal point of view . . . are not thereby committed to a moral judgment that it is morally right to do what the law requires.”316 Moreover, said Hart, some rules “establishing duties or providing reasons for action . . . may be accepted simply out of deference to tradition or the wish to identify with others or in the belief that society knows best what is to the advantage of individuals. These attitudes may coexist with a more or less vivid realization that the rules are morally objectionable.”317 As Stephen Perry puts it, Hart advanced a noncognitivist view of normativity. That is, for Hart, acceptance requires having “an attitude that a standard is binding,” i.e., it requires “adopt[ing] an attitude of endorsement toward the law’s requirements.”318 To the contrary, under a cognitivist view of normativity, acceptance requires one to “believe that the law has [legitimate] authority.”319 What, then, does it mean to say that acceptance involves viewing the state as making (as Scott Shapiro describes Hart) “legitimate demands of conduct” and as “recogniz[ing] the sovereign’s right to rule”?320 There are 91

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a few possibilities. One is that we adopt a thin view of political legitimacy, equating it with the basal conditions for the existence of a legal system, and rejecting correlativity with political obligation. As discussed in the Introduction, this would require institutionality (persistence plus continuity) and the state’s adherence to at least core notice-rule of law values. A second (which may coexist with the first) is that we’re using “legitimate” and similar normatively inflected terms in a mostly descriptive sense here, to show how some citizens recognize the existence of the rules followed by themselves and their compatriots and (for various reasons) accept the salience of such rules and the desirability of following them. Moreover, citizens who adopt the internal point of view may use normative language in addressing the rights and duties the law imposes. But to deem the state’s demands “legitimate” and to see the law as a “justification” for action, in the way Hart used these terms in this setting, entails believing neither that the state is morally justified in demanding we obey the law (what I have called the “justification” conception of political legitimacy) nor that we have a moral duty to do so. We can reach a similar conclusion from Hart’s use of “normative,” in this setting, to capture the attitude of acceptance that citizens have in adopting the internal point of view and the language they use. When “[l]aws function . . . as accepted legal standards of behaviour,” individuals “not only do with tolerable regularity what the law requires of them, but they look upon it as a legal standard of conduct, refer to it in criticizing others, or in justifying demands, and in admitting criticism and demands made by others.”321 Hart referred to such acceptance as “using legal rules in this normative way.”322 Individuals who exhibit the internal point of view “continuously express in normative terms their shared acceptance of the law as a guide to conduct.”323 “Normative” thus captures the evaluative sense that accepting citizens have toward behavior under law and, borrowing from morality, the language of “ought” and “should.” Still, this is not the same as believing that one has a moral duty to obey the law or that the state is morally justified in making such a demand. This helps explain what Benjamin Zipursky means when, in discussing Hart, he writes that when a citizen accepts a legal rule regarding the conduct in question the citizen sees herself as being “under an obligation,” “as being held up to a standard of what one is really supposed to do,”324 and when (with John Goldberg) he writes that Hart’s approach allows us to see a body of law as a “body of genuine duties.”325 This can’t mean that when 92

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one adopts the internal point of view and accepts law as guiding and binding one thereby has accepted the moral validity of law. Zipursky says as much.326 So what is “genuine” and what one is “really supposed to do” have to be seen as true within the specific legal system the citizen has accepted, and in this sense the terms are again descriptive, or normative only in the sense of reporting one’s adherence to norms of the community or the borrowing of moral terminology in making statements about legal duties. Again, Zipursky appears to agree, when he writes, “the character of the legal directive imposing the duty is injunctive and normative, but the criteria for what counts as a legal norm are artificial and conventionalistic, and not essentially moral.”327 So although it’s true that law uses language similar to morality—“obligation,” “ought,” and the like—we should remain vigilant of the borrowing that law is doing, and the shifting from what one might call the fraught to the unfraught ought.328 Some citizens might go further, and their attitudes of acceptance might morph into respect and loyalty of a sort giving rise to moral obligation. But that will not follow necessarily from acceptance of the law. As Joseph Raz explains, respect for law—which “arises out of a sense of identifying with or belonging to the community”—grounds only a “quasi-voluntary obligation.” It cannot “establish the existence of a general obligation to obey the law. For good or ill there are many who do not feel this way about their country, and many more who do not feel like this about its formal legal organization.”329 These bonds are less prevalent today, says Raz, because “the societies we live in are less homogeneous, more troubled about their own identity, and about the role of government and the law in the social fabric.”330 (3) Hart argued that only officials need accept rules (and only secondary rules) for a legal system to exist.331 Although as an empirical, rather than conceptual, matter, a legal system can exist only with a sufficient level of voluntary, noncoerced citizen compliance with the primary rules that govern their conduct,332 Hart maintained that citizens need not accept such rules (or secondary rules) for a legal system to exist as a conceptual matter. But if citizens view the law only through a Holmesian “bad man” lens333— what must I do to avoid official penalties?—one might argue that it’s hard to call the system a legal one. Maybe, therefore, for a legal system to exist, citizens must accept the law as guiding their behavior. Yet, Hart sensibly rejected this extension. Why should it matter to the conceptual question of how to distinguish law as a system from morality and also from the gunmanwrit-large whether citizens treat the rules in question as obligations or 93

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instead try to stay out of jail? If we have persistence plus continuity, and therefore institutionality, and official acceptance (in a meaningful sense) of secondary rules (the determination of which is a matter of social fact)—and we can add minimal notice-rule of law conditions—then we don’t merely have morality (ruling out a strong form of natural law), and we no longer have the gunman-writ-large. The system of primary rules made, adjudicated, and altered pursuant to secondary rules looks like a legal one, whether or not citizens accept the rules in question.334 Systemic Stability Systemic, consequentialist arguments for political obligation begin with the proposition that we do better living in political society than in the state of nature.335 The state provides security—and attendant freedoms— unavailable in the stateless landscape. Adherence to a law-following norm is necessary to achieve the valuable ends a state provides. This gives us a reason to follow the law, although we might add that the state must meet minimal criteria of justness. I have been asking whether there is a moral duty to obey the law and have explained that by “moral” I mean, broadly speaking, any ground for what we ought to do that is not merely descriptive, which includes reasons for action based in consequentialist analysis. Furthermore, recall that my argument for the correlativity of political legitimacy and political obligation turned on deeming the same reasons relevant to both the state and the subject; if there’s a valid systemic argument justifying the state’s demand for general obedience to law, then that same argument supports the political obligation of the subject, and vice versa. I divide the consequentialist terrain into three parts: the argument against self-interest, the argument from and settlement, and the argument that we do better by placing ourselves in the hands of the state to make judgments of right action. I set forth the first two types of argument and demonstrate their flaws, and then I describe and evaluate the third argument, which is based on a conception of legitimate authority offered by Joseph Raz. The argument against self-interest. In the state of nature, it is every man for himself. That provides a kind of autonomy, but it is a caricature, because for all the unfettered freedom, the price in terms of security, constant vigilance, and the like is so high that freedom becomes a joke.336 It is too fragile. With the move to political society comes the trade of unregulated liberty for the restrictions of law and the government’s police. 94

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But simultaneously come security, the end of constant vigilance, and thus a more secure and realistic freedom, within bounds. And while this may seem a mere fiction from the state of nature, social contract theorists, it is a fair replica of life in a liberal democracy. Indeed we trade unregulated liberty and attendant security costs for a different form of freedom, simultaneously less and more robust than the freedom of the wilds. In political society, law is the common ground of liberty, and universal obedience to law is the ultimate insurance against a retreat to a war of all against all. Political obligation is, on this argument, a check against self-interest.337 To survive, the system needs uniform law-abidingness, and since the system is beneficial to each of us, each of us has a reason to obey the law. Because isolated acts of disobedience often impose low or nonexistent costs, the argument against self-interest sometimes relies on other claims. First, we should generalize, and ask not whether isolated acts of disobedience will impose serious costs, but whether if everyone behaved the same way the system could survive. Second, not a hypothetical question, but a causal supposition: if citizens start disobeying the law, this will become known and disobedience will spread, like a contagion, perhaps leading to systemic collapse; disobedience might weaken the agent’s respect for law, as well.338 Third, we should ask whether the political society is better off if we all follow a rule of law-abidingness. Fourth, citizens might argue that they can be trusted to disobey only when benefits outweigh costs, but citizens will make errors in these calculations.339 The argument from settlement.340 While the argument against self-interest focuses on warding off the vices of the state of nature we have left behind, the argument from settlement focuses on the virtues of the political society we have adopted. First, some issues will admit of many possible legal resolutions. While it is important to get things right, it may be more important to resolve matters, especially in a heterogeneous society with competing conceptions of the just and the good. A norm of obeying the law helps ensure that matters become settled rather than be up-for-grabs. As Jeremy Waldron makes the case, to give equal weight to each citizen and achieve these settlement virtues, we should have a strong rule of deference to legislative outcomes.341 Second, some matters do not admit of a right or wrong answer. The paradigm case is driving on the right (or left) side of the road. Adherence to authoritative norms is necessary to prevent chaos, i.e., to achieve coordination.342 95

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Third, whereas the foregoing arguments are proceduralist and not about achieving true or best answers, a related argument, associated with Burke, maintains that law—perhaps not all, but much law, especially common law—represents the traditions of the people, which, over time, work their way toward true or best answers. Rethinking and challenging flies in the face of this epistemic claim. A related argument is based in a view of autonomy tied to authority, associated with Aquinas. As Grenville Wall puts it, “The recognition of authority is necessarily connected with the existence of public rule-governed activities and practices and public criteria of correctness in judgement. But it is precisely the existence of such criteria that makes judgement, and therefore autonomy, possible.”343 Together, these arguments create a powerful case for political obligation and the correlated legitimacy of the state. The risk that individual citizens will otherwise act to their own advantage (whether self-consciously or not), the systemic benefits from clear, stable, coordinated rules, and the value of adhering to rules worked through over time combine to make these arguments, though of the consequentialist variety, strong ones to support a moral duty to obey the law in the circumstances of the modern state. Strong, but insufficient. Assessing the argument against self-interest. Let’s first consider act utilitarian arguments.344 The most basic objection is that whether disobedience results in (net) costs will vary with the law and/or with the circumstances, and therefore such arguments can’t ground a properly general theory of political obligation. Individual acts of legal disobedience sometimes impose small or no costs. Examples include minor violations of rules of the road with no possibility of harm; possession of an unregistered handgun one keeps safely at home and would use for self-defense situations only; and recreational drug uses by a consenting adult without distribution. I appreciate the last example involves contested views as to harm. If we are to discuss political obligation under an act utilitarian theory in a non-question-begging way, however, we may evaluate the state’s conclusions regarding harm, rather than defer to them. I also appreciate that the middle example involves risk regulation and that focusing on specific examples of nonrisky behavior may seem to undercut the law’s more general position. If one wishes to defend political obligation through act utilitarian reasoning, however, one must account for nonharm-causing instances of the regulated behavior. 96

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Furthermore, sometimes matters can be improved by disobeying. Examples include failing to follow a health and safety rule because one’s expertise permits one to make a healthier or safer decision; necessity situations (such as speeding to get a sick person to a hospital) where the law might eventually recognize a defense, but where speeding represents a prima facie violation of the law; and where a law passed in a prior generation failed to include an exception that current circumstances render optimal in terms of consequences. Things don’t improve if we shift the argument to “What if everyone did that?”345 We have to ask, “Did what, precisely?” We need to know the right level of generality at which to pitch the consequentialist calculus. What if everyone . . . disobeyed this exact law at this exact place at this exact time (silly)? disobeyed this exact law at any place at any time (the answer might depend on the circumstances, some acts of disobedience might result in net harm, others not)? disobeyed laws of this sort under similar circumstances (large difficulties in determining what counts as “of this sort” and “similar”)? Seeking to base political obligation in this kind of reasoning leaves too many uncertainties and is still too situation-specific to yield an appropriately general duty to obey the law.346 Furthermore, everyone won’t always or often be non-law-abiding. This is a relevant point because we’re not now discussing the fairness nonconsequentialist argument or the rule utilitarian argument. Thus, whether everyone will disobey (in some specified way) can’t be assumed, but must be part of the consequentialist calculus. Sometimes the argument is that disobedience will trigger disobedience by others, contagiously leading to net harm. This argument requires sufficient publicity of the initial disobedience and then that such disobedience be followed (either specifically or more generally) in a substantial enough way to harm systemic stability. But, as Richard Flathman argues, whether disobedience will lead to contagion and spiraling chaos, as well as whether disobedience will erode one’s own disposition or willingness to obey, is speculative.347 Regarding the former, whether one is likely to follow another’s disobedience depends on various factors, including the centrality of one’s countervailing norm and whether it’s an obligation or a choice, as well as potential costs or benefits to one’s associates from disobedience. Regarding the latter, some acts of disobedience are likely to be one-shots or only replicable if the same situation arises. And even if disobedience might lead to some erosion of one’s disposition or willingness to obey the law, we also should consider the benefits from becoming the kind of person who 97

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questions and pauses before obeying. Furthermore, while some instances of copycat disobedience may impose large costs, others are trivial; the same is true for less specific disobedience-influencing-disobedience. Finally, to consider disobedience-influencing-disobedience as negative in the first place, as contagion, requires either that the initial act be not justifiable or that if it is justifiable, people follow it in mistaken belief their circumstances are relevantly similar. For if the follow-on actors’ circumstances are relevantly similar to a justifiable act of disobedience, then we should have no concern. In sum, contagion will vary by law and circumstances, and this lack of generality once again makes the consequentialist argument a poor ground for giving us all a reason to always obey the law. Thus, consequentialist arguments of the act utilitarian sort won’t work. Let’s consider rule utilitarian arguments, according to which “the rightness of an act depends on whether . . . it can be justified by a moral rule that would have desirable consequences if accepted.”348 As Kent Greenawalt puts it, “the rule utilitarian would recognize a reason for obedience that did not reduce to a balance of consequences on the particular occasion.”349 Still, for it to be a consequentialist argument, it must turn on net benefits (from our always obeying the law), and not on fairness type concerns. But our always obeying the law would bring certain harms. Sometimes outdated laws have failed to accommodate changing circumstances; sometimes laws never adequately accounted for special circumstances. Then there are situations in which the individual is more expert than the government and situations in which the individual can do a better job assessing risk versus gain than the government believes possible. In some settings, such as coordination problems and prisoner’s dilemmas, yielding to the state might be net beneficial, but other settings don’t require cooperation in the same way. Thus, although rule utilitarian arguments might support obeying certain laws or certain types of application of law, to support a general rule of political obligation via a rule utilitarian approach, we must engage in a complex calculus of determining costs and benefits in a multitude of types of circumstance, e.g., valuing a widespread but low-level harm from disobedience to a certain type of law while also valuing a rarer but significant harm from obeying a different type of law. One can see that this gets very tricky indeed. Additionally, there is something question-begging about the rule utilitarian claim. The political obligation question is whether a rule of lawabidingness is defensible, and the assertion that society will do better under such a rule can be seen as merely stating an affirmative conclusion to the 98

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political obligation question without proving the case; papers over many of the issues we’ve been discussing—such as harm to those for whom nonstate norms are of central importance and to what extent we may take majoritarian determinations of harm as the appropriate baseline;350 and asks us to defer (wholesale) to the government’s often speculative and contestable calculations about costs and benefits. The latter point is connected to a concern about comparative error costs, which I discuss below. A few final points against the argument from self-interest. (1) Each would-be legal disobedient should consider the costs that her actions would or might impose, both immediately and more systemically (as well as considering the benefits), remembering that others should make similar calculations. This should include considering the chance of error in making the cost/benefit assessment. Such costs are properly part of the citizen’s calculus of right action, just as the costs one’s actions impose on others is part of any moral calculus. The citizen’s calculus should include arguments insufficient to support political obligation but that still have weight. My discussion of disobedience here covers conscientious objection, where the subject is seeking a private (represented) exit from the law, as well as civil disobedience, where the subject is engaged in a public act seeking to change the law. Most of this book focuses on the former; I discuss the latter briefly in Chapter 2. (2) Larry Alexander and Emily Sherwin write, in describing their theory of the “gap” between authority’s reasons and the subject’s reasons (discussed in the Introduction), that “it is rational and morally desirable for Lex to issue a rule whenever it appears that the rule will prevent more errors than it will cause,” and “as long as the sum of [the subjects’] errors is likely to exceed the sum of errors of universal compliance,” then authority should prescribe the rule and demand uniform compliance.351 But although individuals might make errors in their obedience calculations— errors in calculating costs and in evaluating the virtues of their would-be action (such as the importance and necessity of the action to their normative system)—blind obedience risks error, as well. To name two ways in which this is so: law is not written with all contingencies in mind, and it sometimes neglects those who live by separate normative systems (and can do so with no or little enough harm to others, if we would only let them). Thus, net comparative error costs might suggest not adopting a rule of obedience, at least in some circumstances or for some laws or types of law (and this in turn raises the question whether we should be conducting our 99

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comparative error costs calculations across the board of all laws or relative to certain laws or types of law). We might be better off as a society by a rule of deference to the state in settings demanding heightened cooperation, but only some laws truly address such situations, and the question on the table is whether rule utilitarian arguments can support the claim for general compliance with law. Finally, whether political obligation is optimal in terms of error costs is unclear and subject to complex calculations. Taking the authority’s word on the subject of comparative error costs raises another issue: can the authority be counted on to be a better judge of such things? These last two arguments—subjects should account for consequences (including systemic ones, and discounting for the risk of erroneous calculation) when determining right action, and error costs flow from obedience as well as from disobedience—suggest that I am adopting a version of what Frederick Schauer calls “rule-sensitive particularism.”352 Under this method of decision-making, we should consider whether rules are serving their underlying justification in the given instance and also whether following the rule would yield overall net gains. Both the transparency aspect of this and the possibility that a rule will be optimal fit with my arguments in this section (I discuss the transparency concern more below). At least in the setting of political society’s establishing decision-making institutions, Schauer responds that rule-sensitive particularism is inconsistent with a reason we establish rules to begin with, “as devices for the allocation of power.”353 That is, we have rules in part to disable decision-makers from reasoning on a case-by-case basis; it’s inconsistent with this allocation of power decision to let decision-makers decide whether following a rule is overall optimal. Part of the concern is with self-interest, i.e., with respect to a specific case, decision-makers may be blinded to overall utility and instead judge more partially. My support for (what might be termed a version of) rule-sensitive particularism—both here and later, in Chapters 3 and 4, when I discuss how officials should consider following both prior and higher law in constitutional interpretation—rests on four considerations: First, it is unavoidable. In the next two sections I explain this in more detail; we are always peeking at whether following the purported authority makes sense in the given instance. Second, it is best. This may seem superfluous, given that I have just said it is unavoidable, but sometimes it’s helpful to add normative support for the inevitable, and taking rather than deflecting responsibility for decision-making is a good thing. Third, error 100

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costs cut both ways, so we can’t consider only errors (possibly of the selfjudging sort) from failing to follow rules. Fourth, that citizens should account for systemic factors wards off the most immediate concerns with self-interest and fits with my argument for the correlativity of political obligation and legitimacy, according to which the same reasons for action apply to the state and to its subjects. Assessing the argument from settlement. A core U.S. constitutional principle is that concentrations of power are dangerous, and must be checked. This is most often applied to separation of powers, judicial review, and federalism; I apply it here to law generally, viewing it (and its potentially settled nature) as a type of concentrated power of which we should also be wary. There are two ways of thinking about this. One is a point I stress elsewhere, primarily in my discussions of Rawls on natural duty earlier in this chapter and of common ground theories of precedent in Chapter 3: although settlement through law is sometimes seen as a virtue (we need to overcome disagreement, and get along, and law helps do this), it can impose real harms on those who desire to live by their own lights, via sources of normative authority separate from those of the state. The other point, which is the focus of what follows, is that all of us, not only those seeking exit options, should be vigilant of the ways in which settlement via concentrated power in the law can alienate us from our autonomy as human beings and our sovereignty as citizens. Without doubting that settlement via law has virtues, if I am correct in arguing that risks are present as well, that would count against a consequentialist argument from settlement as a ground for political obligation. I make my case here in three principal ways: (1) we risk alienating our autonomy/sovereignty through seeing power as emanating from our delegations (including law) rather than from us, (2) we should understand the U.S. multiple repositories of power concept as, inter alia, protecting against such alienation, and (3) we should see participation/voice norms as aiding in ensuring transparency between sovereign citizens and the law they produce. Then, in (4), I respond to the Burkean approach to the argument from settlement. Finally, at the end of the next section, I critique the settlement aspect of Raz’s argument that authority is normally justified when subjects do better by deferring, arguing that exogenous factors intrude on subjects’ ability to defer as a matter of course. (1) One can never displace the authority for a normative judgment,354 and normative judgments underlie all our practical decisions. At one end 101

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of the spectrum, one can do what seems right, now. At the other end of the spectrum, one can defer to an authority. But that act of deference must be justified, whether transparently or sub silentio, through a series of conscious and unconscious moves. More bluntly: Autonomy requires a safety valve. Self-respect and self-governance require that we follow what we think is right, rather than what someone else thinks (which is what the law is, in final analysis). We may never have to exercise this residual right of self-government; we may live in an enlightened nation, or resolve conflicts in ways consistent with law, or deem systemic reasons for obedience sufficient, or live away from society enough that the demands of law are infrequently felt. But knowing we will do what we must to preserve what we believe to be right allows self-respect and self-governance. (Would you not—do you not?—protect what is dearest to you, your child or spouse or, perhaps, work of art or piece of land, or, maybe, your mind, or physical integrity, against the felt oppression of even a purportedly—or mostly?—just regime?) In a liberal democracy, we are sovereign in two ways—as individuals and as citizens. Regarding the former, we maintain self-government by being responsible for our moral decision-making. Regarding the latter, we maintain tropological “self-government” by remaining aware that We the People, the citizens, are the true sovereigns, and that the state—including its officials and laws—is merely the agent, the repository of that sovereign, delegated power. In this setting, unless we remain mindful of the nature of the principal/agent relationship, because we delegate so much power to officials and through law, there is a risk that we will falsely come to see these repositories of power as their source, as the principal. Although there may be a fictional aspect to popular sovereignty—some people have badges and guns and make and enforce the laws, while most people only vote (sometimes) and otherwise mostly play the role of subject355—there is a fictional aspect to individual autonomy, as well, both as to “individual” (consider fluid concepts of the self) and “autonomy” (consider the endless constraints on choice). There is nonetheless value in positing a normative starting point of individual and citizen sovereignty to set the parameters for arguing about constraints on our delegates/representatives. The so-called exclusionary virtue of rules—they achieve settlement by preempting content-dependent judgments—obscures the currentness of moral decision-making, by flipping the principal/agent relationship. Rather than seeing the rule as something to which we defer for good reasons, we risk seeing the rule (and the authority that promulgates it) as holding a pri102

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mary moral position. We see the burden as on those who would create an exception to the rule, rather than on those who must defend, in the first instance, the delegation of authority. Because autonomy requires knowing and voluntary cession of one’s moral decision-making powers, any delegation of such powers must remain transparent. But creation of a rule-following culture disguises the true principal/agent relationship, creating opacity where transparency should be. Consider Marx’s discussion in Capital of “the fetishism of commodities and the secret thereof.”356 Although goods are produced by men and women, and thus have value because of that production, we begin to see the world of commodities as disconnected from their source, as having a kind of inherent value. For Marx, the analogy is to theism, where human beings mistakenly (in his view) create God in their image and then begin to see God as their fetish, i.e., to alienate the true source of authority (human) and see the authority as coming from without rather than within. Similarly, settlement risks our seeing the rules, rather than the people who authorize them, as sovereign.357 Keeping the true source of authority transparent insures against such alienation. (2) Here is one way of seeing how settled law risks alienating citizen sovereignty by seducing us to see the law rather than the self as the principal. The main danger of concentrated power is its tendency to alienate responsibility. One must be careful with terminology here: Concentrated power enhances a certain type of responsibility, i.e., accountability. But my concern here isn’t with accountability. It’s that both the holders of delegated, concentrated power (the agents) and the citizens (the principals) will come to the false, mystified belief that the agents are the principals. This is the dangerous flip-side of accountability. So we need authority transparent, yet checked. And this leads to a central tenet of American constitutionalism, the multiple repositories of power. The multiple repositories of power at the heart of our Constitution prevent any one person or locus of delegated, governmental authority from gaining too much control. The result of this careful fracturing of authority is profound. We have no king, no ministry of culture dictating proper English, no prime minister acting in Parliament, no centrally organized church, no power in the courts to block the publication of scandalous newspapers. We have, instead, an irreducible Constitution, one that animates a constant struggle for authority, power, and privilege.358 This anti– concentration of power principle is usually—and correctly—seen as 103

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ensuring liberty by preventing the self-dealing and self-aggrandizement likely to occur when power becomes concentrated. My focus on multiple repositories of power here is related, but different. By keeping power divided, by placing the delegated powers of the sovereign people in multiple repositories, each checking the other, our constitutional structure guards against the risk that any official (or group of officials) will think of himself (or themselves) as the source of authority, rather than its delegated repository. Simultaneously, the divided power structure helps the sovereign citizens maintain a true understanding of the nature of the principal/agent relationship, with citizens as principals and officials as agents. The result is a paradox: multiple repositories of power make it harder to know whom to blame, but that very fact insures against the inversion of the principal/agent relationship, thus making it easier for the sovereign citizens to exercise selfgovernment.359 This structure reveals the human beings who constitute the government as actors who must compete for the citizens’ allegiance, not only with each other, but also with other normative forces at work in the lives of the principals—religion, philosophy, family, etc. Later, I show how exit from political society—real and represented; complete and partial—helps remedy the political obligation problem. Here, note that a structure of rights allowing a vigorous maintenance of separate fonts of normative authority helps establish separate repositories of power outside government from which citizens can develop values that may compete with those offered through government. Multiple repositories of power both in and out of government help ensure the principal/agent relationship of citizen to government official remains clear and the claims of law transparently those of the government to which we delegate power, rather than appearing as demands emanating from an external source of authority. Just as concentration of power risks alienation of citizen sovereignty, so we can see settled law as a type of concentrated power, bearing similar risks. Transparency of the principal/agent relationship; preventing a monopoly of power in any official or branch of government, which, if allowed to take hold, would risk inverting that relationship; multiple repositories of power to ensure against such monopoly and to help create private fonts of normative authority from which to challenge government—all of this is in tension with law as settlement. For although law as settlement might flow from a valid waiver of one’s moral powers, such cedings of power come with the risk the ensuing law will seem, because of its being settled, to be the source of authority, rather than its repository. 104

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In the related area of constitutional interpretation, we take settled understandings as given and place a high burden on those who would seek to topple such understandings or seek exceptions.360 We do this in part because of Burkean common law epistemology (the settled as strong evidence of what is true) and in part because of stability values. We see the settled as something legislatures should not disturb (thus warranting judicial review if they do) and as something courts may enforce (either to uphold legislation in accord with the settlement or to strike down legislation in opposition).361 The unsettled, on the other hand, is seen as the realm of politics, not of law. But we should see constitutional understandings as mutable, digging into where the understandings come from, what the facts are, and see whether the settled makes sense. Otherwise, it is too easy to allow the currently uncontested status of an area of constitutional meaning to seem natural and thus its legal manifestation as deserving obedience for that reason. I discuss these matters further in Chapters 3 and 4. (3) Proper norms of participation can assist in maintaining the true principal/agent relationship and in warding off the risks of alienation of sovereignty. As I discussed earlier in this chapter, adjudication binds only persons who have had a proper participatory role or who have been offered such a role. This lesson from the law of judgments is worth recalling here. We respect autonomy by insisting on an opportunity to participate in proceedings that hold the potential for deprivation of life, liberty, or property, not by deferring to the fact that other perhaps capable and motivated persons litigated the same issue. Virtual representation is insufficient for adjudicative bindingness. Ideally, we could use the adjudicative model from the law of judgments to create a narrow model of political obligation, by binding only those persons who had an opportunity to make the law. But this is an impossible goal. The question is whether we can work out a second-best version of the adjudicative participation model to satisfy the demands of autonomy and of political obligation and legitimacy. In the “Guidelines” section of Chapter 4 (and in Chapter 3 more generally), I defend generational participation as a method of accommodating, on the one hand, the requirement that self-government be ceded through knowing and voluntary waiver only, and, on the other hand, the fact that perfect self-government—in which each citizen plays a full participatory role in each governmental decision that affects her—is impossible. I couple this model of generational participation with a robust 105

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conception of exit (developed in Chapter 2) to create a combination of voice and exit that buttresses political and interpretive obligation, though in a compromised, second-best way. For now, though, I stress the connection between voice and a theme of this section: keeping transparent the connection between the sovereign citizens and their agents, the officials and laws. This can happen either more (via adjudicative participation and the law of judgments) or less (via a represented model of generational participation) directly. A strong norm of voice can help with the focal points of this section—transparency, preventing monopoly through establishing multiple repositories of power, and seeing what is settled as improperly elevating the risk of alienating sovereignty. Such a norm is almost always a second-best solution, however, because it does not involve participation in each governmental act that affects the citizen. Likewise, the model of exit I develop later is also second-best, because it does not rest on actual exit, i.e., emigration. A representation of true voice and a representation of true exit, though representations and therefore not fully grounding political obligation and legitimacy, nonetheless will aid in the effort. (4) Finally, there is little to be said for the claim that the traditions and practices of the people work their way toward truth, or the good, and therefore deserve deference. I discuss this more in Chapter 3; for now, consider a central problem with the Burkean argument: We have scant reason to believe that settled law represents true or best answers, at least not all or most of the time. Current actors may be relying on past actors out of sluggishness or a desire not to rock the boat. Sometimes referred to as a bandwagon or cascade effect,362 this kind of piling on makes it less likely that tradition carries epistemic force to which we should defer. To the contrary, there is reason to think there is not wisdom in numbers. Furthermore, Wall’s argument that autonomy depends on practice-based criteria for moral judgment—that otherwise “no sense could be given to the notion of moral disagreement” and there would be “no sense to speak of moral judgement at all”363—is problematic for two reasons. First, we could be moral realists, believing in objective truths, but cautious epistemologically about how we locate those truths and accordingly respectful of dissenting consciences.364 We could aspire to public resolution of moral judgment but insist on seeing sovereignty as permeable rather than plenary to account for error costs by the state as well as by the individual. Second, as does Burke, Wall develops a social practice-based conception 106

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of resolving moral disagreement, thus triggering critiques that practice is often not evidence of truth but rather of agglomerated power and that it fails to pay sufficient respect for minority viewpoints that have no true access to public power. Assessing Raz’s theory. Joseph Raz offers the “ser vice conception of authority.”365 It starts with the “dependence thesis,” which holds that an authority’s reasons depend on reasons that already apply to the subjects.366 An authority might, though, have access to information or processing ability the subject lacks. Solving coordination or prisoner’s dilemma problems are classic examples.367 Raz then states the “normal justification thesis,” which holds that authority is justified when subjects are likely to do better by yielding to it, normally, than by relying on their own reasoning.368 There are a few conceptual questions here on which Raz is insufficiently clear. One is a level of generality question: does Raz mean “likely to do better” systemically, or for a certain category of decision, or in any given instance? Another is a question about point of view: does Raz mean the authority must believe the “likely to do better” condition is present, or the subject must believe it, or it must objectively be the case? The answers seem to be, for Raz, systemic (or else we collapse into a kind of act utilitarianism, which is too costly in terms of calculating when to yield to authority); and objective (for we are trying to justify authority). The combination of the dependence and normal justification theses yields “the service conception of authority,” i.e., legitimate authority serves the subjects, rather than acting on its own behalf or by leading.369 If the dependence and normal justification theses hold, for a given authority, then the “preemption thesis” requires that some of the subjects’ content-dependent judgments be excluded, i.e., preempted.370 In this way, legitimate authority, says Raz, implies blind obedience.371 Content-independence is the key here—bracketing the subject’s first-order moral reasoning, i.e., the subject’s content-dependent reasoning, is central to Raz’s arguments.372 This is a powerful and concise theory of what we mean when we talk about legitimate authority. It follows, under Raz’s theory, that law may claim and have legitimate authority if it satisfies the service conception and thus appropriately preempts its subjects’ reasoning. “A law is authoritative,” says Raz, “if its existence is a reason for conforming action and for excluding conflicting considerations.”373 If subjects will likely do better by following 107

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law than by resorting to their own judgments, then the law legitimately excludes—i.e., preempts—those separate judgments.374 Furthermore, because the ser vice conception holds only if the subjects will likely do better by yielding autonomy to authority, then there is no conflict between autonomy and authority, and thus the concern that there is a “paradox”375— autonomy and authority can never be reconciled because the latter requires ceding the former—is alleviated.376 Finally, if the predicates of the ser vice conception hold in a legal system—if in fact subjects are likely to do better by yielding to law and thereby preempting their own moral judgments—then the ser vice conception of authority has provided not only a basis for justifying legal authority but also a reason for subjects to comply with the law, and thus grounds political obligation. As Raz admits, however, the conditions for the ser vice conception are unlikely to obtain for a society or a purported legal system.377 Raz focuses on the fact that law generalizes and disregards distinctions, and he gives examples of how people might do better by not acknowledging the authority of the law.378 I discussed this and related concerns earlier in this section. Furthermore, the answer to whether subjects will do better by following the law (overall, considering net costs and benefits) won’t fall from the sky, and thus we have a kind of infinite regress, for the objective judgment of whether the conditions hold must ultimately be made by either the authority (thus seemingly trumping the subjects’ autonomy for this meta-level decision) or the subjects (thus reintroducing a moral calculus the ser vice conception is meant to preempt; more on this below). Moreover, there will often be doubt and uncertainty, from the point of  view of anyone who has to make the objective determination, as to whether subjects will do better by yielding to authority. Thus, although the ser vice conception states a plausible consequentialist framework for political obligation—that we will be better off by obeying the law (a type of authority)—the conception works better ideally than in real-world application. I conclude this chapter by further exploring the limits of an authority’s ability to exclude/preempt its subjects’ normative reasoning. In so doing, I hope to undercut the supposed settlement virtues of deferring to law as a type of authority, and thus undercut an aspect of the consequentialist case for political obligation. Only “some of” the subjects’ moral judgments are preempted under the service conception of authority, because, as Raz says, 108

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we must allow jurisdictional objections (is the authority acting within the legitimate scope of its power?).379 Preemption follows from dependence and normal justification (which combine to equal the service conception); dependence exists if and only if the authority’s reasons are ones that already apply to the subjects; and an authority’s reasons for exercising jurisdiction over area X of the subjects’ lives are not reasons that already apply to the subjects. One needs a theory to determine jurisdiction; to distinguish what’s outside an authority’s proper scope of power from what’s within it, one needs to reason about the nature and purpose of the authority in the context of the situation and the subjects. Not only do determinations of jurisdiction necessarily involve exogenous considerations, but also we cannot leave it to the authorities to determine their appropriate jurisdiction, because that puts the cart before the horse. We are trying to determine if the authorities are legitimate (under Raz’s theory of legitimate authority), and thus we can’t simply accept an authority’s claim of legitimate power to determine jurisdiction. Boundary drawing will necessarily involve the subjects, and it will involve their normative judgments. In this way, jurisdictional questions present a conceptual hurdle for Raz’s theory of legitimate authority. In addition to allowing jurisdictional objections, Raz remains open to permitting proof that the authority has made a “clear mistake” in assessing what’s best for the subjects, and this raises further concerns with the ability of rules to serve a settlement function.380 (He rejects, however, a “great mistake” rule, for this would reimpose the subjects’ moral reasoning, and thus scuttle the virtues of authority.)381 A similar problem is revealed in Frederick Schauer’s “presumptive positivism,”382 which allows overriding rules, and Justice Scalia’s acceptance of an absurdity exception to the statutory interpretation rule of “plain meaning.”383 Whereas jurisdictional theory is necessary, even to an exclusive positivist such as Raz (boundaries must be drawn), override theory is not necessary; one could accept the application of any rule within its established jurisdiction, no matter how clearly mistaken, absurd, or irrational the application. Under such a strict theory of preemption or exclusion, unless rules are officially repealed or modified, override must occur through a type of disobedience, introducing the subjects’ moral reasoning against the system. But it is difficult to accept law as plenary and leave ridiculous cases to this kind of oppositional posture. (By “ridiculous” I refer to interpretive ridiculousness—e.g., where a purportedly literal reading of a statutory term makes no sense in context 109

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of the facts—and to moral ridiculousness—e.g., where a purportedly exceptionless reading of law leads to a result that would uncontroversially be considered a moral mistake.) One is drawn, instead, to erecting a mechanism within a legal system for adjudicative exemptions in such cases. Schauer’s theory of override—like Raz’s openness to a clear mistake rule and Scalia’s acceptance of an absurdity exception to statutory plain meaning—suggests that accepting ridiculous applications of rules is a tough pill to swallow and that we can and should try to find a way around such outcomes. As I demonstrate in a moment through discussing Schauer’s argument, the intrusion of normative considerations in determining whether a rule should be overridden is pervasive, undercutting substantially the settlement virtues of rules (and law). One might object that I am addressing something that occurs after the prima facie stage. In other words, since we are considering whether there is a reason for general compliance with law, maybe the answer is “yes, because of the settlement function,” and then whether this reason gives way, in certain cases, because of overriding considerations, is a second step, which doesn’t affect the initial, prima facie consequentialist reason. I have three responses. First, as explored in my rejection of the arguments against self-interest and from settlement, many of the points against a consequentialist case for political obligation are independent from the one discussed here. Second, if one is making a case for rule following through authority’s ability to exclude/preempt contentdependent reasons (which in part overlaps with the case for rule following from settlement virtues), then my points about the inevitable intrusion of such reasons undercut the case for authority at its core. Third, even if we were to assume arguendo that a consequentialist argument from settlement suffices to back political obligation, an openness to override would significantly undercut the purported settlement gains, even if it wouldn’t eliminate them. I turn to exploring Schauer’s override theory, to see the kind of hole it opens in the argument for the exclusionary virtue of rules. This issue—a rule-like mien, the intrusion of exogenous considerations—is at the heart of a matter to which Schauer devotes significant attention in Playing by the Rules: the overrideability of rules. As Schauer puts it, for something to be a rule, it must (among other things) not always be open to challenge from an all-things- considered judgment. It must, at least sometimes, be impervious to such a challenge.384 But unlike those who 110

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claim that rules must be totally impervious, Schauer argues that rules may be overridden—often—so long as they maintain some stickiness, some resistance to the ad hoc. He says this many times, in many ways, in the book.385 In his key section on the overrideability of rules, Schauer says that Raz takes “exclusionary reasons as incapable of override, claiming that an exclusionary reason ‘always prevails’ in cases of conflict with a firstorder reason,”386 and Schauer critiques this position. (We can put aside for present purposes Raz’s openness to a “clear mistake” exception.) Schauer reports Raz’s example of a woman who “adopts as a rule for herself that she will always spend her holidays in France, thereby excluding the possibility of acting on the reason that hotels in some other part of the world are offering particularly good deals this year.”387 Suppose she learns of a great deal in the Austrian Alps, “dramatically”388 less expensive than the planned French vacation. Under Schauer’s view, the woman “could see this as such an obviously good deal that the exclusion of considering such factors could be overridden,”389 even though she would not permit good (but not great) deals to trump her France- only rule. I wonder whether Schauer has proved too much, whether his acknowledgment of the overrideability of rules has cast into doubt the work he claims for rules.390 Let’s examine the French vacation example. Schauer refers to the Austrian Alps possibility as an “obviously good deal” and an “especially dramatic case.”391 The France-only rule would be overridden in such situations only; the woman would consider certain excluded factors when and only when they are “particularly compelling.”392 Schauer continues, “it might then seem to Raz that if the agent must look at the [excluded] firstorder reason, and must determine if it is to control in this case, then it has not been excluded at all. My account, however, does not see this as a psychologically impossible situation, supposing instead that there may be a difference between a careful look at a first-order reason and merely a perfunctory glimpse at it.”393 How, though, does one determine whether an excluded reason is “obviously good,” “especially dramatic,” or “particularly compelling”? One needs a theory not dictated by the rule itself, and whatever factors that theory makes relevant will always be in play, even when they are suppressed. So, when the woman easily takes her French vacation because no great deals have arisen, she may not be consciously thinking about other vacation ideas, but that is because of the absence of 111

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the complicating possibilities. This is similar to the plain meaning situation in statutory interpretation: we sometimes rely on plain meaning quickly and easily, but can be yanked away from that ease by hitherto suppressed attributes brought to our attention in one way (perhaps we have some background knowledge?) or another (perhaps we’ve learned something new?).394 The calculus of whether to override a rule is always operating, whether in the foreground (in what we might call hard cases) or in the background (in what we might call easy cases). Once one acknowledges that there are other factors to consider, just like once one considers, in the statutory interpretation setting, that there is other knowledge about the relevant field beyond plain meaning, then those other factors, that other knowledge, are constantly in play, whether foregrounded or backgrounded. It is now difficult to understand why the rule—or the plain meaning—should be considered foreground and the other factors—or the other knowledge—should be considered background. Why not the other way around? The settlement virtues of rules (even if merely presumptive, as Schauer argues) diminish significantly when one considers the necessary intrusion of exogenous factors, as not merely something that can be dismissed with a “perfunctory glimpse” (although it may sometimes seem that way to rule appliers), but rather as an unruly interplay of rule and override. We need a theory to understand when to override, and that theory cannot be dictated by the rule itself. Additionally, one of Schauer’s arguments for rules—that they allow one to defer to the authority of others—states too narrow a view of responsibility. He writes, “Defending one’s errors by reference to rules is often a successful strategy, in part because when one makes an error by following a rule, at least part of the responsibility can be attributed to (or blamed on) the rule-maker, whereas the rule-breaker has no such easily available blame-sharing option.”395 And later: “The rule-follower can be characterized as simply deferring to the decision-making capacities of another. An agent who says, ‘This is not my job,’ is not necessarily abdicating responsibility. One form of taking responsibility consists in taking the responsibility for leaving certain responsibilities to others.”396 The problem with these formulations, however, is that given the always-lurking possibility of override, one must always decide whether this is the time to follow a rule, and that decision depends on factors the rule itself cannot control. Responsibility remains in the hands of today’s decision-maker; the decision to follow a rule may sometimes seem easy, but that is only because of a 112

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complicated backgrounded set of ruling-out decisions one has already made. In sum, if we add the necessary intrusion of subjects’ normative judgments on jurisdictional matters to the nonexclusionary reasoning of override/clear mistake/absurdity, we can see how settlement is significantly weakened as an argument for political obligation.

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We are left with a dilemma. If one accepts the foregoing arguments, not only do we not have a moral duty to obey the law, but also the state lacks a legitimate basis for demanding general legal compliance. Political obligation and its correlate, political legitimacy, lack sufficient grounding for the generality a satisfactory solution demands. Perhaps, though, we can turn from ways of connecting us to the state and toward ways of disconnecting us from it. Perhaps, that is, we should examine exit options, through state-provided exemptions. (Properly understood, these are representations of exit, rather than actual exit, which would involve emigration or secession.) By so doing, government would disclaim authority, at least in a plenary sense. Rather, the state would accept and acknowledge that sovereignty permeates through to all sources of normative authority on which its subjects rely. There are two ways of viewing this exit strategy. One: By providing exit options, the state can legitimate its claims of authority and ground political obligation. We might call this a “partial legitimacy” solution,1 since we would still not have a general ground for the state’s demand that we always obey the law. Two: Representations of exit remedy the harm caused by the state’s unjustifiable general demand for compliance with law and the correlated failure of a satisfactory theory of political obligation. (And recall, as I argued in the Introduction, even if one rejects the correlativity of political legitimacy and obligation, one could still agree that if political obligation is insufficiently grounded, then government should seek ways to assist those who find themselves in a dilemma of competing claims of sovereignty, from state and other sources.) We might call this a “partial remedy,” for even exemptions won’t fully ameliorate the dilemma in which some citizens find themselves when confronted with law that conflicts with other normative commitments. My inclination is to view exit options as a remedy, rather than as the missing piece of the legitimacy/obligation puzzle. For even a robust system 114

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of exit options doesn’t fix the problems discussed in Chapter 1 with theories of political obligation; rather, it acknowledges the difficulties and responds by letting people free from the clutches of the state. Either way, though— whether we see exit options as solving the legitimacy/obligation puzzle or more modestly as providing a balm against the otherwise scorching demands of the law—the central point is that viewing state sovereignty as plenary is a wish, a hope, an illusion, and we should dispense with it. But anarchy and chaos is not the alternative; instead, we can seek a nuanced approach to relaxing the demands of the state, to allowing religious and philosophical and other sources of normative authority to govern the lives of the state’s subjects to the fullest extent compatible with the stable operation of government and the liberty of other persons. How we accommodate exit with stability and the liberty of others is a difficult task, but that is no reason to scrap the undertaking. A note about method before continuing: The foregoing arguments have been mostly based in normative political theory, with some attention to U.S. constitutional law. They have not been meant primarily as an interpretation of the U.S. Constitution. The main use of our Constitution was to show how the anti– concentration of power principle, which I call an insistence on multiple repositories of power, cuts against the settlement argument for political obligation. Although we most often think about multiple repositories of power in our constitutional system in terms of structure—separation of powers, judicial review, and federalism—it is also an apt description for many of the rights secured by the First Amendment. Sometimes we focus on political rights; indeed, the right to challenge government through speech, press, and petition (and the franchise, secured through other amendments) is a central mechanism for checking concentrated power. But the First Amendment also secures freedom of religion and has been interpreted to secure the freedom of both expressive and intimate association. Freedom of religion and freedom of intimate association are two important ways of ensuring that people may hold fast to sources of normative authority other than the state. In these ways, we can use the concept of multiple repositories of power to argue both against settlement and for permeable sovereignty. My arguments in this chapter draw on debates within U.S. constitutional law about legislative accommodations and judicial exemptions for religious practice. These discussions, in “Permeable Sovereignty and the Religion Clauses,” are partly descriptive of our current constitutional law and partly 115

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critical, suggesting that to take seriously the legitimation/obligation problem we should endorse a more expansive view of represented exit. The case for exit options to secure permeable sovereignty extends beyond religion as a competing source of normative authority, however, and “Exiting from the Law” treats some of the nuances regarding how to develop and administer a system of exit options (for religious and secular claims), through both legislature and judiciary. Legislatures have the power to craft accommodations; if one accepts my foregoing arguments about the need for represented exit options to remedy the legitimation/obligation problem, then we have a good basis in policy or principle for legislative accommodations, for religious and other norms.2 But apart from the common law power of state courts, the judiciary in the U.S. system would need something more than a good argument from policy or principle to insist on exemptions from law (in appropriate cases). In “Permeable Sovereignty and the Religion Clauses,” I criticize the Court’s holding in Employment Division v. Smith, which refused to engage in stepped-up judicial scrutiny for laws incidentally burdening religious practice;3 I maintain that judicial exemptions for the free exercise of religion should be considered a matter of constitutional right. (And, since legislators take the same oath of office as do judges, they too should craft accommodations for religious practice as a matter of constitutional right, in addition to any other bases in policy or principle that support crafting such accommodations—such as remedying the legitimation/obligation problem.) I do not there argue for a constitutional right to judicial exemptions for nonreligious norms; the argument is specific to how the religion clauses operate in tandem. One could construct an argument for judicial exemptions beyond religious practice, as a matter of constitutional right.4 One approach would involve construing the Free Exercise Clause (and perhaps other related rights, such as the freedom of association) to be a textual marker of a broader protection for freedom of conscience.5 A related argument is that our norms of constitutional equality require that exemptions be broadened beyond freedom of religion.6 A final possibility suggests that we interpret our Constitution to be coextensive with proper principles of political justice, which would include seeking to remedy the legitimation/obligation problem for nonreligious as well as religious sources of normative authority, with courts as well as legislatures obliged to craft such remedies. I have argued elsewhere that our Constitution should be understood as coextensive with political justice,7 but won’t repeat the case here. 116

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Exiting from the Law I have argued that we do not have a moral duty to obey the law and correlatively that the state lacks adequate justification for insisting on lock-step obedience. Also, I have argued from a baseline of permeable sovereignty rather than liberty more generally; i.e., that we should view all sources of normative authority—religious, philosophical, cultural, family-based, etc.—as on par with the state’s laws. Sovereignty, viewed in this way, is not plenary in the state, but rather is permeable through to the plurality of sources of value, of norms, of obligation. The state can loosen its sovereign demands and accommodate these other sources of normative authority that many citizens hold dear. How to do this is the question I tackle here; I also critique an approach that rejects exemptions. First, though, a few words about emigration and civil disobedience. Perhaps a real—not represented—exit option already exists for American citizens. There are no formal barriers to emigrating. Nonetheless, we should not view this as a sufficient remedy for the legitimation/obligation problem. First, immigrating elsewhere is a different matter. Various hurdles will exist (as they do for immigrating here), and another sovereign might offer citizenship with a far different package of rights and duties than is offered domestically. Second, the costs of emigrating are enormous. There are financial costs of relocating and finding new employment. There are emotional costs of leaving one’s friends and family. There are cultural costs of leaving a milieu of language, art, entertainment, society, etc., that one understands for a setting with which one is unfamiliar. Given these concerns, I concluded in Chapter 1 that it’s unreasonable to deem the failure to emigrate as tantamount to consent to domestic laws. Here I add that the emigration “option” is insufficient as a remedy for the political legitimation/obligation problem. Note also that if we took the formal right of emigration either to ground political obligation (along with residence plus benefits) or as a remedy for the legitimation/obligation problem, then we would have to alter dramatically our thinking about constitutional rights. Freedom of speech denied by city ordinance? Well, you could move to a different city. It’s a state law? Vote with your feet! Move to a different state. Federal statute? Emigrate! One reason that we don’t view rights as conditions questions—i.e., when may government condition citizenship on rejecting the right in question?—is that we do not normally view voting with one’s feet as a satisfactory option. 117

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My argument focuses on “conscientious objection”—the normatively based desire to live in the nation but free from the law (or a law or set of laws). It is about exit, but of the represented rather than actual sort, because it is not about emigration. Civil disobedience is not about exit at all. In many ways, it is the antithesis of exit. While exit is an attempt at a private escape from the clutches of law, not necessarily seeking legal change, civil disobedience is a public means of protest, seeking to remain within and alter the system. It is a form of voice, rather than exit, but since it is flouting the rules rather than playing by them, it is not at the core of the voice/ participation argument for political obligation, which, as we saw in Chapter 1, turns primarily on the opportunity to vote and otherwise speak on political issues and electoral politics. Civil disobedience by subjects regarding law is related to interpretive disobedience by officials regarding Supreme Court decisions (which I cover in Chapter 4). Neither is sufficient to legitimate authority or to back a rule of political (or interpretive) obligation; but both practices, as aspects of voice, can serve as examples of how sovereignty is continually regained and reasserted through multiplicity, through its exercise on a daily basis by individual officials and citizens. I set forth three approaches to the exemptions problem, stemming from three approaches to the problem of competing normative structures. The first, which follows from much of the foregoing, is a balancing approach requiring exemptions for significant burdens imposed by generally applicable law on behavior that is part of a system of values competing with the state’s. The predicate is my argument against political obligation and correlated political legitimacy, and in favor of a baseline of permeable sovereignty, which sees all sources of normative authority as starting out on equal footing with that of the state. The required exemptions would be prima facie only, permitting government to resist them through showing a compelling state interest. I discuss this further below; for now note that a mere desire for uniformity will (almost) never suffice as a compelling state interest, and we should also be cautious before accepting paternalistic justifications for the application of law to religious and other deeply held, normative views. Finally, although my argument against political obligation and legitimacy has placed the burden on the state to justify its coercion either law by law or case by case, the citizen should first make her case for how she is burdened, and then the state should respond with its purportedly compelling interest. This makes sense because we want to 118

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screen out citizen claims based on either insubstantial hits to serious interests or any kind of hit to an interest not part of one’s deeper set of values, i.e., to what we could properly deem a source of sovereignty that competes with the state. The opposite approach is offered by Brian Barry. He rejects a “politics of difference” and endorses instead a “politics of solidarity,” according to which “citizens belong to a single society and share a common fate.”8 We should resolve disputes “by adopting the policy favoured by the majority,” and minorities should receive no special protections so long as they have had “an equal say in the outcome.”9 “Within a liberal state all groups are free to deploy their energies and resources in pursuit of culturally derived objectives on the same terms.”10 The “conditions for maintaining liberal democracy must be quite stringent.”11 A sense of solidarity is needed, and citizens must “have certain attitudes toward another. It must be accepted on all hands that the interests of everyone must count equally, and that there are no groups whose members’ views are to be automatically discounted. Equally important is a willingness on the part of citizens to make sacrifices for the common good.”12 “Citizens should have firm expectations of one another.”13 This “cluster of attitudes towards fellow citizens” is “a sense of common nationality.”14 This politics of solidarity is buttressed by a moral universalism and comprehensive liberalism that includes a conception of universal human rights. “The defining feature of a liberal,” Barry writes, “is that it is someone who holds that there are certain rights against oppression, exploitation and injury to which every single human being is entitled to lay claim, and that appeals to ‘cultural diversity’ and pluralism under no circumstances trump the value of basic liberal rights.”15 Barry argues that “moral universalism is valid”16 and claims that “liberals are universalists.”17 “Liberal democracy,” he maintains, “depends on a general belief that there is such a thing as truth, as against my truth or your truth.”18 This means that if “there are sound reasons against doing something, these cannot be trumped by saying—even if it is true—that doing it is a part of your culture.”19 Barry admits that his is a version of natural law theory. He claims that “precisely because human beings are virtually identical as they come from the hand of nature—at any rate at the level of groups—there is nothing straightforwardly absurd about the idea that there is a single best way for human beings to live, allowing whatever adjustments are necessary for different physical environments.”20 One way to support the claim that basic human 119

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interests are universal “would be to argue that there is a universal human nature which gives rise to certain physiological and psychological needs,” and Barry sees “no reason why this argument should not be carried through successfully.”21 Thus, for Barry, equal rights of political participation combined with laws that steer clear of violating universal human rights suffice for political legitimacy, and religious or cultural minority groups whose practices are nonetheless harmed have no standing to complain. Liberalism is not culturally neutral in effect, for (inter alia) “in relegating religion to the private sphere, [it] fails to accommodate all those whose beliefs include the notion that religion ought to have public expression.”22 But liberalism is neutral in that it is “fair”; by “privatizing religion” (for example), liberalism gives religions “equal treatment, and equal treatment is what in this context is fair.”23 Laws will affect religions differently, but it is “a mistake” to claim that such disparate impact “is a sign of unfairness.”24 Accordingly, Barry supports the outcome and reasoning in Employment Division v. Smith.25 There, the Court rejected a claim that Oregon infringed the free exercise of religion by applying its controlled-substance laws to a minority religious group’s practice of ingesting peyote, a hallucinogenic substance. Moreover, the Court refused to apply elevated Free Exercise Clause scrutiny for harm to religious practice from the incidental impact of a nondiscriminatory, generally applicable law. “Justice (in the form of equal treatment) and freedom of religion,” contends Barry, “do not require exemptions from generally applicable laws simply on the basis of their having a differential effect on people according to their beliefs, norms, compulsions or preferences.”26 He argues that defending a minority group’s right to practice its religion (or other set of norms) in the face of otherwise morally legitimate laws enacted through democratic majoritarian process is tantamount to “moral anarchy”; i.e., to insist that we tolerate minority group practices that run counter to otherwise valid laws is to assert that “there are no overarching norms by which groups and communities can be judged—or at any rate no such [judgments] can legitimately form a basis for the exercise of political authority.”27 To see how Barry applies these theories in practice, consider these two case studies. One: He discusses a proposal “to require all animals to be stunned before death,” backed by studies showing that animals not stunned before death experience a higher degree of pain, suffering, and distress.28 Responding to claims that such a law would infringe the religious liberty of 120

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some Jews and Muslims (for whom ritual slaughter of animals for human consumption does not permit stunning before death),29 Barry argues that “an appeal to religious liberty provides only spurious support for this and other similar exemptions, because the law does not restrict religious liberty, only the ability to eat meat.”30 Two: Barry discusses a law requiring motorcycle riders to wear helmets, with no accommodation for Sikhs, whose religion requires wearing a turban, even in that setting. Such a law is properly considered not to interfere with Sikh religious practice, he maintains, “because the inability to ride a motorcycle does not prevent a Sikh from observing any demands of his religion.”31 I take up these cases again below. Barry’s comprehensive liberalism is based in a too-confident certainty regarding the content of rights and a conception of the community that improperly (and unnecessarily) privileges common ground over difference. His argument admits of no epistemic doubt about the content of rights; once we have enough evidence for an argument that a certain type of practice should be regulated, then it should be regulated, regardless of countervailing claims from minority practices. This is at the core of Barry’s moral universalism translated into universally enforceable human rights. It is no different in its use of certainty from other comprehensive doctrines (for example, religious ones). My principal critique is not from skepticism, but rather from doubt. One can be a moral objectivist and believe there are moral truths, but still be uncertain about their content and their application. Even as we regulate on the basis of best evidence and arguments, we should be open to our being wrong, either in full or at the margins, and should accommodate minority practices to the extent possible, consistent with protecting the liberty of others. The balancing approach I favor recognizes this doubt about our premises and hedges our bets in all directions. Moreover, Barry privileges the centripetal over the centrifugal, community solidarity over cultural and religious difference. But there is no reason we can’t have both—government (and the private sector) can push in many ways for cohesion and common ground, while leaving minority groups to develop, simultaneously, their own conceptions of the right and the good. We can see the state’s desire for common ground as appropriate for persuasive, but not regulatory, action. Because of his premises of moral and human rights, universalism, and majoritarian democratic preferences, Barry pays no attention to how majorities use legislation to favor their own cultural and religious interests and neglect those of minorities. (We see this 121

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most flagrantly in his conclusions that animal-stunning laws and motorcyclehelmet laws do not infringe freedom of religion, but rather—for the affected minorities—the ability to eat meat or ride a motorcycle.) Moreover, his argument that the disparate impact of generally applicable laws on cultural and religious minorities raises no fairness concerns not only is grounded in the universalism, majoritarian, and common-ground-solidarity premises, but also assumes the political legitimacy of states that advance a conception of the common good through regulation, even if such regulation rides roughshod (in effect) over minority interests. Similarly, there is an assumption of political obligation, i.e., that citizens in such a republic have a moral duty to obey the law. (It’s possible that Barry would back political legitimacy without correlatively backing political obligation, but his argument fits with a kind of associative obligation/common ground theory of political obligation, as well.) These assumptions of legitimacy and obligation need a deeper grounding than Barry gives and, I would suggest, than can be provided.32 As does Barry, Christopher Eisgruber and Lawrence Sager begin from a premise of the legitimacy of majoritarian governance and the stability such governance can bring.33 “Our laws,” they write, “are the product of legislative and administrative concerns, enacted by our representatives in service of what those representatives deem good and sufficient reasons. And very often those reasons are indeed both good and sufficient.”34 In rejecting a presumption that government must justify its unintentional impositions on religious liberty, Eisgruber and Sager endorse a systemic stability justification for the state: “[W]e are regularly called upon to act in ways that we dislike. . . . We accept the imposition of a myriad of rules, even though those rules often deflect us from the course we would otherwise pursue; and even, in some cases, when we regard the collective projects that underwrite the rules as misguided. We accept the imposition of these rules because our society—indeed any modern society—could not function without reciprocal sacrifices of this sort.”35 Unlike Barry, Eisgruber and Sager open the door to exemptions for minority group practices. We should protect religious practice even from unintentional impositions because religious practice is vulnerable to majoritarian neglect, they argue, but we should do so only insofar as we would protect similarly situated nonreligious practice from such neglect. Thus, instead of requiring government to justify impositions on religious or other practice, Eisgruber and Sager propose a theory of “equal liberty,” which “insists that no member of the community ought to be devalued on 122

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account of the spiritual foundations of his or her basic commitments.”36 They operationalize this through a complementary theory of “equal regard,” a failure of which is “a failure by the state to show the same concern for the fundamental needs of all its citizens.”37 To challenge state action successfully on this ground, one must determine whether the state treats our “most valued commitments and projects” evenhandedly, whether religious or secular.38 To do that, one must look to what the law regulates and what it fails to regulate, establish relevant benchmarks of comparison, and ask whether, if the majority were in the minority’s shoes, it would be regulating the same way. One example is the federal government’s decision to build a road through a sacred Native American site. To determine whether equal regard was violated in an unconstitutional fashion, Eisgruber and Sager write, “There is an important counterfactual question lurking in the background, of the form ‘If the location of the road threatened a wellrecognized conservationist interest . . . or was a site sacred to a small but well-acknowledged group of Catholics or Orthodox Jews, would the [government] have pushed ahead with its plans?’ The answer to that question is almost certainly no.”39 I discuss this benchmarking-counterfactual strategy and critique the “equal regard” approach below. No one argues for an absolute right to judicial exemption. The right is prima facie only, subject to override by a compelling state interest. The pre-Smith case law, at least at the Supreme Court level, often found sufficient state interests,40 sometimes questionably so. For example, in Bowen v. Roy,41 a plurality of Justices upheld a benefit program’s requirement that applicants provide Social Security numbers because of an interest in preventing fraud, thus rejecting an Indian father’s claim for religious exemption on behalf of his daughter. In Goldman v. Weinberger,42 the Court upheld an Air Force restriction on wearing headgear indoors due to the military’s interest in uniformity, turning away a claim for exemption to wear a yarmulke. And in United States v. Lee,43 the Court rejected a religious exemption from Social Security taxes because of the government’s interest in maintaining a sound Social Security system. These all seem less than compelling state interests. As Justice Stevens reasoned in Goldman, “a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force’s military mission”44 (especially considering that the claim was to wear a yarmulke on the base, not in the field). In Lee, Stevens maintained that the Court had “overstate[d] the magnitude of the 123

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risk . . . that a myriad of other claims would be too difficult to process . . . because the Amish claim applies only to a small religious community with an established welfare system of its own.”45 (Stevens agreed with the result in these cases on a different ground, his opposition to judicial case-by-case balancing in this area.)46 If we were to rework the theory and case law, we would need to consider more closely when uniformity is necessary and when the liberty of others is affected significantly enough to override a claim of exemption. Let’s start with some baselines. The weaker the presumption of law’s legitimacy, and the stronger the presumption that sovereignty is permeable, the more government must do to justify its infringement on separately held sources of value and thereby not be required to provide an exemption. This book has argued that we do not have a moral duty to obey the law and correlatively that the state, even in a liberal democracy, does not legitimately command our across-the-board obedience to law. Government has to earn its stripes, law by law or case by case; the justificatory burden is on the coercive governmental entity. This is not an anarchistic position—the state can often prevail; rather, it is an effort at shifting the burden and making the case that sovereignty is permeable through to all our sources of value and not plenary in the state. This argument is not specific to religion; it includes all deeply held sources of normative authority. Martha Nussbaum, focusing on religion, supports these baselines.47 She recognizes the need to develop a theory, or at least some principles, for what kinds of state interest may outweigh liberty claims. This begins with her discussion of Roger Williams’ (revised) charter for Rhode Island, which required accommodation of religious practice insofar as such practice did not “disturb the civil peace,” as in causing “civil injury or outward disturbance of others.”48 Nussbaum maintains that “[l]aws of general applicability have force only up to the point where they threaten religious liberty (and public order and safety are not at stake).”49 The difficult question, though, is what counts as “public order and safety” sufficient to override a claim of liberty. Nussbaum gives some examples, based in colonial cases, in which public order and safety would be insufficient for override: “forcing Jews to testify on the Sabbath” and “forcing Quakers to remove their hats in court.”50 In the first case, we can accommodate the Jewish witness by allowing him to testify on a day other than his Sabbath; that seems a small blow to public order and safety. In the second case, if we accommodate the Quaker, then there’s no way to assure the end we want, removal of 124

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hats in court. What kind of harm to public order and safety would an accommodation entail? We must consider the question from the standpoint of the time and place, and there were reasons based in strong social norms to require the removal of hats in court. Even with deference to the extant mores, we could still argue—not too anachronistically, one hopes—that public order and safety wouldn’t have been severely compromised by accommodating the Quakers. As Nussbaum acknowledges, we must reason case by case,51 moving toward what would be more universally considered harm; maybe that would be grounded in harm to the body (and perhaps economic harm). Williams was aware of the slippery nature of public order and safety claims and also was keen to establish a high hurdle for government to meet. As Nussbaum reports, Williams “repeatedly stressed the danger of hypocrisy in making judgments in this regard”; he was alert to “the constant claim of the would-be persecutor that heretics are threatening peace and stability.”52 Nussbaum then apparently summarizes Williams’ view (without citation, so perhaps it’s more her view): “Religious liberty must therefore have extremely ample protection, and the threat to stability must be extremely evident, in terms of a manifest breach of civil peace, if there is to be any legitimacy to state infringement.”53 This makes sense normatively, if one agrees (as does Nussbaum) that citizens must have an equal opportunity to live according to sources of normative authority (religious and otherwise) other than that of the state. Still, we’ll need to do more than use words such as “extremely” and “manifest,” which make clear the high burden on the state, but don’t do much to separate what meets such a burden from what doesn’t. Nussbaum’s reference to a breach of the “civil” peace is meant to exclude breach of the peace claims made from a religious perspective alone (e.g., heresy) and to point us toward more tangible and universally acceptable concepts of harm. She excludes a “mere desire for homogeneity” as a strong enough state interest;54 this might go to the Quaker hat example. But is it so clear that homogeneity is always insufficient? What about public school uniform requirements, when officials have reasonably concluded that public order and safety are advanced by eliminating any gang or other group identification from clothing? Should a religious student—or student with a nonreligious value system—be permitted an exemption from this rule to wear an item required by her separate source of value? What if the school reasonably believes that would open the can of worms it’s trying to close, identifying students by group 125

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when the school wants the children to see each other just as fellow students? The children could still wear their identifying attire out of school, and perhaps that should be enough. It’s not clear how this case should come out; I raise it to suggest that a “mere desire for homogeneity” might sometimes be a strong state interest. The difficulty of determining what type and degree of public order and safety concerns may override claims of minority liberty is part of what leads Barry to his all- or-nothing view. Here is how he makes his case, using the two examples mentioned earlier: stunning of animals prior to killing them, and helmets for motorcycle riding. For the first, he says there are two plausible positions. One is “that there should be no collective view about the demands of animal welfare.”55 The other is “that there is a legitimate collective concern with the welfare of animals which underwrites the requirement that all animals be stunned prior to being killed.”56 To adopt neither of these, but rather a rule-plus-exemption approach, “it is necessary to postulate that, although ritual slaughter is far from being best practice [for animal welfare], it is nevertheless above some threshold of cruelty below which prohibition would be justified.”57 To maintain this position “requires a capacity for mental gymnastics of an advanced order,” Barry contends.58 For the second case, Barry makes a similar point: “Suppose we accept that it is a valid objective of public policy to reduce the number of head injuries to motorcyclists, and that this overrides the counterargument from libertarian premises. Then it is hard to see how the validity of the objective somehow evaporates in the case of Sikhs and makes room for an exemption from the law requiring crash helmets.”59 As explored above, in Barry’s view of politics, there is no room for doubt. But there is another way of looking at things. We could believe in moral truths but doubt our ability to appreciate them fully, at least sometimes. We could start from the outside in, rather than the inside out, and begin with a presumption that various comprehensive views, not just our own, might be correct. We could then begin the difficult task of seeking common ground regarding (inter alia) what type of harm we should regulate, while simultaneously recognizing the possible flaws in our position. We could yield (at least presumptively) when another position is offered, based not in whim but in an alternative, developed normative view. Part of this project would involve attributing weight, both to what we are protecting through regulation and to what is being asserted as counterpoint. Developing an appropriately reticulated theory of public order and safety, and of the interests 126

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of the countervailing views, may not be easy, but developing a theory of regulable harm and protected interests is a familiar part of our legal culture from the common law of tort to regulatory policy debates. And the difficulties here are no more or less than the difficulties Barry’s all-or-nothing position faces as it seeks to justify regulation versus the libertarian position. As to his examples: The case of the Sikh motorcycle rider should be an easy one for an exemption. Good arguments exist for requiring helmets for motorcycle riders, but they are not of the strength of arguments against causing physical injury to others. So while we won’t provide exemptions from assault and battery or homicide laws, we will bow to those whose comprehensive, considered normative views require covering one’s head in a certain way in public, even while on a motorcycle. It is not inconsistent to grant this exemption for a Sikh but not for a mere pleasure-seeker.60 The case involving animal slaughter is harder because we have to determine how to assess the interest in animal welfare (as against the Jewish or Muslim interest in ritual slaughter). On the one hand, avoiding the infliction of pain to animals seems weightier than the paternalistic interest invoked in the helmet setting. On the other hand, there is a legitimate debate about the extent to which we must consider animal welfare on a par with human welfare. Exempting ritual slaughter from the stunning rules is a plausible way of finding a middle ground between two claims of right—the claim on behalf of the animals and the claim from religious truth. For those of us who aren’t sure about either claim (in part because we’re neither nonhuman animals nor devout Jews or Muslims), the rule-plus-exemption approach makes sense. As does the Sikh helmets case, the peyote case (Smith) and another recent case involving regulation of controlled substances raise the question when, if ever, government’s paternalistic justification for a law should suffice as a compelling state interest in the face of a religious or other nomic claim for exemption. It is not inconsistent to believe that the state has a sufficient interest for the baseline regulation, but an insufficient one when confronted with an exemption claim arising from a comprehensive belief system. The key points regarding the drug use cases are that the state’s interest in uniformity is not uniform (and is often weak) and that the remaining state interest—in the health of a consenting adult who wishes to use a drug as part of a religious (or comparable secular) ritual—is insufficient (putting aside questions of addiction), if we care about permeable sovereignty. 127

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Let’s start with Smith. Part of Justice Scalia’s argument was about the risk of anarchy and the impropriety (and difficulty) of courts’ engaging in case-by-case balancing of religious against state interest. I have been attempting to rebut the anarchy point throughout the book; I address the judicial entanglement concern below. What about the strength of the state’s interest? Scalia didn’t have much to say in its favor, concluding merely that it’s rational for Oregon to regulate peyote (a hallucinogenic drug) and to insist on uniformity.61 Justice O’Connor said that the state must provide a compelling interest, but concluded that the insistence on uniformity satisfied that standard because of health concerns for the user and systemic concerns about drug trafficking.62 On both points, dissenting Justice Blackmun had the better of the argument: the state “offers . . . no evidence that the religious use of peyote has ever harmed anyone,” and there is “practically no illegal traffic in peyote,” in part because the “peyote plant is extremely bitter, and eating it is an unpleasant experience.”63 Now let’s consider a more recent case involving hoasca, “a sacramental tea made from two plants unique to the Amazon region,” one of which contains a hallucinogen, the effects of which are enhanced by alkaloids from the other plant.64 Pursuant to federal controlled substances law regulating the importation of hoasca, the United States intercepted and seized a shipment intended for religious use and threatened the church with prosecution.65 The defense was based on the federal Religious Freedom Restoration Act (RFRA), which, though invalidated as to states and localities,66 is still good law regarding the federal government. The law instructs courts to apply a compelling interest test when the government substantially burdens religious exercise.67 No constitutional issue appears to have been raised in the case; the Court, in a unanimous opinion by newly minted Chief Justice Roberts, deferred to a trial court finding that the evidence on health risks and diversion of the drug was in equipoise, and concluded that the United States had not satisfied the compelling interest test.68 The Court also rejected the government’s attempt at focusing on the general case for regulating hoasca, deferring instead to RFRA’s insistence on a more focused, as-applied inquiry.69 So far, we might not make much of this case. But the Court did two other things that help the constitutional and theoretic case for exemptions. First, it sent a clear signal that courts are capable of making case-by-case balancing judgments when confronted with an otherwise valid, generally 128

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applicable law and a claim for exemption. I discuss this point further below. Second, it affirmed that when the government provides some wiggle room away from uniformity, it will have a harder time showing a compelling interest in uniform enforcement. In the words of the Bard, the state may be “hoist by its own petard” in such cases.70 Thus, the Court pointed to the federal regulatory exemption for peyote use by the Native American Church and the statutory extension of that exemption to all American Indians, and concluded that such accommodations undercut the government’s claim that uniformity is necessary in regulating controlled substances.71 In four prior cases (applying the First Amendment, rather than a statute), the Court did not accept a dissenting or concurring Justice’s argument similar to that of the unanimous Court in the hoasca tea case.72 Nevertheless, Roberts’ use of the “hoist by its own petard” argument to undercut the government’s compelling interest is the right approach for the constitutional setting, backed by the theoretical arguments I have made for a baseline of permeable sovereignty and a justificatory burden on the state. That the government has accommodated religious or other nomic practices doesn’t mean it must, constitutionally, grant such accommodation; nonetheless, such action is evidential of the possibility of yielding, of reducing uniformity, and thus helps undercut a compelling interest claim that turns on uniformity. What about the other side of the ledger, the harm to the claimant for an exemption? Should we accept all claimed harms to comprehensive views, or at least all such claims determined to be bona fide? If so, should each have equal weight, or are there factors we can use to determine weight? Are there concerns about the ability to make case-by-case exemption decisions that should give us pause? First let’s look at the issue of bona fides, i.e., whether a claim for exemption is sincerely based in a religious or other comprehensive view. Kent Greenawalt argues that self-selection for exemptions is preferable to officials’ deciding who qualifies, adding that “[s]elf-selection is feasible only when those who want an exemption badly pay for it or make some other sacrifice that most people would not be willing to make to receive the same privilege.”73 His examples are (1) charge $1,000 to ride a motorcycle without a helmet, for those with religious claims for exemption, and maybe have a sliding scale or alternative service to deal with varying ability to pay,74 and (2) require (as the United States did) alternative service for conscientious 129

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objection to the military draft, perhaps of a longer term than for those in the military.75 This requirement of payment/sacrifice/service to gain an exemption seems based in two grounds: one, ensuring sincerity in a selfselecting regime; two, balancing social costs between those who follow the law and those who receive exemptions.76 On the first point, it’s not clear that sincerity has been a significant problem in the case law on exemptions, and perhaps officials (legislators and judges) could easily weed out the most obviously insincere claims without too much cost or intrusion. On the second point, matters get complicated because we have to find the right field for comparison. Members of minority religious groups, or those who follow other unpopular value systems, are subject to many social costs from the gamut of laws that don’t respond to their notions of the right or the good; an occasional legislatively or judicially awarded exemption is unlikely to put them in a superior position to others from an overall cost perspective. (This is putting aside the complex matter of what counts as a cost here.) Also, when we pass legislation that benefits large numbers of citizens, should we also insist on some reciprocal sacrifice from them? If one agrees with my arguments about political obligation (and perhaps also political legitimacy) and permeable sovereignty, we can see exemptions as correcting the social cost balance, without demanding more from the oft-beleaguered minority. That said, in certain circumstances—the military draft is the easiest case—requiring alternative service makes sense, in part as a sincerity screen but more importantly to ensure that burdens are shared and are perceived as shared. Laws such as the draft that insist on extraordinary sacrifice will always be foregrounded. Although often in this book I have fought seeing the world through standard foregrounding/backgrounding, this seems a good point to step back from that fight. Let’s next consider whether the burden must be on a central religious or other practice. The Justices writing in Smith said that judges should not inquire into centrality, but the Justices applying strict scrutiny did look at the substantiality of the burden.77 There’s no reason, though, that centrality should not be part of the inquiry into the nature and significance of the burden, so long as it is not dispositive. The difficulty of determining centrality is no different from the difficulty of many of the other inquiries in exemptions balancing. Perhaps we can do no better than ask courts—and, when appropriate, legislatures—to inquire into whether there’s a substantial burden on the 130

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relevant practice from the law in question. This inquiry may involve whether the practice is obligatory or central, and it may involve other questions as well, such as the long-standing nature of the practice, its connection to other aspects of the practice, and whether its contours are wellenough defined for an appropriate exemption to be crafted. Questions arising in this setting are whether courts (and legislatures, but I save the institutional comparison discussion for below) are capable of drawing these case-by-case distinctions and whether the drawing of such distinctions harms (or risks harm to) liberty, by entangling courts in the nuances of religious or other normative doctrine and by awarding exemptions to some but not other claims of conscience. Even Nussbaum, who supports the balancing approach, evinces some concerns along these lines. She explains that a 1784 bill submitted in Virginia by Patrick Henry to establish a tax supporting teachers of Christianity included exemptions for some small sects.78 She adds, “If even Henry’s list of exemptions doesn’t work well enough, we can surely see that a long open-ended laundry list of exemptions, changing every time a new sect or subsect emerged, would be quite impossible to administer, and would give rise to constant political wrangling.”79 Eisgruber and Sager put it this way: “[A] good deal of indeterminacy and ad hockery enters the picture. . . . In the absence of a clear standard, judges and other public officials may give preferential treatment to mainstream, familiar claims of conscience at the expense of more exotic ones, raising serious concerns about a failure of equal treatment.”80 And central to Justice Scalia’s opinion in Smith is a concern that it’s too hard for judges to conduct the balancing test with any consistency.81 I have several responses to this set of concerns about administrability, judicial entanglement with religious or nonreligious belief, and a potential equality problem with only some claimants receiving exemptions. First, the same concerns arise on Eisgruber and Sager’s equal regard theory. I argue below that the malleability of their approach is severe; if their theory is defensible, it can’t be on the ground that it produces outcomes with a more rule-like precision than does the balancing approach. Second, we should not be troubled by case-by-case judicial balancing. It’s a familiar task for courts well-schooled in common law methods of adjudication, where standards rather than rules often apply and interests are frequently balanced. It’s familiar as well throughout constitutional doctrine; my favorite example is the time, place, or manner cases in free 131

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speech law, where the Court engages in open-ended balancing of individual speech interest against government regulatory interest, with the cases coming down roughly evenly on each side. As we do elsewhere, in considering exemption claims we can reason from the easy cases at the extremes—a central, obligatory ritual receives greater weight than a more amorphous concern with how a law might affect practice; on the other hand, a practice harming another person’s bodily integrity is more defensibly regulated than one harming, if at all, only consenting adults. That hard cases will exist makes this area of law no different from any other. Indeed, in the hoasca tea case, the Court unanimously stated that Congress had delegated to the courts the balancing of harm to a religious claimant against harm to the public under a compelling interest test and that courts were “up to the task.”82 Third, as to the judicial entanglement issue—i.e., the concern that courts shouldn’t be getting into questions such as whether a practice is obligatory or central—if parties don’t want such judicial questioning, then they don’t have to ask for an exemption. Waiver here seems a sensible posture. Additionally, it would be appropriate for courts to ensure the sincerity of testimony about a practice, but to defer to the party’s characterization of the practice (as obligatory, or central, e.g.),83 perhaps not entirely but with only a mild judicial check to ensure some minimal rationality in how the claim is being set forth. This is similar to the approach the Court took in a case about the right of expressive association when it accepted the Boy Scouts’ claim that it had an antihomosexual policy.84 Courts, of course, must have the final say regarding the justifiability of the burden from law on a significant practice. Fourth, the concern about judicial victories for some but not other claimants should be obviated by careful judicial explanations and distinctions. Judicial attention to the substantiality of the burden—including whether the practice is obligatory, central, and otherwise connected to aspects of the belief system—and to the nature of the state interest and whether the interest requires uniform enforcement or can tolerate exceptions, should help ameliorate losses. Analogizing losing claims to each other and distinguishing winning claims would help develop a body of case law. Equality involves treating like cases alike and unalike cases unalike.85 The prior two points should serve as a rebuttal to a concern expressed by Justice Stevens in exemptions cases. The principal reason against adopting a compelling interest test in this setting, says Stevens, “is the overriding 132

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interest in keeping the government—whether it be the legislature or the courts—out of the business of evaluating the relative merits of differing religious claims. The risk that government approval of some and disapproval of others will be perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude.”86 I agree that courts should not become entangled in intragroup disputes.87 But in the exemptions setting, if we accept the (testable) good faith testimony of religious and other nomic claimants, we won’t have to delve into nuanced questions of belief. What we’re left with, then, is Stevens’ correct point that some claims will prevail and others fail. Stevens says losing parties will believe that government is “favoring” others. But “favoring” is a tricky word here. For this to be a legitimate concern—a concern large enough to keep us out of the judicial exemptions business (and Stevens wants us out of the legislative accommodations business, as well)88—the losing party would have to have a justifiable belief that the government is improperly favoring others. To which I have two rejoinders: First, courts engage in fact-intensive balancing all the time, and carefully explained judgments should alleviate concerns about improper discrimination. As dissenting Justice Blackmun put it in the peyote case: That the State might grant an exemption for religious peyote use, but deny other religious claims arising in different circumstances, would not violate the Establishment Clause. Though the State must treat all religions equally, and not favor one over another, this obligation is fulfilled by the uniform application of the “compelling interest” test to all free exercise claims, not by reaching uniform results as to all claims.89

Second, as pointed out by Michael McConnell (and others), statutes purportedly of general applicability often favor majority religious and other belief systems at the expense of minority ones, both in coverage and in whatever accommodations are included.90 As Justice Brennan wrote, dissenting in the military headgear case: What puzzles me is the implication that a neutral standard that could result in the disparate treatment of Orthodox Jews and, for example, Sikhs is more troublesome or unfair than the existing neutral standard that does result in the different treatment of Christians, on the one hand, and Orthodox Jews and Sikhs 133

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on the other. . . . [U]nder the guise of neutrality and evenhandedness, majority religions are favored over distinctive minority faiths.91

It will be a rare case in which a party will be able to show that a law on its face discriminates against a specific religion or other belief system.92 Thus, judicial exemptions (in a world in which Smith is no longer good law) would often be the only corrective to what we might deem majoritarian neglect. Without such exemptions, we have a kind of favoritism built in to the system—an improper favoritism. Finally, let’s consider the argument that exemptions should be left to the legislature. Barry puts it plainly: There is no principle of justice mandating exemptions to generally applicable laws for those who find compliance burdensome in virtue of their cultural norms or religious beliefs. . . . There are considerations of some weight on both sides [i.e., the burden on the individual and the state interest] and the only appropriate forum for casting up the balance is a publicly accountable one: a process in which the public at large is, ideally, consulted and (in the absence of compelling reasons for believing that the majority view rests on misinformation or prejudice) heeded.93

But legislative majorities are not always the best judges of how to ameliorate the impact of legislation on small, relatively powerless groups. This is why we have stepped-up judicial review for rights of political participation and for discrete and insular minorities.94 If we depart from the all-ornothing approach and admit that exemptions are sometimes justified, then courts may sometimes be the only resort for groups that either lack the clout to persuade a majority to craft an exemption or are otherwise disfavored by the majority. It’s not clear how much Barry’s “misinformation or prejudice” caveat will do to ameliorate majoritarian neglect. Furthermore, we can make litigation more publicly accountable by permitting intervenors and amici to represent various community points of view. Although they otherwise support judicial exemptions, Eisgruber and Sager argue that in some instances legislative rather than judicial exemptions are appropriate. They advance this point as an instance of judicial “underenforcement” of the Constitution, a term developed by Sager95 to explain and justify the judiciary’s abstaining from enforcing otherwise extant 134

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constitutional rights because judges “recognize institutional limits on the judiciary’s capacity to enforce” such rights.96 Eisgruber and Sager invoke judicial underenforcement to argue that cases such as Smith and Lyng “are hard precisely because they involve judgments of social value that seem more naturally to belong to the legislature.”97 Above, I discussed one take on this point: legislatures are more accountable to the public. Here, let’s consider the other take: legislatures are better situated than are courts to balance burdens and benefits. Although in both cases, after losses at the Court, the Indian groups in question received congressional accommodations,98 we should not make too much of the legislature-to-the-rescue story; the (at least doctrinally plausible, at the time) litigation might have been a key factor affecting the ultimate legislative outcomes. Moreover, it’s hard to see how the peyote case, in particular, is better suited for legislative than judicial decision-making. The relevant facts involve the nature of the controlled substance and its range of effects, its place or lack thereof in a larger supply chain that might be diverted to more dangerous uses (such as by children), and its function in (and other facts about) the ritual. These are matters as to which trial courts can take evidence and determine the substantiality of the burden and the significance of the government’s need— not for enforcement of controlled substance laws generally but regarding this drug in this setting. Sometimes litigation is a better venue than legislation for such focused inquiries. At least we can see it as a stopgap against legislative neglect, which might occur for a variety of reasons. Under Eisgruber and Sager’s equal regard theory, “minority religious practices, needs, and interests must be as well and as favorably accommodated by government as are more familiar and mainstream interests.”99 (And they argue the converse as well, i.e., if government accommodates religious interests it must do the same for secular ones.) The task is always a comparative one: Has government treated mainstream interests more favorably than vulnerable minority interests? Violations of equal regard can happen in a variety of ways; Eisgruber and Sager focus on examples in which the law permits conduct that mainstream interests deem important, while regulating “equivalent” conduct important to vulnerable minorities.100 The key is figuring out what counts as equivalent and whether the majority would have regulated in the same way had it been in the minority’s position. Here are some of Eisgruber and Sager’s examples: (1) A city requires its police officers to be clean- shaven, accommodates officers with a skin 135

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condition making it painful to shave, but fails to accommodate Sunni Muslims whose religious beliefs require them to wear beards.101 (2) To protect high school basketball players from slipping on headgear that has fallen off, a state prohibits such players from wearing headgear during play. The state permits players to wear eyeglasses with retaining straps, but fails to accommodate Jewish players with a religious need to wear yarmulkes.102 (3) The U.S. government decides to build a road through federal lands in a way that desecrates an Indian tribe’s most sacred site.103 (4) A state accommodates Catholics by providing some exemptions to alcohol regulation for sacramental wine, but fails to accommodate the Native American Church by providing an exemption to its controlled substances laws for sacramental peyote.104 Eisgruber and Sager say the first two cases involve “ready-made comparisons,”105 where government sees a health and safety concern and adjusts its regulation accordingly, but fails (or refuses) to see a religious need as cause for adjustment. Eisgruber and Sager also use language of counterfactual reasoning, contending “it is very likely that the officials who authored the regulations in those cases would have reshaped them to accommodate” the religious concerns had the officials appreciated the effect on the religious claimants.106 In the road-in-the-forest case, there is no ready-made comparison, they say, and thus we must turn to the “implicit counterfactual question lurking in the background,” namely, whether the state would have ignored similarly situated majority or well-established minority needs.107 In the peyote case, Eisgruber and Sager say they have gone beyond any “obvious benchmarks” to find the analogy between the exemptions from alcohol regulation for sacramental wine and the lack of a peyote exemption from laws regulating controlled substances.108 Eisgruber and Sager believe equal regard has been violated in the first two cases; they are somewhat less clear in the latter two cases, in part because of the difficulty of benchmarking and in part because (at least in the peyote case) the state might have a good reason for treating sacramental wine and peyote differently.109 This leads them to shunt cases such as these off to the legislature, pursuant to their “underenforcement” argument. Eisgruber and Sager’s equal regard approach is vulnerable to several challenges. First, as I have argued, there are good reasons to conclude that we do not have a moral duty to obey the law and correlatively that the state does not have a legitimate claim on our general legal compliance. Government as a coercive agent must justify its coercion law by law or 136

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case by case. If this position is correct, then the balancing approach is a good fit, for it insists that government acknowledge deeply held and considered normative views about right action and override them with strong justifications only. Second, under Eisgruber and Sager’s approach the state should prevail by showing how the relevant law produces net gains for society, even considering harms to vulnerable minority groups. Whether we focus on a law’s incomplete scope or its more patent exceptions, there is usually a plausible argument for why it was drawn as it was. Eisgruber and Sager effectively grant this point in their discussion of the peyote case. After considering the claim that Oregon violated equal regard by providing sacramental wine exceptions to some alcohol regulations but no peyote exception to the controlled substance laws, they write: “Of course, it might be possible for Oregon to justify its disparate treatment of peyote and alcohol by reference to the different characteristics of the two drugs.”110 All laws produce inequalities; by definition, a law will cover some conduct and not other conduct. Sometimes the inequality of coverage will flunk a rational basis test, and in such a case equal regard will be violated, as well. But when government can provide a rational explanation for a law’s coverage, it’s not apparent why it would ever flunk Eisgruber and Sager’s test. On the approach I favor, the state’s justificatory burden is weightier, requiring a sufficient showing of state interest in uniformity (and how such interest outweighs the harm to the claimant). Third, let’s turn to Eisgruber and Sager’s claim that equal regard is more easily and consistently administered than is balancing. This seems false, as we can see from considering how Eisgruber and Sager describe their own approach, how they apply it, and from some observations about the approach. I have already shown how they do an about-face in the peyote case, from ferreting out an appropriate benchmark (alcohol exemptions) to considering the possibility that Oregon had a good reason for the alcohol exemptions but not the peyote exemption. To figure out whether the reason is good enough to overcome the equal regard concern, we’ll need to establish a metric for weighing the state interest that looks quite a bit like the metric for weighing state interests in the balancing approach. Even more tellingly, they describe equal regard as “a public stance or posture, an attitude”; they argue that “[d]isparities in treatment between what seem roughly comparable secularly grounded interests and religiously grounded interests, or between interests grounded in mainstream beliefs 137

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and those that derive from minority beliefs, suggest a failure of equal regard.”111 They acknowledge that their approach “depends on our ability to see these interests as sufficiently comparable.”112 They admit that analogies become “less exact,” and we are left to ask “the counterfactual question of whether more mainstream concerns would have been treated more favorably.”113 And what is it that gives us confidence in making such counterfactual judgments? “Our experience in the world,” they answer.114 If one’s concern is administrability, equal regard does not seem to have an edge over balancing. From Eisgruber and Sager’s applications of their approach, we can see the lack of clear lines. I have already discussed the difficulty of application, under their approach, in the peyote case and in the road-in-the-forest case. Another good example is Goldman v. Weinberger,115 in which the Court held that the military did not violate free exercise in failing to accommodate a Jewish person’s religious need to wear a yarmulke on base (at home, not in the field of operations).116 Eisgruber and Sager acknowledge that there are “no obvious benchmarks” here; we have to “compare the Air Force’s prohibition of yarmulkes to the military’s general stance with regard to mainstream religious needs. So far as we know, there were no examples of military accommodation that provide a simple one-to-one comparison.”117 Finally, given that every law is overinclusive and underinclusive, the potential universe of comparisons for benchmarking is limitless.118 If one examines all the laws, regulations, and adjudications in a given jurisdiction, one will find a complex array of covered and uncovered behavior. It’s one thing to say that we have to argue by analogy, but, as we know from common law reasoning, we can find lots of analogies, depending on the field of comparisons and the level of generality applied. Some comparisons seem more obvious than others—e.g., allowing beards for those who have a skin condition that makes it painful to shave while not allowing beards for religious reasons—but how do we know that is the right comparison? What if mainstream religious practices are not accommodated in other areas, e.g., if the police force refuses to accommodate religious claims for wearing a beard and also refuses to accommodate more mainstream religious claims, say, for Sabbath observance? Maybe the relevant level of generality in the given police force is “we don’t accommodate any religious practices, but we accommodate all health concerns.” How do we know now whether equal regard has been violated? The balancing approach—though requir-

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ing difficult comparisons of harm—at least directly measures the interests at stake. Permeable Sovereignty and the Religion Clauses The core value of the religion clauses is the promotion of religious pluralism,119 which is one of our Constitution’s most important representations of antifoundationalism.120 Government is barred from recognizing one religion as true; this ensures against a type of concentration of power, which would blend government office with religious authority. In this way, our religion clauses are a paradigmatic instance of multiple repositories of power. They also provide a textual marker for permeable sovereignty in our constitutional order. To what extent is a matter of debate; part of my argument in this section is that we should read the religion clauses as authorizing (via legislative accommodations) and requiring (via such accommodations and also judicial exemptions) the state to disclaim plenary authority. A constitution with a Free Exercise Clause but no Establishment Clause would advance the cause of religious pluralism, but it would be consistent with a government that endorsed and otherwise supported a specific religion. So long as other religions were left alone, one could argue that religious pluralism would be maintained. The Establishment Clause can be understood as another mechanism of ensuring against foundationalism. It was not enough to protect the free exercise of religion; government endorsement of or support for a particular religion, though not directly intruding on the freedom to practice other religions, could lead to their erosion. The Establishment Clause fits snugly with the multiple repositories of power instantiated elsewhere in our Constitution, by depriving majorities of the authority to concretize power. It is an antimajoritarian device; it tells the dominant religion not to use government power to advance its mission. One might contend that although the Establishment Clause bars the actual establishment of a state religion, other types of government endorsement of or support for a religion are valid. (All agree that government may not coerce religious belief or practice; we can assume that the anticoercion principle is captured in the Free Exercise Clause.) But it is consistent with the pervasive fear of concentrated power to view the Establishment Clause as a broader kind of insurance against majoritarian tyranny. Most of the checks against constitutional foundationalism are of this variety. We insist that the President and Congress each play a role in lawmaking, we

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deprive the federal government of certain powers vis-à-vis the states, we refuse to allow a city to adopt a discretionary licensing scheme for speech—in these areas, and others, we do not rely on proof that the indiscretion in question has already trampled competing fonts of power. Instead, we set up structural roadblocks (structural even in the rights area) to ensure against accrued agglomerations of power, which do not arise in a day, but over time. The Establishment Clause as insurance against majoritarian capture of the government for religious ends makes sense in light of our other constitutional commitments. Legislative Accommodations Most legislative accommodations alleviate burdens that law would otherwise impose. Legislative accommodations of other sorts exist, as well, but we should be on guard against dominant religious groups’ using governmental arenas, such as schoolrooms and courthouses, to advance their religious agendas under the false rubric of accommodation. I canvass the nuances of accommodation doctrine, showing that the Establishment Clause has been understood, for the most part, to be favorable to legislative accommodations. Then I turn to a specific problem of accommodation, involving partial rather than complete (represented) exit—i.e., a group that wishes to live by its own religious lights in some ways, but to assume secular public power in other ways. In Lemon v. Kurtzman, the Court said that for a law to survive an Establishment Clause challenge, it “must have a secular legislative purpose,” “its principal or primary effect must be one that neither advances nor inhibits religion,” and it “must not foster ‘an excessive government entanglement with religion.’ ”121 The third part of the test has pretty much vanished; the first two parts, though subject to much critique, remain, although how they are applied varies dramatically, which makes sense given their inherent vagueness and the close vote on the Court in many Establishment Clause cases. I use the purpose and effects tests as the basic rubric for discussing legislative accommodation of religion. The Court has invalidated laws passed with a primarily religious purpose, because the Establishment Clause forbids majorities from using political power expressly to advance religious agendas. In these cases, the state forbade teaching evolution in public schools, permitted such teaching only if creationism were also taught, and posted the Ten Commandments 140

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in public schools and county courthouses.122 Properly understood, these actions were not accommodations—they did not involve lifting a burden on religious practice that the law otherwise imposed. This is true also in cases invalidating state-sponsored prayer in public schools;123 the absence of such prayer imposes no burden on students’ ability to pray either by themselves in school (without state involvement) or away from school (say, at home or in a house of worship). Although there are examples of proper accommodation beyond the burden-lifting setting,124 using state power to advance dominant religious practice risks establishment, rather than making life easier for those who wish to practice religion on their own. Legislative action to alleviate burdens imposed by law on religious practice does not similarly manifest an invalid religious purpose. Let’s start with the easiest case: Legislative accommodation of a minority religion should not be understood as advancing a religious purpose, because the majority’s purpose is not to advance the minority group’s religious agenda (if it were, I would agree there is a problem, but this is never the case). Rather, the majority is acting out of respect for burdens faced by the minority religious group, in similar fashion to how the majority acts when alleviating the burden of any minority group, religious or otherwise. What of legislative action that alleviates burdens imposed by law on religious practice generally, not merely of religious minorities? Such action is properly considered an accommodation—because of the burden lifting— and does not fall under the invalid purpose line of cases, because the express legislative goal is not to advance the doctrinal ends of the dominant religion. This kind of law also does not produce an impermissible religious effect; to see how this is so, we turn to the effects part of the Lemon test. Legislation might benefit religion along with secular practice; it might benefit religion alone, but generally (i.e., not limited to a specific sect or sects); or it might benefit a specific sect or sects. I consider these situations in turn. (1) Despite a notoriously wavering course, the Court now upholds virtually any government benefit to religion so long as the benefit extends more broadly, to secular recipients as well. The key cases involve public funds that may be used in religious school settings.125 If the funds are part of a broader package, for secular as well as religious beneficiaries, then current doctrine almost entirely upholds such programs.126 They are not defended as accommodations of religion: The legislative goal is not to free religious practice of legal burdens, but rather to aid a class of persons (say, poor 141

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students) in achieving a secular end (say, education); some (often, many) of the recipients use the funds in a religious setting (say, parochial school), but that is an offshoot of the program, not its purpose. (2) The Court has upheld legislation that benefits religion only, but broadly (i.e., not by sect). In Corporation of the Presiding Bishop v. Amos,127 the Court considered section 702 of Title VII of the Civil Rights Act of 1964, which exempts religious organizations from the rule against discrimination in employment on the basis of religion.128 Amos held that the law constitutionally exempted hiring not only for religious positions, but also for secular nonprofit activities (in Amos, a building engineer in a Mormonrun gymnasium). It’s difficult to see how the exemption lifts a burden on religious practice, and therefore difficult to see how the law is properly deemed an accommodation of religion. The Court and Justice Brennan’s concurrence in the judgment focused on the difficulty in predicting and determining which religious institutional activities implicate religious doctrine.129 Courts could become improperly entangled in determining whether religious doctrine regulates hiring for certain positions. Because of this difficulty, the Court extended accommodation beyond clearly religious positions (e.g., pulpit positions). In an easier case, Cutter v. Wilkinson,130 the Court upheld a religiononly legislative accommodation for prisoners. Part of the Religious Land Use and Institutionalized Persons Act of 2000 forbids the government from imposing a substantial burden on the religious practice of prison inmates, unless it can satisfy strict scrutiny.131 Even though the Free Exercise Clause does not require such an accommodation and the accommodation runs to religious, not secular, practice, the Court held that there is a “corridor between the Religion Clauses.”132 In the Amos and Cutter settings, government burdens religious practice by requiring religious organizations to ignore the religions of those they employ and by depriving prisoners of liberty in ways that affect their ability to practice religion. In both settings, government may lift such burdens—even though doing so is not required by the Free Exercise Clause and even though the state does not lift similar secular burdens. In a case reflecting the limits of the Court’s patience with religion-only accommodations, Texas Monthly, Inc. v. Bullock133 invalidated a state exemption from sales tax for religious periodicals. Although there was a majority for striking down the law on Establishment Clause grounds, the lead opinion was for a plurality of three Justices only. It cited a confluence of 142

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three factors resulting in the law’s invalidation,134 and helpfully explains the doctrine in this area. The sales tax exemption benefited religion only and not a larger category, did not alleviate a state-imposed burden on religious practice, and imposed a substantial burden on nonbeneficiaries (in not exempting nonreligious periodicals). According to the plurality, state action satisfying any of these three factors would be upheld, even if it failed to satisfy the other two. The state satisfies the first factor when it funds religious and secular recipients alike (although such funding is not an accommodation of religion). The third factor explains the validation of a program releasing students early from public school to attend religious school off premises.135 Such a program, though religion-only and not lifting a stateimposed burden, did not impose a substantial burden on students who remained in public school during the release-time. Finally, the law in Amos—though satisfying neither factor one nor three (since it benefited religion only and imposed a substantial burden on rejected job applicants)— satisfied the second factor, by alleviating a burden on religious practice (as qualified by the discussion above). Cutter fits here, as well. Three more points are significant. (a) As we have seen, Smith held that the Free Exercise Clause requires no stepped-up judicial scrutiny of burdens imposed by generally applicable law on religious practice. The second Texas Monthly factor—supported by Amos and Cutter—permits legislatures to accommodate religious practice by lifting burdens that law would otherwise impose. We should not see Smith and Amos/Cutter as in tension. If legislatures otherwise have appropriate constitutionally granted power, they may lift burdens on religious practice even when the Free Exercise Clause would not require such burden lifting. Furthermore, such burden lifting isn’t an establishment of religion (or risk of such), because it’s not about using state power to advance a dominant sectarian agenda. (b) There is another way of grounding legislative accommodations, even with Smith in place. One could read Smith as holding that courts institutionally lack the competence to adjudicate case-by-case exemptions; the Free Exercise Clause provides a right to religious exemptions, but legislatures and not courts must enforce it. (c) After the Court decided Smith, Congress passed the Religious Freedom Restoration Act (RFRA), imposing on all governmental units a duty to relieve people of burdens on religious practice from generally applicable law, and vesting courts with the responsibility of crafting exemptions. As applied to states and localities, Congress passed the law under section 5 of 143

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the Fourteenth Amendment, purporting to enforce the Free Exercise Clause. The Court bridled at this, striking down the state and local applications of RFRA as an impermissible use of Congress’ section 5 powers to displace the Court’s reading of the First Amendment. The holding, City of Boerne v. Flores,136 represents a combination of federalism (limits on section 5 powers) and separation of powers (the Court has the final say regarding constitutional interpretation) concerns. I discuss the separation of powers aspect in Chapter 4. For now, note that Boerne did not include an Establishment Clause holding. And RFRA stands as applied to the federal government. The Court could uphold the federal applications of RFRA (or state versions of RFRA) by relying on the second Texas Monthly factor, permitting legislatures to alleviate legal burdens on religious practice by delegating to courts the duty to craft exemptions. (Undercutting this would be the alternative reading of Smith mentioned in the preceding paragraph— that courts are incompetent to adjudicate case-by-case exemptions. Under this reading, legislatures would be disabled from delegating such a duty to courts—or at least Congress would be disabled from delegating such a duty to federal courts. Earlier in this chapter, I resisted such arguments about judicial incompetence.) (3) Although the Court has invalidated two laws benefiting some religions only (three, if you include Kiryas Joel, discussed below, although the Court said it was not invalidating the law as an impermissible accommodation), in dicta it has approved religion-specific accommodations. In Larson v. Valente, the Court struck down a Minnesota law exempting from the registration and reporting requirements of the Charitable Solicitation Act “only those religious organizations that received more than half of their total contributions from members or affiliated organizations.”137 There was no good reason for this line, and the Court determined that the law preferred some religious organizations over others; moreover, the legislative history showed legislators were aware that writing the exemption in different ways would have different effects on different religions.138 Larson is clearly correct; the justifications for the fifty-percent rule were thin. In Estate of Thornton v. Caldor, Inc.,139 the Court invalidated a Connecticut law granting a right not to work on one’s Sabbath, as applied to both public and private employers and employees. The Court’s main concern was the burden the law placed on employers and non-Sabbatarians. That the law affected private as well as public employers, forcing private 144

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employers to accommodate a specific religious practice only, makes Thornton, like Larson, an odd case with a defensible holding. Neither Larson nor Thornton addressed legislation seeking to alleviate the burden on a specific religious practice that the law (and not private parties) would otherwise impose. The Court has, in dicta, approved legislative accommodations for specific religious sects.140 Moreover, there are many instances of laws, both federal and state, enacted to benefit specific religious minorities.141 Sometimes this legislation has resulted from the Court’s refusal to require an exemption, under the Free Exercise Clause, from a generally applicable law. Thus, after the Court refused to mandate an exemption for Jewish yarmulke wearers from the military’s ban on nonmilitary headgear, Congress provided an accommodation.142 After the Court refused to block a federal road from being built through a forest area held sacred by a specific Native American tribe, Congress again acted.143 And after the Court refused to grant an exemption from Oregon’s drug laws for the Native American Church’s ritual ingestion of peyote, Oregon’s legislature (finally) came to the rescue, accommodating religious use of peyote.144 Moreover, the Fifth Circuit has upheld federal and state laws prohibiting peyote possession by all but members of the Native American Church,145 and the D.C. Circuit has upheld the federal government’s distinguishing Native American Church peyote use from claims for religious exceptions from marijuana laws.146 Thus, under current Establishment Clause doctrine, legislative action to lift burdens otherwise imposed by law on religious practice is constitutional. We must be alert to discrimination against certain sects, both in imposing burdens (the case law is clear on this)147 and in failing to alleviate burdens evenhandedly. And we must be alert to dominant religious groups’ seeking to advance their doctrinal religious ends by improperly co-opting the language of accommodation. The focus of this book, though, is on the legitimation/obligation problem that besets the state’s insistence on a rule of law-abidingness; legislative accommodations for those who adhere to sources of normative authority other than that of the state are an important part of the remedy package; in this section, I have shown that the Establishment Clause doesn’t pose an obstacle to such efforts, when the burdens lifted are on the practice of religion. I turn to Kiryas Joel, which poses a hard question about the limits of governmental efforts to aid a small religious group. The assistance did not involve 145

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lifting a legal burden on the practice of religion; nonetheless, the state sought to make life easier for a group of co-religionists who sought to alleviate difficulties encountered by some of their members because of attributes of their religious distinctiveness. In my judgment, the Court got it wrong in deeming this accommodation a violation of the Establishment Clause.148 Kiryas Joel presents the problem of partial exit; the religious community in question wanted to exist separately and live according to its own norms and to possess certain attributes of state power. In 1948, Rebbe Joel Teitelbaum founded the congregation Yetev Lev D’Satmar in Williamsburg, Brooklyn.149 Over the next twenty-five years, the Satmar Hasidic sect grew, and members started thinking about leaving the urban, heterogeneous setting for a place where they could live in relative isolation.150 In 1974, Satmar families began leaving Brooklyn for upstate New York.151 They purchased property in the Town of Monroe, and later, after a zoning dispute with the town, incorporated as the Village of Kiryas Joel.152 As of 1990, approximately 10,000 Satmar Jews lived in or around the village.153 The Satmars dress in conformance with a semiformal code,154 speak Yiddish,155 resolve most of their disputes in Satmar courts,156 and have prearranged marriages.157 Further, the Satmars educate almost all of their children in private, religious schools, with boys and girls educated separately.158 At the time of the litigation, public funds for educating handicapped children could not be used in private, religious schools,159 so to qualify for such funds, the Satmars of Kiryas Joel sent their handicapped children to the heterogeneous county schools. But “the Satmar children had a hard time dealing with immersion in the non-Satmar world.”160 “Parents of most of these children withdrew them from the Monroe-Woodbury secular schools, citing ‘the panic, fear and trauma [the children] suffered in leaving their own community and being with people whose ways were so different.’ ”161 The Satmars then lobbied the state legislature for a special school district, arguing not that religious doctrine required separation, but rather that separate schooling would alleviate the emotional trauma of their handicapped children.162 In 1989, the legislature responded by constituting the Village of Kiryas Joel as a “separate school district,” granting “all the powers and duties of a union free school district.”163 The village used this legislation to establish one school only; it provided a special education program for the handicapped children of village parents and for other Hasidic handicapped children who were tuitioned in from neighboring school districts.164 The school was formally open regardless of religion; 146

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only Hasidic parents chose to send their kids there. Governor Mario Cuomo indicated that the law was “a good faith effort to solve the unique problem” faced by the Satmars.165 But in Board of Education of Kiryas Joel Village School District v. Grumet,166 the U.S. Supreme Court held the law unconstitutional. The most powerful objection to the special school district was best fleshed out by Justice Kennedy’s concurrence in the judgment:167 [G]overnment may not use religion as a criterion to draw political or electoral lines. Whether or not the purpose is accommodation and whether or not the government provides similar gerrymanders to people of all religious faiths, the Establishment Clause forbids the government to use religion as a line- drawing criterion. In this respect, the Establishment Clause mirrors the Equal Protection Clause. Just as the government may not segregate people on account of their race, so too it may not segregate on the basis of religion. The danger of stigma and stirred animosities is no less acute for religious line- drawing than for racial. . . . There is no serious question that the legislature configured the school district, with purpose and precision, along a religious line. This explicit religious gerrymandering violates the First Amendment Establishment Clause.168

He added: People who share a common religious belief or lifestyle may live together without sacrificing the basic rights of self-governance that all American citizens enjoy, so long as they do not use those rights to establish their religious faith. . . . There is more than a fine line, however, between the voluntary association that leads to a political community comprised of people who share a common religious faith, and the forced separation that occurs when the government draws explicit political boundaries on the basis of peoples’ faith.169

I agree that the state may not draw political lines to include one race or religion while excluding another race or religion. But I disagree that New York did these things in establishing the Kiryas Joel Village School District (“the District”). If there is a spectrum from a purely private act of exit (private schools only, no state power exercised) to a purely public act of 147

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forced separation (majority takes members of the minority against their will and ostracizes them), then the question posed by the facts of Kiryas Joel is how we should respond to a case that falls at neither end. The establishment of the District did not follow from a state law applying neutral principles for the creation of school districts; rather, as Justice Kennedy put it, the legislature “had complete discretion”170 not to establish the District. So even though Kennedy assumed that New York would establish similar school districts for similarly situated homogeneous religious groups, he deemed such establishments invalid because “government may not use religion as a criterion to draw political or electoral lines.”171 However, if the law establishing the District had been the second, or fifth, or fiftieth, in a series of special laws establishing small school districts for homogeneous communities that had exited other settings, then it would be easier to see that the legislature had responded to exit rather than created it. Had the Satmars lobbied the state legislature for a special school district immediately upon (or concurrently with) incorporating as a village, instead of first trying to send their handicapped children to the heterogeneous county schools, then it would be easier to see that the legislature had responded to exit rather than created it. That the Satmars first tried the county school alternative, and that Kiryas Joel was the first rather than second, fifth, or fiftieth special school district, are distractions from the proper categorization of the case as one of recognizing minority exit. We should see Kiryas Joel as about a group that wants to live by itself and operate private institutions and to exercise appropriate public power. So long as the Satmars are willing to abide by constitutional rules when exercising such power, there should be no constitutional barrier to the state’s ceding them the public as well as private attributes of sovereignty.172 Furthermore, we should distinguish invidious separation from legislative acts that respect minority group desires.173 Thus, I resist Richard Thompson Ford’s description of the Court’s dicta—approving the state’s permitting Kiryas Joel to form as a village—as “allow[ing] government to sanction and facilitate segregation that appears to originate in voluntary association.”174 A bit of formalism is helpful here; we should distinguish the state’s recognizing partial group exit—so long as the group plays by the constitutional rules when exercising public power (including no official segregation)—from invidious discrimination by the state against minority groups (unconstitutional) and from a private group’s engaging in separatist endeavors when acting in its private capacity (permitted, with whatever 148

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caveats we might accept regarding antidiscrimination law applied to private associations).175 Judicial Exemptions If one accepts my arguments against political obligation and correlated political legitimacy (and perhaps even if one rejects my correlativity point), then there is a strong argument as a matter of normative political theory for releasing people from the grip of the law, for viewing sovereignty as permeable through to our many sources of value and not plenary in the state. How we do this is a hard question; I worked through some of the concerns in “Exiting from the Law.” Legislatures in the United States have power to craft exceptions to law, and I argued above that the Establishment Clause of the First Amendment poses little obstacle to such accommodations for religious practice. I have not offered an extended argument that the Constitution should be interpreted as requiring government to exempt from law those who adhere to sources of normative authority—religious or otherwise—separate from that of the state. Instead, I summarized three arguments to that effect.176 In this section, I argue for burden lifting as a matter of constitutional right, applicable to religious practice only. The argument states a requirement for courts, but it applies to legislatures, too, insofar as the obligation to respect constitutional rights applies to all government officials. (Legislators may also craft accommodations for reasons of principle or policy beyond constitutional right.) This argument fits with my theme but could be considered a stand-alone argument: one could reject it and accept the foregoing case for state recognition of permeable sovereignty; conversely, one could accept it while rejecting all or pieces of the foregoing. If one were a strict textualist, one could argue: The First Amendment singles out religion for two clauses all its own; one appears to require disfavoring, the other, favoring.177 This move is insufficient; what types of favoring and disfavoring remain to be seen, and one must rely on history or theory or something else beyond the text. Whether textualist or not, the argument for religious distinctiveness needs more. If one could show that religion must be specially disfavored in the lawmaking process, then one would lay the groundwork for religious exemptions, for if religious justifications were blocked from a full role in the lawmaking process, then binding the makers of such arguments to the output 149

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of that process would raise obligation and legitimacy problems. One solution would be to restore full participation; another would be to award exemptions. This second solution—exemptions follow logically from gag rules—has a few obstacles but makes intuitive sense. The predicate that religious justifications must be specially disfavored in the lawmaking process is harder, and relies on acceptance of an epistemological uniqueness of religious belief, or at least on a perceived epistemological uniqueness. First I lay out the argument for disfavoring religious justifications in the lawmaking process; then I turn to the remedy, exemptions. The argument I advance in this section—that the religion clauses should be understood as striking a political balance, offsetting a gag rule with exemptions—may be seen as one way of challenging the reasoning and outcome of the Smith (peyote) decision. Basing law on an express reference to an extrahuman source of normative authority effectively excludes those who don’t share the relevant religious faith from meaningful participation in the political process. Consider a law based on the maxim “you should love your neighbor as you love yourself”—a law enacting some form of Good Samaritan obligation, say. The legislature’s reliance on that maxim might be based on express reference to facts about human behavior and conclusions reached about the causes and effects of such behavior. In that case, the law would not be based on a source of normative authority beyond human experience. Although it may be hard to prove these conclusions and show why they should lead to a particular law, at least the door is left open for dissenters to seek to alter the law based on arguments accessible to all involved. Reference to human experience can be seen as the common denominator for political debate. Suppose, on the other hand, the Good Samaritan law were based expressly on the ground that God (or any source of normative authority beyond human experience) commands us to love our neighbors as ourselves. To be sure, dissenters might argue with the religious believers about whether they have properly construed the commandments of their faith. But at some point in this discussion, the believers might simply refer to the ultimate source of their beliefs, their faith in God.178 If the dissenters are people who do not share this faith, they are excluded from access to the relevant source of normative authority, God (unless they see the light and share the faith). Although (some) secular as well as religious beliefs may not be provable, there is nonetheless a difference between expressly grounding law in 150

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premises accessible to citizens as citizens, on the one hand, and only to those with a particular religious faith, on the other hand. When religious believers enact laws for the express purpose of advancing norms dictated by their religion, they exclude nonbelievers from meaningful participation in political discourse and from meaningful access to the source of normative authority predicating law. They force their reference out on others, disempowering nonbelievers. For this reason, it is proper to insist that law be grounded expressly in sources of normative authority accessible to citizens as citizens, not merely to those who share faith in a separate, extrahuman source of normative authority. Some scholars have suggested a law should withstand Establishment Clause challenge if a plausible secular purpose can be articulated on its behalf.179 So, for example, regardless of the reasons advanced in the legislative process, laws requiring state-led prayer in public school would violate the Establishment Clause because their only plausible purpose is religious, while laws banning abortion would never violate that clause, because protecting fetal life is a plausible secular purpose. The argument that a law with a plausible secular purpose should be upheld is often packaged with the argument that individual citizens should be able to rely on their religious values in forming political views. People taking this position stress that so long as a law has a plausible secular purpose, it can be accepted even by those who don’t share the relevant religious faith, while the religious believers may still rely in the political process on the religious values they hold most dear. I disagree. I have no quarrel with legislators’ or citizens’ relying on their religious beliefs when they form political positions or decide how to vote (for laws or representatives). The problem arises when a law appears to have been passed because of a sectarian religious concern. So, for example, it is problematic under the Establishment Clause for adherents to a religious faith to forbid abortions if the predominant, express reason is a belief that God condemns abortion. A nonbeliever is effectively denied participation in the political process because the nonbeliever has no access (without taking the religious leap of faith) to the extrahuman source of normative authority undergirding the argumentation of the believers. For the same reason, there is no Establishment Clause problem if the religious believers expressly translate their source of normative authority into secular terms, because then the nonbeliever perceives that she can participate in the debate. 151

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Requiring that laws have an express secular purpose rather than merely a plausible one might transform the legislative process in a way consistent with the dictates of the Establishment Clause. Sometimes the same laws will be passed that otherwise would have been passed, but pursuant to secular rather than religious justification. Other times, the unavailability of a strong secular justification means a law will not be passed. This transformation of the legislative process will eliminate the Establishment Clause injury of excluding nonbelievers from meaningful participation in the political process. That we see so many laws passed on the basis of secular justification, when religious justifications no doubt are stronger for some legislators, is testament not to the fact that the Establishment Clause proscription on enacting faith into law (through express, predominant argumentation) will have little real-world effect but, rather, that it is already having such an effect. Many laws will be expressly based not on a single religious or secular purpose but on an intertwined set of purposes, some religious and some secular. This is inevitable in a society in which most citizens claim to be religious. While we shouldn’t invalidate laws based only in part on expressly religious justifications, we should not accept laws predominantly based on such justifications. There is a point at which the mere acknowledgment of the religious values held by many citizens slips into the establishment of those values as the basis of law. That is the line a legislature may not cross. Thus, I would put the test this way: For a law to be upheld against an Establishment Clause challenge, the law’s predominant express purpose must be secular, and any expressly religious purpose for the law must be ancillary and not itself predominant. The Court has followed this test, though without stating it clearly and usually without explaining why express, predominant religious justification leads to Establishment Clause invalidation. In Epperson v. Arkansas, which struck down a state law forbidding the teaching of evolution in public school, the Court examined the historical context of the law’s enactment and concluded, “It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence.”180 In Stone v. Graham, the Court summarily invalidated a Kentucky law requiring the posting of the Ten Commandments on the wall of each public classroom. The legislature had required a notation on each posting stating, “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”181 The 152

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Court dismissed this as pretextual, concluding that the “pre-eminent purpose for [the law] is plainly religious in nature.”182 Likewise, in Wallace v. Jaffree, the Court struck down an Alabama law authorizing a period of silence for “meditation or voluntary prayer” because it “had no secular purpose”;183 as in Epperson, the Court supported this conclusion with references to the context of the law’s enactment, and in particular to the legislative history. Finally, in Edwards v. Aguillard, the Court invalidated a Louisiana statute forbidding the teaching of evolution in public school unless accompanied by the teaching of “creation science.” Again after examining the history of the law’s enactment, the Court dismissed the proffered secular justification of promoting “academic freedom” as pretextual, concluding the legislature’s “preeminent” purpose was religious.184 The one case in which the Court elaborated on the justification for the purpose test was McCreary County v. ACLU,185 in striking down Ten Commandments displays on the walls of county courthouses. Justice Souter explained that the state may (for example) justify Sunday-closing laws through “practical, secular grounds,” but “if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable.”186 After showing that courts examine objective legislative purpose in many settings, Souter explained that if officials “disguised their religious intent so cleverly that the objective observer just missed it,” that would be “no reason for great constitutional concern,” because in such a case “the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of nonadherents.”187 This explanation for the justification of the purpose test and description of how it works is similar to the theory I elaborated above. The difference is that Souter focuses more on the harm from divisiveness and the state’s creating insider/outsider status—a concept perhaps borrowed from Justice O’Connor’s “endorsement” analysis188—whereas my theory focuses more on the political process harm to nonbelievers from legislation based in predominant, express religious arguments. The epistemological argument for barring legislation based in predominant, expressly religious justification comes in two versions. The first, offered above, refers to religious nonbelievers’ perception of exclusion, of their lack of access to the extrahuman source of value animating expressly religious argumentation. The second focuses on religious believers. For most religious people, religious faith is different in kind 153

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from other beliefs.189 Faith in the divinity of Jesus Christ, for example, is not considered on par with faith in the belief that Roger Maris hit sixtyone home runs in a single season or that George Washington was our first President.190 One who believes these facts would rely on tracings back to people who saw and recorded history. Most Christians wouldn’t trace their faith back in this sense but, rather, would accept Christ’s divinity more on the basis of what we call a leap of faith. Granted this leap might include biblical passages (which might include reports from history), teachings of wise people, and views held by respected persons in the community. But for most religious people the leap toward theistic belief—in place of or in addition to whatever else animates their faith—is distinct in kind. In other words, religion self-consciously revels in the unsensible,191 whereas science and other sources from which people make arguments at least purport to rely solely on the observable, on what we share as humans. So even if science (both natural and social) is based—as religion is—in an important way on faith (nondeducible premises),192 the critical difference is that by its own terms, science points to the human and natural world for the source of value, whereas religion, by its own terms, points not only to the human and natural world, but also outward to an extrahuman realm. Even if religion relies in part on human experience and reason, it relies as well on something else, namely, an extrahuman source of normative authority. In sum, although it is correct to observe that the nonreligious can debate religious arguments, that secular as well as religious beliefs are based in an important sense on faith, and that religious as well as secular belief is based in human reason and experience, this position overlooks the way in which religion is distinctive. In the lawmaking process, reference to religion includes reliance on a type of normative authority—extrahuman—to which only some citizens have access (or claim to have access or appear to have access). To enact law based expressly (and predominantly) on such an exclusive source of normative authority denies the nonbeliever the ability to apprehend or affirm the source of commands under which she is being told to live. Moreover, from the point of view of many religious people, religious faith occupies a distinctive place in their lives, and it would come as little surprise to them that express reliance on such faith in political argumentation would be specially disempowering to religious nonbelievers. (As to the objection that some religions—e.g., Buddhism—don’t rely on extrahuman sources of normative authority: They haven’t been the key players in seek154

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ing religious influence on laws; those have been theists, by invoking God’s will. So to some extent my argument is nation- and practice-specific.) Now we shift from the predicate—an Establishment Clause rule invalidating legislation based in express, predominant religious justification—to the entailment—exemptions for religious groups or persons, under the Free Exercise Clause. In Chapter 1, I argued that rights of political participation are insufficient to ground political obligation (and legitimacy). However, denial of a right of political participation is sufficient to undermine political obligation and to strip the state of its claim of legitimacy. If the state deprives people of the right to vote or petition the government for redress of grievances or otherwise engage in political speech acts, it undermines the case for the bindingness of law over such persons. The same is true under the limited Establishment Clause gag rule defended above, and we should see exemptions as required to compensate religious people for the obstacle this disability poses to their participation in the democratic process. Thus, the Free Exercise Clause can be seen as providing a political counterweight to the Establishment Clause. If the latter should be read to prevent religious faith from being the predominant, express justification for law, then the former should be construed to make religious faith a ground for avoiding the obligations of law. It is easy to see how a religious minority might be burdened by an otherwise valid law. Because the incidental, unintended effects of law do not usually burden members of the majority, they are less likely to tailor laws to prevent such burdens on the minority. But does the partial Establishment Clause gag rule disable members of a minority religion? If there was no chance the minority could have enacted its faith into law, isn’t the disability ephemeral? The Establishment Clause argument advanced here might, though, affect religious minorities. The gag rule prohibits adherents to a minority religion from seeking to persuade the majority that it should enact a law because the minority faith is the true one; the same holds for attempts to repeal laws and for efforts at achieving accommodations. Although religious minorities might still seek accommodation (or repeal) on toleration grounds, the gag rule prevents their doctrinal arguments from playing a predominant, express role in the legislative process. Moreover, legislation often passes even if backed by less than a true majority; small groups may capture the legislature for particular programs, but the gag rule would be in effect here, as well. 155

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Conversely, it is easy to see how the Establishment Clause disability might harm members of the majority religion by shifting the way in which favored legislation may be enacted. But is it possible for a law to have the incidental effect of burdening the majority, thus triggering the need for an exemption? Wouldn’t the majority have prevented the enactment of such a law or secured its repeal? Again, this view of the legislative process is too simple. Laws might impose on religious practice burdens not initially recognized as such or unanticipated; furthermore, a small faction might capture the legislative process. Members of the majority religion might have insufficient legislative capital to alter such laws, which might be seen as producing good results apart from the burden on religious practice. Let me offer some examples of how the offset might work. First, consider Epperson,193 in which the Court invalidated a law forbidding the teaching of evolution in public schools. There wasn’t much of a secular argument for banning such teaching; the obvious purpose and clear history of the law was to advance the religious faith of those who believed in creationism rather than evolution. But what if the parents who supported the law sincerely claimed that their religious faith prohibited their children from being taught evolution in the science portion of their public school classes? Under my calculus, they should be entitled to a Free Exercise Clause right (subject to defeasance in the face of a compelling state interest) to remove their children from class during the portions of instruction that violate their religious principles.194 Next, assume a world without Roe195 and Casey,196 and imagine a state with a conservative Catholic majority. Under the view of the Establishment Clause advanced above, the legislature may not ban abortion if the predominant, express purpose is to reflect a Catholic view of when life begins. Suppose abortion remains legal. Now assume a law requiring doctors to treat indigent patients for all legal medical procedures, and for complex reasons of political power, insufficient votes to provide statutory accommodations. Catholic doctors whose religious faith condemns abortion should receive an exemption from performing abortions under this law, because their faith has been removed from the realm of arguments that may be advanced to outlaw abortion. As I have stressed throughout, the exemption right is prima facie only, and is subject to a balancing test, which here would include considerations such as the medical situation of the woman requesting an abortion and the availability of abortion providers. How to balance the equities in the case of pharmacists who resist dispensing 156

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abortifacent medication197 on religious grounds also depends on the circumstances, which include the availability of such medications in the community, especially for indigent women. Finally, assume the facts of Smith. Although the Native American Church may seek a statutory exemption for sacramental peyote use on the grounds of toleration (or to alleviate a legitimacy/obligation problem, which is another way of putting the same point), the church may obtain neither a repeal of peyote as a controlled substance nor a more limited accommodation through predominant, express religious justification. This is sufficient disabling, under my argument, for an exemption as of right to attach. Thus, we should understand the religion clauses of the First Amendment as striking a political balance: just as religion must be kept, to an extent, out of the legislative process, so must laws resulting from that process be kept, to an extent, out of the lives of religious groups and persons. Allowing full play for religious arguments in the lawmaking process would not solve the legitimacy/obligation problem—as we have seen, voice is a step toward the solution but not complete—but the absence of voice is sufficient to raise a serious legitimacy/obligation concern. Judicial exemptions for religious groups or persons, thus, restores a balance, and ameliorates the legitimacy/obligation problem caused by the gag rule. The Problem of Illiberal Groups Some of the comprehensive views for which the state might provide exemptions will comport with—or at least not be inconsistent with—more comprehensive liberal views. And some exemptions will involve issues more of individual liberty than of equality. But some would raise equality concerns; often (though not exclusively) these involve matters of gender, of what comprehensive liberals would consider indefensibly unequal treatment of women and girls. When, if ever, should government provide exemptions from law for such practices? I only sketch my answer here; my position is deferential to (even illiberal) persons/groups desiring to depart from law and live by their own lights. I work from the following baselines, assumed or developed by the foregoing arguments: knowing and voluntary choices (by adults) to adhere to various sources of normative authority (or perhaps to do so from felt obligation); doubt whether we (even comprehensive liberals) have reached the truest or best answers regarding the just or the good; the failure of the general case for political obligation (and correlated political legitimacy). We must 157

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balance harm caused by practices to which we might defer against the harm to the (usually) minority person/group if an exemption is denied. There’s no essentialist definition of the “private,” of what should be left unregulated (generally or for minority nomic groups). For example, we shouldn’t accept a group’s view that husbands should be permitted to beat their wives or children, for any reason. There’ll be a spectrum—from associational leadership opt-outs from antidiscrimination laws (to which we’ll defer) to physical violence (to which we won’t defer). Harder cases will fall in between. Perhaps the toughest set of questions involves what counts as knowing and voluntary choice by adults to enter and remain within a group. How we assess voluntariness should follow standard lines: duress pursuant to physical violence or threats obviates voluntariness, as does duress pursuant to deprivation of resources (or threats thereof), whether the individual remains in the community or desires to leave. But otherwise we should respect choices made by (sane) adults, even if the choices look very different from ones we would make. So I would (except perhaps in extreme instances) reject “false consciousness” as a way of circumventing otherwise voluntary choice.198 What counts as a knowing choice is complex, and there are nomic communities that educate their children in limited fashion, depriving them of knowledge with which, as adults, they would have more options from which to choose. I am agnostic, in this book, on the question whether the state should ensure that all children receive at least some education out from under the control of their parents.199 Consistent with my endorsement of the distinction between government regulation and government speech, however, I would permit (and encourage) the state to expose all of its citizens—even those living in illiberal communities—to liberal views and to options of how to live apart from one’s community.200 Martha Nussbaum puts the point somewhat more strongly when she writes, “[R]eal freedom to live according to one’s own view . . . requires protecting the spaces in which people may leave one view and opt for another, and also the spaces in which children learn about options so that they can really live their own lives.”201 Leslie Green rejects the kind of deferential posture I adopt toward adult choices in this setting.202 We’re born into groups as we are into nations, he says, so (except for those who choose to enter a group, or a nation, as an adult) there’s no voluntary choice at the outset (on this much we agree). Green continues: 158

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It is risky, wrenching, and disorienting to have to tear oneself from one’s religion or culture; the fact that it is possible to do so does not suffice to show that those who do not manage to achieve the task have stayed voluntarily, at least not in any sense strong enough to undercut any rights they might otherwise have. . . . [I]t is no part of a liberal theory that justice can be secured merely by providing for exit. If a certain social structure is unjust, it cannot become just merely by becoming avoidable.203

I reject Green’s position, for four reasons. First, whether a social structure comports with liberal criteria of justice is not the same issue as whether an adult should be permitted to choose to live in a social structure that is, by liberal terms, unjust. The group’s being avoidable doesn’t make it just, but that’s not the question here; the question is whether adults should be permitted to choose to live according to differential notions of justice (assuming the balance of harms otherwise permits such exceptions). Second, the state claims a legitimate monopoly on the use of force, and thus is differently situated from groups within the state seeking opt-outs. Accordingly, how we calculate exit costs differs between the two settings. Third, at least in nations such as the United States, exiting a group and moving anywhere within the nation is part of the fabric of our federalism and is a constitutionally protected right; exit to another nation raises a different set of hurdles. Fourth, we are asking whether an adult’s choice to remain in a group is knowing and voluntary, not so we may ground (on residence plus benefits) a moral obligation to obey the group’s norms, but rather to see whether we may ground the state’s deferring to the group’s practices (which, arguendo for current discussion, impose what liberals would consider an equality harm to the affected adult). The costliness of exit—from any setting—may suffice to undercut the case for an obligation to obey the norms of that setting, but may be insufficient to render involuntary a decision to stay put. In an impressive book addressing how to accommodate minority nomoi while remaining sensitive to the rights of vulnerable persons within such groups, Ayelet Shachar sets forth a theory of joint governance called “transformative accommodation.”204 The state and nomic groups desiring exceptions from law would negotiate over different (sub)matters, with some governance power going to the state and some to the group. Monopolies of governance would be forbidden, and the state and group would have to 159

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compete for citizens’ allegiance. Key to the project is setting up entrance, exit, and reentry options so vulnerable group members could seek to transform group practices via a credible threat of partial or complete exit.205 As does Green, Shachar rejects the more standard option from liberal theory (at least from liberal theory open to exemptions) of permitting group power with consent of adult members (including remaining in the group as consent), because choice is burdened and information on options is scarce. Much of Shachar’s argument resonates with mine, particularly the focus on competing for citizens’ allegiance and expanding the range of choice by exposing citizens to more information about options. But her solution is complex in its operation (although we can grant her the template as a thought experiment) and comprehensively liberal—the insistence that groups participate in this kind of ongoing negotiation for governance, subject to its members’ voice, exit threats, exit, etc., is a classically democraticdialogic method that fits with liberal comprehensive views but not with those of some and perhaps most illiberal nomic communities. As I have done throughout the book, here too I resist an attempt to take the high ground through a type of procedural move that seems neutral, but is not.

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Interpretation of the U.S. Constitution is often talked about in terms of “fidelity.”1 Being a faithful constitutional interpreter is thought to require following not only the text and structure of the document, but also the understanding of that document by its creators, i.e., by its framers and ratifiers (“original understanding [or intent]”) and/or by the ordinary person alive when the text was created (“original meaning”).2 And although it is justified differently, adherence to judicial precedent is also thought to constitute an aspect of faithful constitutional interpretation. Looking to the past—original understanding or meaning and precedent—is just one aspect of constitutional fidelity. Another is adhering to a hierarchical structure in which government officials follow the U.S. Supreme Court in determining constitutional meaning. We can thus see fidelity to the Court in two ways: government officials owe fealty to it as a “supreme” court, regardless of temporal considerations; officials, including the Court itself, owe fealty to its precedent. In these ways, interpreters are thought to be agents, whose job it is to follow the constitutional understandings of prior (original understanding or meaning, and precedent) and higher (the Court at any slice in time) authorities. One can see how interpretive fidelity shares important qualities with political obligation. Indeed, we might refer to claims made on behalf of prior and higher sources of constitutional meaning as claims of “interpretive obligation.” Just as citizens are asked to defer to the state regarding right action, so are constitutional interpreters asked to defer to prior and higher sources of meaning. The parallel is deeper than that. Three types of argument exist for interpretive obligation in constitutional law. One is from democratic legitimacy: the understandings of the Constitution’s creators, as representatives of the sovereign citizens (or the understandings of those citizens), bind future generations unless the constitutional text is 161

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altered; and officials might have consented to follow the Court’s constitutional readings. A second type of argument follows from status: as citizens we owe each other a duty to follow what our prior authorizing selves thought the Constitution meant; as part of their role, officials take on a duty to follow the Court’s views on the Constitution. A third type of argument focuses on systemic, consequentialist concerns: past sources of understanding (original understanding and meaning as well as precedent) bind current interpreters to enhance stability through settling matters of interpretive disagreement; the Court as the higher interpretive authority binds other government officials to achieve stability through settlement and to check the political branches. The systemic, settlement case for interpretive obligation has a parallel in the setting of political obligation, in the argument that a general rule of law-following enhances settlement and coordination and wards off selfdealing. The argument for deference to our predecessor fellow citizens’ understanding of the Constitution has a parallel in associative obligation arguments for political obligation, in their focus on what we owe each other as citizens. A role-based argument for an official duty to follow the Court also has a parallel in status-based conceptions of political obligation. The democratic legitimacy argument for interpretive obligation has a parallel in the setting of political obligation when we focus on consent and participation; these theories seek to ground political obligation in choices by authorizing actors in similar fashion to how deferring to original understanding or meaning (or to an official’s consent to follow the Court) seeks to ground interpretive obligation in choices by authorizing actors. In sum, citizens and constitutional interpreters alike are asked to rely on contentindependent reasons, based in the value of deference, rather than on their reasoning about proper action or interpretation in any given instance. But just as the arguments for grounding political obligation were insufficient, so are the purported grounds for interpretive obligation in constitutional law inadequate to support a duty to follow either prior or higher sources of constitutional meaning. In this chapter, I critique interpretive obligation to prior sources of constitutional meaning, rejecting an interpretive duty to follow either original understanding or meaning or the teachings of precedent. In Chapter 4, I consider and reject the claim that government officials owe interpretive obligation to the Court. In both chapters, I evaluate whether prima facie obligation is owed, as a general matter, i.e., whether there is a good reason (or set of reasons) always to fol162

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low prior or higher sources of constitutional meaning. If there were such a reason (or set of reasons), whether and how to consider overriding the prima facie obligation would be a separate question. If there are parallels in the basic arguments for and against political and interpretive obligation, are there similar parallels in the remedies? For political obligation, I developed a theory of permeable sovereignty, which supported representations of exit from law as a way of ameliorating the legitimacy/obligation problem. For interpretive obligation, we can’t similarly devise a theory of exit, because the constitutional interpretation I’m discussing is from the internal point of view, i.e., it’s done by participants in the constitutional order who are accepting their role as interpreters. We can, though, see a plural theory of voice in the remedial part of my interpretive obligation argument, for at its core is a contention that current voices speaking of constitutional meaning should not be bound by prior or higher voices. In this way we can see interpretive authority as permeable rather than plenary, permeable through to different interpreters (other than the Court) and sources of interpretation (other than the past). Three more items before we begin. First, some argue that legal interpretation is necessarily agentic and intentionalist, that as a conceptual matter, the interpretation of legal text involves the unearthing of the purpose or intention of the framers/ratifiers of such text (at some to-be-discussed level of generality).3 One might engage in some other project in which one fleshes out (say) the Equal Protection Clause of the Fourteenth Amendment without adherence to original understanding, but that project would not properly be called constitutional interpretation. This argument for the necessarily diachronic and intentionalist way of seeing constitutional interpretation is one I reject in this chapter. One can’t simply posit that constitutional interpretation must be intentionalist in this way; one needs an argument, e.g., democratic theory requires interpreters, as agents, to adhere to framers’/ratifiers’, as principals, understanding, or, e.g., we must tether current interpreters to original understanding or else they will run riot with their own subjective conceptions of political justice. I set forth arguments for diachronic conceptions of constitutional interpretation, and attempt to rebut each one. At the end of the discussion, the reader may either agree or disagree with those who claim legal (and in particular, constitutional) interpretation should be diachronic and intentionalist, but I hope the reader will agree there is nothing natural or definitional about constitutional interpretation suggesting it must be intentionalist.4 However, if one is persuaded by 163

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my arguments that the development of constitutional law is properly not agentic, but believes we should thus call constitutional law an act of construction rather than of interpretation, I would have no quarrel.5 Second, one might question why one who rejects political obligation should care about interpretive obligation, i.e., why should we care about interpretive authority regarding law that we have no moral duty to obey? My answer is twofold: (1) Although I draw comparisons between questions of political and interpretive obligation throughout the book, the cases do not depend on one another. They are independent arguments; one may agree with the political obligation/exemptions discussion and reject the interpretive obligation piece, or vice versa. More specifically, one who rejects the first half of this book will still be faced with questions of interpretive obligation in constitutional law. (2) Even one who accepts my political obligation/exemptions argument will still have to decide what deference, if any, to give to prior or higher sources of constitutional interpretive authority. That is, even if one rejects law as morally binding, one must still grapple with the relevant state authorities and their claims of interpretive hegemony or primacy. Third, whether interpreters should follow the purposes or intentions of the drafters and enactors of statutory text, or the original meaning of such text, is a question I leave open in this book. There are arguments that adherence to original understanding or meaning is more defensible in statutory interpretation than in constitutional interpretation: the Constitution is more open-ended and less susceptible to originalism analysis; the Constitution is primarily aspirational, whereas statutes set out more specific rights and duties; citizens must be on notice of the content of such duties before they may be penalized for a breach, and following original understanding or meaning is a way in which citizens can seek to understand statutory meaning; such a notice argument is less relevant for constitutional law, where interpretations are primarily about setting limits of official action for the present and future, not about penalizing officials for past constitutional violations; indeed, the doctrine of qualified immunity permits such actions against an official only when the official violated a clearly established constitutional right. There is obviously lots of grist for this mill, and I save for another day further examination of the possible distinction between constitutional and statutory interpretation.6

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The Authority of Constitutional Creators, and Readers Democratic Legitimacy The argument begins from a premise of individual self-government. That more literal form of self-government yields to self-government as metaphor: We elect representatives to govern; we are the principals, they the agents. Our charters of government—the higher-law charter of the Constitution or the lower-law charters of laws, regulations, etc.—are reflections of our will as filtered through our representatives. Text is not self-standing; rather, it is a window into what our representatives did, what policies/ principles they wished to advance; and what they did is what we did, we the principals/authors, we the legitimate source of power, we the sovereign people. Although originalist theories usually look to original expected applications only as evidence of underlying principles, and appreciate that such principles must be understood in current, often unforeseen, circumstances, all insist that present-day interpreters should serve as the agents (in some sense) of those who created the texts at a prior time, the people acting through the framers and ratifiers.7 These theorists tend to link an anchor theory claim with the legitimacy argument: by insisting that interpretation is about finding/discovering past intent/meaning, we reduce the opportunity for interpretive discretion and are faithful to the originating populace.8 They also place much stock in our having a written Constitution, which they claim helps to fix the originating will of the sovereign people.9 In so arguing, they often refer virtually interchangeably to text and text’s meaning.10 The democratic legitimacy theory adds that because we the sovereign people established Article V of the Constitution as the official mechanism for changing the document, if original text and understanding (or meaning) are thought at some future date to be a poor means of governance, Article V, and not another mechanism (such as interpretation untethered to original understanding or meaning, or “constitutional moments” of heightened political activity),11 must be used to accomplish necessary change. It’s important, though, not to let the presence of Article V drive the argument, and even originalists should accept this caveat. Claiming that judges shouldn’t change the Constitution—that should be left to the Article V process—is one thing. Claiming that changing the Constitution happens when one departs from original understanding or meaning is another thing. The presence of Article V doesn’t answer whether originalism 165

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is a proper interpretive approach. So the argument has to proceed in two steps: first one has to argue for originalism; then one has to argue that departure from originalist answers must occur through Article V methods.12 With this caveat in place, we can see that original understanding or meaning (as thought of intelligently) is a legitimating device. It acknowledges that texts must be interpreted (i.e., there is no plain meaning inherent in a text), but claims that the authorized interpreters should view their role as recapturing what the principals (we or we via our representatives) wanted. Rubenfeld: Becoming Free through Diachronic Commitments Jed Rubenfeld argues that the self and the nation are free only as they live up to self-chosen commitments over time. The individual person tries to understand what he ought to do given certain important lines—relations, attachments, purposes, and so on—with which he has already inscribed his life. He does not in his deliberation try to bracket or to step outside his ongoing attachments, either in the name of present desire or in the name of a present demand to consider all the reasons that apply to him. He is, rather, entrained in the task of working out the implications and possibilities of certain engagements he already has with the world.13

Says Rubenfeld, “a person’s freedom is bound up with his capacity to give his life purposes of his own making and to pursue those purposes over time. This freedom is called autonomy or self-governance.”14 The commitments we make provide us reasons to act independent of the content of the commitments; they provide exclusionary reasons, in the way rules do; i.e., they exclude (at least at the threshold stage) all-things- considered judgment about what is best to do now, and substitute the commitment (as a rule), which itself provides a reason for action. For Rubenfeld, autonomy involves giving oneself commitments and acting on them in this way.15 Just as it is wrong to think of the self as free at the current moment, and just as a proper theory of the self entails diachronic commitments, so for Rubenfeld it is wrong to think of democracy as the will of the current people and proper to think of constitutional self-government as a nation’s living up to commitments over time. A nation is not a person, however, 166

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so there is a problem at the outset: who is the subject of constitutional self-government? Rubenfeld offers a kind of definition: “If a sufficient number of individuals in a given people share the same general principles over a sufficient period of time, and if they are prepared to create and live under institutions that preserve these principles, then it becomes possible . . . to speak of popular, national commitments to these principles.”16 Rubenfeld adds that if a nation’s current members have “accepted, implicitly or explicitly, the idea of self-government over time, then they will see a strong reason to treat the commitment made [say] two years ago as continuing to bind them today.”17 Furthermore, “it is not present will that allows these past-made commitments to claim authority today. It is the fact that our self-government today is ineluctably part of a larger enterprise, going back into the past and projecting far into the future.”18 Constitutionalism requires interpretation, and the “cardinal rule of this interpretive task is that interpretation of commitments cannot be permitted to collapse into governance by the self’s present will.”19 Instead, “constitutional interpretation in written self-government must itself be a written project, an enterprise in which one text is intermeshed with another and another over a long period of time.”20 In sum: “A written constitution’s normative force depends ultimately on whether it works to recall a people to itself over time: a means by which a people re- collects itself and its fundamental commitments.”21 Thus, for Rubenfeld, individual self-government and national constitutional self-government make no sense through a prism of the here and now. A person becomes a person and a nation becomes a nation only over time, by making commitments and then by living up to them. Although the commitments may change, they are the foundational pieces of freedom, for the self and the nation.22 Rubenfeld’s theory of constitutional interpretation seeks to knit together materials from our constitutional text and history, to recapture the principles to which the framers of constitutional text were committed, and then to analyze how those principles should be understood over time. Strauss and Postema: Finding Common Ground David Strauss confronts Thomas Jefferson’s argument that the earth belongs to the living, statutes should not bind past the current generation, and the Constitution should be frequently revised.23 First, Strauss advances a kind of “confession and avoidance,”24 namely, constitutional law has 167

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developed in common-law-like fashion, avoiding the dead-hand problem by establishing distance, by accretion, from the framers and ratifiers. Later in this chapter, I discuss and then respond to arguments for diachronic fit based in the virtues of precedent. Second, Strauss contends that the Constitution’s text provides common ground for those who would otherwise disagree about matters of political justice, easing dispute resolution and providing settlement virtues,25 which we gain if we’re consistent in our textualism and not if we “routinely disregard parts of the Constitution and try to insist that only certain clauses are binding.”26 Even people who reject the claimed divine inspiration of the framers and who don’t see themselves as part of an ongoing American tradition can accept the Constitution’s text—and perhaps some measure of original meaning and precedent27—as a kind of overlapping consensus.28 Gerald Postema offers a Dworkinian integrity-based model of law, which seeks to find common ground through a culture’s legal development over time.29 Postema says that integrity is “coherence of action and of principle”; it is a “norm of unification called forth by a more fundamental social unity”; it calls on “officials and citizens to view their practice as the expression of a coherent set of principles,” which need not be a strong notion, instead merely signifying “an intelligibility, a unity of vision, under the notion of justice.”30 And “integrity is essentially historical,” seeking “to forge a common vision of justice from the past public decisions and actions of the community.”31 It “requires officials and citizens to seek common, public principles of justice in their common past.”32 The circumstances of integrity fall between utopia and dystopia, i.e., where what exists is “a sincere, reasonable, and principled disagreement about what justice requires.”33 Fidelity “takes the shape of integrity” in this setting;34 fidelity “is a matter of keeping faith with our common past as the appropriate mode of keeping faith with each other as co-members of the community to which we are committed.”35 In this setting, we can see law as legitimate insofar as it aspires toward justice and “is governed by the demands and discipline of integrity,”36 which for Postema is historical in nature, for a given society. In this fashion, Postema weaves together a Dworkinian notion of integrity, for a legal system, with a Rawlsian conception of overcoming the fact of disagreement by locating common ground.

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Precedent: Stability, Integrity and Equality, and Burkean Epistemic Conceptions As Cass Sunstein puts it:

Minimalists celebrate the system of precedent. . . . Judges may not agree with how previous judges have ruled, but they can agree to respect those rulings—partly because respect for precedent promotes stability, and partly because such respect makes it unnecessary for judges to fight over the most fundamental questions whenever a new problem arises.38

According to this argument, departure from precedent disrupts established, and to varying degrees, accepted, interpretations of the Constitution; it also disrupts seeing constitutional interpretation as independent of the makeup of the current Court.39 Sometimes the argument is that we must protect reliance values;40 sometimes, that we must avoid the risk that the Court’s overruling its own precedent will influence others to disregard precedent. Finally, some tout the efficiency in following precedent.41 Integrity and equality. For this set of arguments Ronald Dworkin is a principal figure. His conception of fit is to some extent synchronic (he argues against “checkerboard solutions”),42 but it is also diachronic. He calls his theory of law “law as integrity” 43 and dubs his theory of fit the “doctrine of political responsibility.” 44 Judges have a duty to continue rather than discard a practice;45 consistency over time is important.46 As do writers constructing a chain novel, judges have a “responsibility to advance the enterprise in hand.” 47 Common law precedent exerts a gravitational force.48 Any judicial judgment about rights must take institutional history into account;49 rights are no more exogenous to a legal system than are moral principles. Regarding constitutional interpretation specifically, we “must try to construct a coherent, principled, and persuasive interpretation of the text of particular clauses, the structure of the Constitution as a whole, and our history under the Constitution. . . . [We] must seek, that is, constitutional integrity.”50 He adds that answers to constitutional questions must “mesh well enough with our practices and traditions [as well as text] so that those answers can plausibly be taken to describe our commitments as a nation.”51 Whether we are talking about a game (Dworkin uses chess as an example)52 or law, an interpreter must protect the character of the 169

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enterprise;53 Dworkin expresses this at one point as “what it is fair to suppose that the players have done in consenting to the . . . rule.”54 Past political decisions must justify current force.55 James Fleming and Lawrence Sager advance Dworkinian critiques of originalism and affirmative arguments for a partnership rather than agentic view of constitutional interpretation. Yet, as does Dworkin, they give more than cursory attention to diachronic fit. Following Rawls, Fleming calls his theory “constitutional constructivism,” and attention to fit plays an important role.56 We must attend to “constraints of our constitutional text, history, and structure, or [to] those of our practice, tradition, and culture.”57 Borrowing expressly from Dworkin, Fleming agrees that “constitutional interpretation proceeds back and forth between extant legal materials and underlying principles toward reflective equilibrium between them.”58 We search for the interpretation “that best fits and justifies the constitutional document and underlying constitutional order.”59 Central to Fleming’s theory of deliberative autonomy is a particular aspect of the fit story—Supreme Court case law. He lists various rights that the Court has recognized and asks the reader to imagine that he is a “constitutional archaeologist who digs up” these rights, which Fleming calls “bones and shards of a constitutional culture.”60 As a constructivist, one must accept “these bones as stipulated features (or fixed points) of a skeleton that [one has] a responsibility to construct.”61 Similarly, Sager advances a partnership theory of interpretation, which focuses on freeing judges from original meaning and permitting them to engage in normative judgment, but which also devotes important attention to fit.62 He develops a justice-seeking account of our constitutional practice, arguing for a partnership between “politically active persons in those few political generations that have participated in the adoption of the original Constitution or any of its amendments” and current judges.63 Normative judgment is part of the judicial task; the “impartiality and generality of the moral perspective” puts courts in a good position to address questions of constitutional justice.64 Nonetheless, despite his trenchant critiques of originalism and his focus on justice-seeking, Sager—like Dworkin and Fleming—insists on the virtues of precedent to “check or discipline normative reflection.”65 He writes of “obligations of case-spanning doctrine,” of “precedent-respecting judicial judgment,” of “the common law protocol of adjudication” in constitutional law, and of constitutional law’s “responsibility to our constitutional past.”66 170

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Finally, Cass Sunstein refers to judges’ “respecting” precedent rather than precedent’s serving as a “constraint,” but it is clear (particularly in his critiques of the radical changes fundamentalists would bring to constitutional law) that his minimalist approach to constitutional judging requires that judges defer to precedent, even when they deem it wrong.67 He puts it most clearly when he writes, “when a decision has become an established part of American life, judges should have a strong presumption in its favor.”68 Additionally, in discussing responsibility to past cases, he uses language of integrity and equality.69 Burkean epistemic. Under this argument, understandings developed over time, through precedent (for example), deserve deference for epistemic reasons. As Burke contended, “We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages.”70 A Burkean approach to constitutional precedent has an affirmative and a negative component. The former defers to the time-tested answers of many minds; i.e., that people over time (including judges, as interpreters) have developed an understanding of what law means is evidential of what the law does mean, or should mean.71 The latter is focused on overcoming the biases and limited wisdom of any present-day interpreter. As Justice Kagan said during her confirmation hearings to the U.S. Supreme Court, precedent is a “doctrine of humility. It says that even if a particular justice might think a particular result is wrong, that that justice should say to herself, maybe I’m wrong.”72 Anchor Theory A common argument for diachronic fit, and thus for a kind of interpretive obligation, is similar to a common argument for political obligation: without such fit, interpreters will be unanchored, left to their own devices, and a kind of anarchy of subjectivity and self-interest will reign. The concern with anchoring is deemed especially important for unelected life-tenured federal judges. Anchor theory still needs to explain why specific past sources—text, original understanding, original meaning, or precedent—are relevant as anchors. But the driving force is the need to take constitutional interpreters (who will often, though not always, be federal judges) away from their own philosophical predilections. 171

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Debunking Prior Authority Against Democratic Legitimacy Theory There are several problems with basing a defense of diachronic constitutional interpretation in legitimacy theory. First: Bracket for now the problem of binding today’s interpreters to the understandings of persons long dead. Still, it would be appropriate for the past to bind in this way only if the sovereign people from the time of the Constitution’s framing (or the framing of the various amendments) ceded self-government to the new constitutional order or were otherwise properly bound by such an order. But just as there are no satisfactory arguments for the political obligation of any individual citizen, even in a liberal democracy, so are there no satisfactory arguments for the political obligation of the people extant at the time of the Constitution’s framing. Part of this claim is the—familiar but no less important for its familiarity—point that the original Constitution was framed and ratified through a process that sharply limited the right to vote. Second: Let’s examine the dead-hand problem of such concern to Jefferson.73 In a letter to James Madison, Jefferson asked “whether one generation of man has a right to bind another”74 and answered no, arguing that “the earth belongs in usufruct to the living.” A generation may bind itself by law, Jefferson argued, but may not bind future generations. “By the law of nature,” he contended, “one generation is to another as one independent nation is to another. . . . No society can make a perpetual constitution, or even a perpetual law. The earth belongs to the living generation.”75 As to the rejoinder that each generation may repeal laws it dislikes, Jefferson responded with classic public choice arguments about the difficulties of enacting (or repealing) legislation—inertia, checks, factions, etc. Jefferson did not explain why laws should not bind past the current generation, nor why constitutions should be frequently revised. “The earth belongs to the living” is lovely prose, but not much of an argument. One could support Jefferson’s position with a theory of political obligation based in political participation. If one has the opportunity to influence lawmaking or constitution-making—through voting, speech, press, and petition rights—then there is a plausible case (or at least a starting point) for binding one to the outcomes of such laws or constitutions. (I rejected the sufficiency of political participation as a ground for political obligation in 172

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Chapter 1, but appropriate voice/participation is necessary to political obligation, and we can assume here arguendo that it would be part of a set of conditions supporting political obligation.) But laws or constitutions made by people who died ages ago cannot bind by virtue of the opportunity current folk had to influence such laws or constitutions. Implicit in Jefferson’s argument is the contention that old laws or constitutional provisions do not properly bind, today, at all. There are various possible rejoinders to Jefferson, and I explore them in my discussions of Rubenfeld and Strauss below. For now, though, note that I am borrowing Jefferson’s argument rather than using it literally. My concern at this point in the argument is not whether laws or constitutional provisions rightly bind across generations. My focus now is on whether understandings of constitutional provisions by the long-dead creators (or subjects) of such provisions properly bind current constitutional interpreters.76 The argument from democratic legitimacy answers yes, for (1) we the sovereign people then were properly bound by the Constitution then ratified, and (2) we the sovereign people today are properly bound by the original understanding or meaning of the Constitution. Above I explained why (1) does not hold. Here my argument is that even if we assume arguendo that (1) holds, (2) does not hold, for Jeffersonian reasons. There are serious concerns with binding today’s subjects to the constitutional understandings of long-dead people, since none of us today had the opportunity to influence the framing or ratification of—and therefore the original understanding or meaning of—the 1787 Constitution and the critical Civil War amendments. This argument from the opportunity for political participation should suffice to reject the argument from contract theory—that We the People made a contract in 1787 and are today bound by its original understanding or meaning. The corporate analogy won’t work—shareholders may be bound by prior promises of the corporation, but shareholders may buy and sell shares. The analogy to future citizens is that they may emigrate, but, as I argued in Chapter 1, this comes at so high a cost that the choice not to emigrate may not be taken as tacit consent for the actions (or understandings) of the public corporation that is the government. And even though we bind individuals to understandings from the time of contracting, an individual is the same person over time,77 whereas today’s citizens are not the same persons as the citizens in 1787. Moreover, as Larry Simon argues: 173

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people do not generally lock themselves into practically unchangeable agreements that will bind not only themselves, but future generations as well. It seems considerably more likely that to the extent they viewed themselves as bargaining over a contract, the framers and originators of the Constitution were much more concerned about the present and the near future than about the twentieth century and beyond.78

Finally, contract theory doesn’t entail originalism; there may be good reasons for the constitutional text to bind future generations without their being bound as well by the original understanding or meaning of that text.79 Third: The first two points should suffice to turn away the claim that the concept of democratic legitimacy (or popular sovereignty) requires originalism. And although, as I suggested at the beginning of this chapter, the meaning of law when enacted may indeed be central to statutory interpretation, for constitutions, and for our Constitution in particular, we can, and should, think differently. Although parts of our Constitution state clear rules, other parts are written in broad, vague, abstract terms. There is nothing apparent from the face of such terms or the structure of the document suggesting that their meaning should be fixed at any point in time (and nothing about the concept of democratic legitimacy that requires it). Rather, we may think (and have often thought) of such terms as aspirational, as setting forth a rough guide for a new frontier of self-government, and as leaving details to be worked out over time. As I said earlier, it doesn’t matter to my argument whether we call these workings-out interpretation or construction. Keith Whittington argues, though, that if they’re construction, they should be done through politics and not by courts.80 My discussion in Chapter 4 of the relationship between the Court and other government officials suggests that courts have a role to play in fleshing out constitutional terms, though perhaps less of a role than demanded by more mainstream theories of judicial review. I do not in this book develop an affirmative theory of how such fleshings-out should occur. Not only may we think of much of our constitutional text as aspirational, but also we have done so throughout our history. This ground has been covered by others, but the simple point is that constitutional understandings have changed over time without Article V amendments.81 Some scholars make this point as a matter of descriptive, or sociological, legiti174

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macy, i.e., that whatever one thinks about the normative debate between originalists and others, the American people have accepted a process of developing constitutional understandings that has little to do with fixed historical meaning.82 An aspect of this argument is the claim that constitutional interpreters (usually referring to judges) follow social movements and political currents and thus reflect a kind of institutional or sociopolitical restraint.83 Examples of changed constitutional understandings without formal amendment include viewing the Commerce Clause as permitting congressional regulation to respond to an ever-increasing interconnected web of commercial activity, the Equal Protection Clause as forbidding state-sponsored segregation and to extend beyond racial discrimination, and the Free Speech Clause as forbidding government from banning speech because of its offensiveness. These understandings hardly follow ineluctably from text, nor are they easy case derivations from original understanding or meaning. They represent detailed specifications from a rough template. As a conceptual matter, this has been inevitable, given the levels of generality problem inherent in applying abstract language to changing circumstances. Whether one is grappling with text alone or with its original understanding or meaning as well, there is no nonnormative way of selecting the level of generality for rendering the text workable in specific cases. The debate between Justices Brennan and Scalia in Michael H. v. Gerald D.84 exemplifies the problem. The state rejected a father’s plea to visit his biological child, because the child was born when the mother was married to another man. What right is at stake: the right of an adulterous natural father or the right of any biological parent (or some other way of putting the liberty claim)? How do we go about answering this question? One must reason about how to conceptualize and then apply constitutional “liberty”; there is no neutral or natural answer. The same is true of any attempt to understand abstract rights language throughout our Constitution. Below I say more about the levels of generality problem as it besets originalists; here the point is that because of such a problem, we have inevitably developed constitutional meaning (or content or application understanding, it doesn’t matter to my argument what we call it) in different ways during different times and places. Such an aspirational, developmental understanding of how we give meaning to our Constitution fits with the discussion in Chapter 4, which argues that the Court has no interpretive hegemony in constitutional law, 175

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but must share the terrain with all government officials and citizens. This complements the work of those who stress that allegiance to our constitutional order has been gained in part by the practice of fleshing out open text in dramatically differing social circumstances over many generations.85 Fourth: My arguments so far have resisted the claim that constitutional interpretation necessarily involves unearthing framers’ intent, have posed a few core legitimacy concerns with tethering today’s citizens to understandings of those long dead, and have set forth the affirmative case for viewing constitutional interpretation unbound by original understanding or meaning as a better fit for the kind of republic we mean to be and have been. Now I turn to problems with doing originalism. Observe first that although most (though not all) originalists now claim to be seeking original meaning rather than original understanding or intent, the two inquiries are closely linked. To seek the intentions of the framers (and/or ratifiers), one would be looking to intentions made known as opposed to privately held, and such intentions, whether expressed broadly so that the public would have been aware of them at the time of ratification or to a smaller audience (perhaps just those drafting the document or voting on ratification), would be evidence of original meaning in an objective sense (even if not dispositive on the question).86 Now let’s turn to three levels of generality from which we might do originalism. We could look most narrowly, at how the framers expected the text would apply in concrete circumstances. We could take nothing more concrete from the abstract provisions than an instruction to determine what concepts such as “freedom of speech” and “equal protection” really encompass. Or we could seek some intermediate level of generality. The latter appears to be the position of most originalists today, but first I will explore the narrowest and broadest options. On the narrowest, expected applications originalism, we would ask questions such as: How did the framers (and/or ratifiers) (here, of the Fourteenth Amendment) expect “equal protection” to apply to statesegregated public schools (to resolve Brown) or to efforts by government to aid African Americans (to resolve affirmative action)? If we discover determinate answers from our historical search, then those answers would be locked in as a matter of constitutional meaning, unless we could overcome them via the cumbersome Article V amendment process. There doesn’t appear to be much support for this approach,87 and for good reason: 176

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(1) Original meaning matches up better with the popular sovereignty argument for originalism; if the consent or acceptance of the sovereign citizens at the time of the framing is what generates bindingness, then how the ordinary person would have understood a constitutional provision is a better test than what framers or ratifiers intended by the words they wrote or ratified.88 (2) There were many framers and ratifiers; whose original expected application would matter? How would we account for differences among such expectations? Can we establish an impersonal objective original expected application?89 (3) Looking to expected applications opens the door to manipulated intention, seeking to bind future interpreters.90 This is similar to the concerns Justice Scalia and others raise about using legislative history in statutory interpretation.91 (4) Taken to the extreme, expected applications originalism would commit us to poor consequences. For example, if we had to enforce a “quarantine” against what was then thought to be a communicable disease but is now known not to be, we would be faithful to original application understanding, but would be doing something indefensible under today’s science.92 (5) Expected applications originalism can’t be the anchor of discovering constitutional meaning it purports to be, because developing a workable analogy between past circumstances and today’s requires a normative, political theoretic overlay. Even if we could identify something from the framing era that looks to be a specific state practice understood to be banned by a constitutional right (or permitted in the face of such a right), we would still have to identify which circumstances from that time mattered to understanding the ban or permission, and whether today’s circumstances are properly analogous. “Given a set of practices, it is always possible to find a rule that is consistent with all of them, as long as anything counts as a rule. The problem . . . is that there are too many candidates.”93 To cull the relevant from the irrelevant, we must advert to “some criteria independent of practices”—criteria of “political morality”—and thus lose the purportedly neutral historical tether this kind of narrow originalism seeks.94 (6) Finally, that the framers wrote many specific rules in the Constitution but also included important abstract provisions suggests an originating desire for later interpreters to understand such provisions at a level of generality higher than original expected applications. One might call the broadest version “moral realism originalism,” which is barely originalism at all. Here’s the way Ronald Dworkin puts it: “We must begin . . . by asking what—on the best evidence available—the authors of 177

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the text in question intended to say.”95 Dworkin rejects original expected applications as the touchstone of the inquiry; instead (using the Eighth Amendment as an example) we can conclude that the authors meant to prohibit punishments “that are in fact cruel,” because it’s fair to assume that they used words as people normally do—“they used abstract language because they intended to state abstract principles.”96 For Dworkin, historical fit points (including precedent) matter in answering questions such as whether a specific punishment is in fact cruel.97 And a constitution writer’s expectations of how a certain term would apply is relevant when interpreting what the term means, adds Dworkin.98 But such application expectations aren’t binding, and the ultimate inquiry is determining what punishments are in fact “cruel,” or what government treatment of persons in fact denies them “the equal protection of the laws,” and so on.99 Dworkin agrees that framers’ semantic intentions are important in one narrow way— they help us understand terms of art. Some instances of this involve natural kinds; e.g., if the word for what we today think of as “elephant” used to be “giraffe,” we must know that to know what the text was referring to. Or consider Dworkin’s example in describing “semantic originalism”: “If ‘cruel’ meant in the eighteenth century what ‘expensive’ means now, we would misunderstand the Eighth Amendment to read it as condemning [what we understand to be] cruel punishments.”100 Other instances involve terms that the framers would have thought captured specific legal referents; Dworkin gives the example of “ex post facto” applying to criminal sanctions only.101 But originalism in these two ways—abstract moral textual principles show that the framers meant to set down abstract moral principles, and a check to screen out term-of-art mistakes—leaves no room for the authoritativeness of any other sort of original understanding or meaning. (And we should be careful about the “ex post facto” type of example; if the framers knew that “ex post facto” plausibly could apply to civil as well as criminal sanctions, but failed textually to set down their narrower understanding, we should hesitate in constitutional interpretation to be bound by the unexpressed intention.) The debate in today’s scholarly community is whether some intermediate level of originalism is justified. I will set forth some proposed formulations, and then contend they are murky, there is no good way to select the right level of generality, interpreters will necessarily incorporate principles of political morality in determining the specificity/generality of the originalist inquiry, and the pull from the original expected applications side 178

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remains strong, with all the problems that approach entails. Michael McConnell says that we should interpret the terms of the original Constitution as the people of 1787 “meant them,”102 adding that we should “seek the level of generality at which the particular language was understood by its Framers.”103 Steven Smith maintains that we should “respect collective decisions actually made by the political community.”104 Michael Perry contends that “the norm (or norms) that ‘We the people’ established, in putting a particular configuration of words into the [constitutional text], is the norm they understood (or would have understood) their words to communicate.”105 John McGinnis and Michael Rappaport write that theories of original public meaning “interpret the Constitution according to how the words of the document would have been understood by a competent and reasonable speaker of the language at the time of the document’s enactment.”106 Michael Stokes Paulsen says we should look to the “objective public meaning the words and phrases . . . would have had at the time of their enactment.”107 Referring to the time of framing, Justice Scalia says we should attend to the “existing society’s assessment” of the constitutional term in question.108 Keith Whittington explains that the “critical originalist directive is that the Constitution should be interpreted according to the understandings made public at the time of the drafting and ratification.”109 Finally, consider the efforts of Jack Balkin, a liberal constitutional theorist who has nonetheless advanced a brand of originalism. According to Balkin, “we do not look to history because we are bound by the original or intended purposes of either the framers or the ratifiers. We look to history because we want to know what standard or principle the text they produced enacts.”110 Says Balkin, “When we interpret a written Constitution, we work on the assumption that the persons who had the authority to make the constitutional text law were trying to achieve something in choosing some words over others. The goal of interpretation is to try to find out what that achievement is.”111 Finally, Balkin echoes Dworkin in arguing that “the principles underlying the constitutional text should be as general as the text itself.”112 These formulations sit uneasily between expected applications originalism—where we are obligated to follow the specific applications intended or understood to be entailed by constitutional text—and Dworkin’s moral realism originalism—which is really textualism plus an attempt to locate truths of political justice (which Dworkin calls “political morality”), as bounded in some way by fit points over time, but not specifically by 179

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original understanding or meaning. How the framing generation “meant” a term; how its language was “understood”; what its “collective decision” was; what norm did they “understand their words to communicate”; how the language “would have been understood”; what was the “objective public meaning”; what was the existing society’s “assessment” of the terms; what “understandings were made public”; what were they “trying to achieve”—these formulations ask us to do some kind of historical work to interpret often abstract morally laden constitutional terms, but without the anchor of specific expected applications. The problem, as often in constitutional interpretation, is selecting the appropriate level of generality. McConnell and Balkin make a potentially promising point by saying we should interpret at the level of generality of the text, but unless this takes us back to Dworkin’s approach, it requires us to determine something more specific about what the framing generation understood (say) “freedom of speech” to . . . mean? encompass? exclude? include necessarily? What principle it stands for . . . as a principle as abstract as “freedom of speech” but more specified? The possibilities are endless. This is not the point about evidential problems inherent in these sorts of intermediate-level inquiries; that they exist undermines the anchor theory claim for originalism, but perhaps that’s less of a problem once originalism acknowledges that such problems may be large113 and pins its case more on the legitimacy claim.114 Rather, the point now is that there are many ways to pose the originalist evidential inquiry, many options for framing the search for original understanding or meaning. How we peg the appropriate level of generality can’t be determined by text itself, but rather must follow from a separate, normative theory of reading constitutions (or our Constitution, or a particular part of our Constitution). The level of generality that any interpreter selects—and the concomitant bits and pieces of original understanding or meaning that seem to support a principle at that level of generality— must be dictated in substantial part by other political theoretic commitments of the interpreter (constrained as they always are by the political society in which one lives).115 I have no problem with this; it is essential to interpreting a constitution such as ours. But it slips the legitimizing anchor that originalism is supposed to provide. Perhaps originalism can get away with conceding that its anchor may not be so firm; it can’t get away with the detachment from the will of the originating people that necessarily occurs when we see that today’s political theoretic decisions will dictate the historical inquiry. 180

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Thus, the process of selecting an intermediate level requires incorporation of principles not dictated by history, and to most originalists, a high level of generality looks too Dworkinian-philosophic. For these reasons (though perhaps not expressly so), originalists pull back in the direction of expected applications. A good example is Steven Calabresi and Livia Fine’s discussion of section 1 of the Fourteenth Amendment.116 They peg the meaning of “due process,” “privileges or immunities,” and “equal protection” to more specific historical usages that they claim animated the adoption of these constitutional terms. But although context in this way helps us get at meaning, it isn’t the same thing as meaning, and Calabresi and Fine treat it as if it were. Background understandings can help us avoid anachronistic error—e.g., “domestic violence” in Article IV, section 4 refers to riots and insurrections and not to spousal assaults.117 Otherwise we should treat background context as we treat all other materials relevant to understanding a constitutional term in our polis, both diachronically and synchronically—as relevant, but not binding. That the framers wrote general rather than specific terms in section 1 of the Fourteenth Amendment means that we should read them as standards, not as rules; saying that more specific rule-like background understandings constitute the binding meaning of these abstract terms is a current (mistaken) interpretive choice, not dictated by historical facts. And the more specific we get, the more we return to problems discussed above with doing expected applications originalism. Against Rubenfeld’s Theory of Diachronic Commitmentarianism Rubenfeld focuses on the rule-like qualities of commitments: on their preempting our reasoning about what action to take now, on their providing a reason that excludes other reasoning. I don’t disagree with Rubenfeld’s focus on projects that we develop over time; whether or not it’s correct to say such projects give us freedom or autonomy, it’s correct to say they give us a sense of self, of meaning, of happiness. Critical to Rubenfeld’s argument (and the extension to the polis), though, is not just our capacity to develop and carry out projects over time; it is also our making and keeping of commitments, even if at the time we keep them such action appears counterpreferential or irrational. This seems wrong. Consider that there are several rational explanations for our making and keeping commitments: because others have relied on us; to signal others that they can trust us; to develop a commitment-keeping disposition to restrain ourselves 181

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from impulsivity we believe will be harmful to us; to experience satisfaction from the creation of a project over time. To achieve the ends that commitment-making and -keeping can bring, especially the one about satisfaction from projects over time (which seems most closely connected to Rubenfeld’s conception of freedom or autonomy), we need not see commitments as providing exclusionary reasons for action. Throughout the book, I have been arguing against this sort of move—arguing that following a rule for its own sake, for the benefits it provides by preempting reasoning about what is best to do or about how to interpret the Constitution, is usually not defensible normatively or even possible. Here, I adopt the same strategy. Let me focus first on “not defensible normatively.” There may be good reasons to set up a commitment as a rule of thumb, as guidance, as a heuristic device, but not as a preemptive rule. We don’t continue project A at time B merely because we promised ourselves to do so; rather, we continue it because it gives us a sense of fulfillment, of meaning, of (perhaps) freedom, and we continually choose the project for these reasons (and others mentioned above, involving signaling to others and their reliance). When these content-dependent reasons run out—when the project appears to us simply as a project, a commitment, without any of the other benefits—then there is no reason left to continue the project. We continually reevaluate the good the commitment is doing; we don’t defer to the commitment as an authority, either theoretical or practical.118 In related fashion, I am doubtful about Gerald Postema’s argument that we depend on our successors to help achieve our goals and projects, which give our lives “significance precisely by the fact that they transcend the limits of . . . biological existence.”119 Whether my satisfaction from undertaking a project during my lifetime depends on my descendants’, business partners’, etc., carrying through on the project is a complex psychological question, with the answer varying among persons. The argument that we should respect the past to assure those alive that respect will be paid to them later turns on speculation about the importance to those alive that their projects be continued after their death. Also, respecting the past today is no assurance that those in the future will pay similar respect to us.120 Now let me turn to “or even possible.” The strongest argument for adopting a content-independent approach to personal commitments is to prevent the future self from making errors, from acting irrationally. This 182

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is sometimes referred to as precommitment. The constitutional version of precommitment theory holds that we establish higher-law constitutional principles to prevent ourselves from adopting, in the future, lower-law measures harmful to our deeper purposes as a nation.121 For individuals, Ulysses’ tying himself to the mast and addiction scenarios are the paradigms.122 These are the strongest types of case for a content-independent understanding of commitments, for the prior self is trying to prevent the future self from engaging in content analysis that may seem to outweigh the commitment but will leave the person worse off. But not all of one’s life choices are commitments of this sort. We must distinguish which decisions of the prior self are like Ulysses’ tying himself to the mast and which are not. Drawing that distinction involves some action by the prior self (e.g., marking the action or series as departure-proof) and some action by the current self (e.g., evaluating whether that decision of the past self was mistaken, which could include changed circumstances). There’s no way around the intrusion of current normativity here. The past self can make mistakes just as the current self can, and only the current self can analyze, today, the situation. This argument should sound familiar; it is similar to the point I made in Chapter 1 in responding to Raz and Schauer in the discussion of consequentialist theories of political obligation; related too is the point about comparative error costs, which I made in that section as well. Might it be possible to set up a mechanical checking device, over which the person making the commitment has no future control? Such an external monitor123 would at least solve the problem of the supposedly bound self’s having to making normative judgments, which undermines the point of the commitment. Even if such a purely external, mechanical monitor is possible, since we are trying to help the self behave in a maximally rational way over time, the following questions would arise: how does the mechanism assess changed circumstances?124 how does it check for error by the initial, committing self? how do we know the external monitor is better than the future self in doing these things? Rubenfeld says his theory of commitments—both personal and civic— is not of the precommitment type. A precommitment changes the “costs, benefits, or feasibility” of one’s later options through an external or causal mechanism, maintains Rubenfeld, whereas a commitment “works in the absence” of any such mechanism.125 He argues that commitments, not precommitments, impose obligations, constitute exclusionary reasons 183

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for action, and give us reasons to act regardless of whether they maximize our welfare.126 That precommitments adjust the rationality calculation seems correct; but it’s wrong to say that precommitments don’t constitute obligations or exclusionary reasons for action. Perhaps they are meant to preempt current all-things-considered decision-making in a different way from non-rationality-maximizing commitments, but they are still meant to exclude, or preempt, the future agent’s consideration of an unbounded set of options. In any event, my discussion—regarding both the individual and the state—addresses both precommitments and commitments, as Rubenfeld describes them. Whatever one thinks of Rubenfeld’s theory of the person, the extension of that theory to the republic has its own problems. As Jon Elster put it in reflecting on the development of his own ideas, “I do not think I fully understood the extent of the disanalogy between individual and collective self-binding. As in many other cases, the transfer of concepts used to study individuals to the behavior of collectivities, as if these were individuals writ large, can be very misleading.”127 To begin with, it requires the same sort of move that theories of associative obligation require, and is faulty for similar reasons. In Chapter 1, I argued that even if we have obligations to persons with whom we associate, it is a metaphor, and not actually true, that such obligations extend to our fellow citizens throughout the republic. Similarly, even if Rubenfeld is correct that individuals become free by living up to commitments made over time, the United States of America is not a person but a collection of persons, all of whom alive today were not alive when the Constitution or the Civil War amendments were written and ratified. Even if we accept arguendo Rubenfeld’s argument that the constitutional “self” extends over time, we should nonetheless reject the extension of either the autopaternalism128 precommitment theory or a commitment theory not based in precommitment welfare maximization. Regarding the former, there are two problems: (1) Such a strategy depends on setting up a monitor external to the self to check the self, but no relevant checking device is external to the society establishing the constitutional order. Thus, the points about the normative judgments the current self must make apply here, as well. (2) If we accept arguendo the possibility of a mechanism for binding our collective future self, this would do little to resolve the classic hard cases of U.S. constitutional law. Such cases don’t involve attempts by past selves to prevent their future selves from making errors of judgment 184

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that the past selves can delineate as such. Rather, they typically involve matters of deep philosophical disagreement, in the past and the present; the phrasing of the Constitution in abstract, morally laden terms, and the difficult cases the Court has decided in winding its way through such terrain, are evidence that ours is not a system of mechanical current imposition of past commitments regarding weakness of will. As for extending the notion of commitment as obligating without necessarily maximizing welfare, Rubenfeld argues that perhaps today’s citizens will have accepted, implicitly or explicitly, the idea of self-government over time, and, even if not, our self-government today is part of a diachronic enterprise, extending from past to present to future. It’s not clear how these moves help Rubenfeld’s argument. Express acceptance by (all? a majority of?) citizens would establish the foundations for a commitmentarian polis (although could such acceptance bind future persons?), but we’re never going to see this (in Chapter 1, I rejected Margaret Gilbert’s version of this argument), and implicit acceptance is an oxymoron. It’s just as weak as the parallel argument for implied consent to establish political obligation. Rubenfeld’s assertion that whether citizen acceptance exists doesn’t really matter because self-government today is “ineluctably part of a larger enterprise”129 restates the key claim—that we can borrow for a theory of national self-government from a (contestable) conception of individual freedom over time. Furthermore, diachronic theories of freedom and constitutionalism obscure the responsibility of the interpreter, who is living and breathing and reading and writing and interpreting now, not in the past. As David Luban puts it, “it falls to us (who else?) to pass judgment on the traditions into which we are born, and to determine whether a multi-generational project should be tended and cultivated or abandoned without regret. . . . [R]ationalist inquiry into the justification of traditions is inescapably our lot.”130 And, as Joseph Raz observes, we don’t normally defer to practical authority; with regard to the dead-hand problem of constitutionalism, the timeless authority of law must depend on content, not on authorship.131 This is not to say interpreters must reinvent the wheel. As I discuss below in “Room for Fit,” there are good reasons to pay attention to past sources of constitutional meaning, even to establish some rules of thumb. But these rules should remain unmasked as rules of thumb, transparent to the substantive goods they serve so they can be exposed as disserving those or other values. 185

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To some extent, my disagreement with Rubenfeld is about foreground and background, or, differently put, about burdens of proof. I agree with Rubenfeld that history matters in constitutional interpretation. Rubenfeld agrees with me that current judicial interpreters of the Constitution must exercise normative judgment. Here is his clearest statement on this: Constitutional interpretation is irreducibly normative. The foundational paradigm cases give a decisive structure to constitutional law, but this structure must still be elaborated, and in this elaboration there is no escaping the exercise of normative judgment. Nor is there a reason to want to escape from such judgment, which is a necessary part of giving any commitment meaning.132

The difference between Rubenfeld’s theory and mine is that Rubenfeld insists that history gives a “decisive structure” to constitutional law, based on his argument that constitutionalism is about a nation’s developing and living up to its commitments over time. Rubenfeld foregrounds the ways in which constitutional interpreters are bound, and backgrounds the current normative judgments. He says a commitment provides “a reason to act,” such a reason is “weighty,” and commitments exert “strong normative force . . . over time.”133 In other words, Rubenfeld contends that constitutional commitments are prima facie binding, requiring good reasons to override. This is similar to arguments offered for political obligation in placing the burden on those challenging law and in seeing commitments (like law) as providing content-independent reasons for action. My discussion in Chapter 1 resisted the state’s claim that law (as a rule) provides a content-independent reason for action, and argued for shifting the burden to the state to justify each law or application of law. My arguments here, in parallel fashion, resist seeing commitments as prima facie binding and as providing content-independent grounds for interpretation. Viewing constitutional interpretation as a necessarily current and normatively laden task brings us back to Jefferson’s argument that the earth belongs to the living, which I am adapting for this critique of diachronic constitutional interpretation. Rubenfeld raises two principal objections.134 First: He claims Jefferson’s position dictates that even a generation is too long, i.e., that only the will of the people at the present moment may legitimately bind. Because it is impossible to run a political society this way, we are meant to conclude there’s something wrong with Jeffersonian logic. But I am borrowing from Jefferson’s argument to do two things: to 186

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critique reliance on the constitutional understandings of long-dead people; and in Chapter 4 to suggest that Court constitutional interpretations rendered during the current generation are an important factor for government officials to consider when deciding whether to challenge the Court. In both instances, one can borrow the underlying concerns Jefferson was expressing without reaching the reductio ad absurdum position that no law or understanding of law may be valid beyond the moment of enactment. We can see these issues as on a spectrum rather than as an on/off switch; the closer law and understandings of law are to the current generation, the more legitimate they are in terms of opportunity for political participation. Second: Recall Jefferson maintained that “by the law of nature, one generation is to another as one independent nation is to another.”135 Rubenfeld suggests that on Jefferson’s argument there’s no reason to privilege our law or Constitution over those of other nations. This could be recast as a concern that a Hartian predicate for the existence of a legal system— continuity—is lost on Jefferson’s argument. And consider Madison’s related point, responding to Jefferson’s letter: “Would not a Government, ceasing of necessity at the end of a given term, unless prolonged by some Constitutional Act previous to its expiration, be too subject to the casualty and consequences of an interregnum?”136 One answer is that we can have an ongoing official acceptance of secondary rules, which can include a structure for revision (of both secondary and primary rules), and thus continuity. Accordingly, we can have revision(s) of a constitution, piece by piece, and still have the same constitutional republic over time. If we consider Jefferson’s extension—the entire constitution expires and needs replacement every generation137—then the problem is more complex. Still, if a legal culture has a secondary rule recognizing this and officials accept such a rule, then the continuity problem is solved. That we see ourselves as united in a geographic space and accept secondary rules are social facts. That doesn’t require the meaning of secondary or primary rules to be based in diachronic commitments. Against the Common Ground Conception of Diachronic Commitments David Strauss and Gerald Postema advance common ground arguments for diachronic constitutional interpretation. Current interpreters often disagree as to outcome and reach their interpretations from different 187

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comprehensive views; deferring to what past actors wrote and to precedential development, as well as to some measure of original understanding or meaning, can help these heterogeneous current interpreters find a common reference point, and this has settlement virtues. There are several problems, though, with this common ground argument. First: In Chapter 1, I rejected John Rawls’ natural duty theory for political obligation, maintaining that his arguments improperly favor centripetal over centrifugal forces. My primary concern with the common ground argument for diachronic constitutional interpretation is similar. Insisting that citizens who hold divergent comprehensive views find common ground, regarding interpretive as well as political obligation, improperly privileges adherents to views that can more easily (or at all) accept the outcomes of such common ground. Many comprehensive views will rest easily in the overlapping consensus, or in diachronic fit points such as original understanding or meaning and precedent. But some comprehensive views cannot abide the outcome of the overlapping consensus, or of the diachronic fit points. Rawls’ next move, as we have seen, is to invoke a doctrine of reasonableness, which ostracizes persons who hold comprehensive views that cannot fit within the overlapping consensus, i.e., that are unreasonable. Similarly, in the setting of interpretive obligation, Strauss says that common ground theory relies “on arguments that should appeal to all reasonable members of the community.”138 To refuse to accept the common ground argument, says Strauss, is to be impermissibly sectarian.139 Likewise, Postema focuses on locating a “common vision of justice,” deeming fidelity a matter of “keeping faith with a common past.”140 Common ground theory in the setting of interpretive obligation asks citizens who hold divergent comprehensive views to find in past sources common reference points for resolving contemporary interpretive dilemmas. It cannot countenance comprehensive views that reject the overlapping consensus and the common ground (which includes the various sources of diachronic interpretation), i.e., that Rawls might deem unreasonable. Second: Even if we were to assume arguendo that it is good to focus in constitutional interpretation on finding common ground to resolve otherwise intractable disputes, one would need a separate argument to justify locating common ground in the texts, understandings, and interpretations of people who lived and died long ago, before the lifetimes of anyone now alive. As I argued above, there are serious, and well-known, problems with this position. 188

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Third: The common ground argument is meant to be a tool for reaching settlement, for avoiding interpretive chaos, and thus is connected to the stability argument for following constitutional precedent. But just as the  systemic, consequentialist virtues of settlement are insufficient, as a wholesale matter, to ground a moral duty to obey the law, they are similarly insufficient, as a wholesale matter, to ground interpretive obligation to prior sources of constitutional meaning. Settlement obscures the responsibility of the actor who must make the current decision (whether to obey law, or how to interpret law); it thus risks inverting the authority structure, fetishizing an external source as an authority; and it cannot achieve the normalcy it claims, because of hard cases that will arise (and even in drawing the hard/easy case line), which in the interpretive obligation setting exposes the congeries of interpretive choices the current reader must make. Moreover, the settlement argument works better when we care more about drawing a line than getting the answer right; but this won’t do for “the more important cases,”141 where we don’t deem the choice arbitrary. Fourth: As a descriptive matter, common ground among differing comprehensive views is difficult to locate. Strauss recognizes this when he acknowledges that if we could identify with past generations through ethnic or religious tradition, then common ground would be easier to find. But then he says that we have to avoid a sectarian justification for intergenerational fidelity, and concedes that since most of us don’t have a descendent or other familial/sectarian connection to the framers, we can’t develop an argument that would parallel how ethnic or religious groups develop their traditions.142 Fifth: As Strauss also concedes, common ground as a settlement tool is of limited use, because so little is settled in our constitutional culture, in part because many of the hardest questions of constitutional interpretation involve abstract constitutional text.143 Sixth: Although Strauss argues that we can get settlement benefits only if we’re consistent in our textualism, that we may not “routinely disregard parts of the Constitution and try to insist that only certain clauses are binding,”144 he soon retreats from this position of wholesale deference. He says that “when adherence to a position rests on conventionalist grounds, the extent of adherence cannot outrun the justification.”145 Following convention is justified, says Strauss, “only so long as the costs of unsettlement . . . are greater than the benefits that might come from the departure.”146 189

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Similarly, Postema acknowledges that integrity must “balance respect for past practices with a more self-critical attitude which I will call regret,”147 which is meant “to encompass the capacities to acknowledge and take responsibility for mistakes.”148 But here Strauss and Postema virtually concede the entire argument. The point of having a common ground/settlement theory is to avoid having to engage in retail, case-by-case, examination of whether the virtues of deferring to past actors outweigh the costs of outcomes jarring to modern sensibilities. Strauss concedes that deferring to common ground, for settlement purposes, will sometimes be unjustified, too costly; Postema admits that we need a theory of mistake to separate practices worthy of our allegiance from those that are not. They have turned deference to past sources into reference to such sources, as a kind of factor in our interpretive considerations. As I explain below in “Room for Fit,” this is unproblematic, but it does not advance settlement virtues very much. (Strauss and Postema might say theirs is a claim for prima facie interpretive obligation, open to override, and that I am double-counting the concerns raised by the inevitable intrusion of the justificatory. But, as I maintained near the end of Chapter 1, when confronting a similar argument regarding political obligation, a case-by-case openness to override in an argument from settlement substantially undercuts the virtues of the prima facie claim as well.) Against Precedential Obligation Stability. As was the case with political obligation, the argument for precedential bindingness based on the need for stability is speculative. Departure from precedent is departure from a kind of rule, and any departure from rules raises the specter of instability. But what sort of instability would occur with departure from precedent? How would it occur? What would the costs be? Alexander and Schauer give an example of how departure from precedent might cause instability. If the Court were to go back and forth in its interpretations of how race may (or may not) be used in legislative districting, that could “create uncertainty about who will represent whom, where elections will be held, and how elections will be organized.”149 I agree that if such overruling of precedent were to cause confusion among voters, that would be an important factor for the Court to consider in deciding whether to overrule a precedent. More likely, though, responsible officials could communicate to voters which (perhaps new) district they are in as a 190

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result of reapportionment, which candidates are running for that district, where their (perhaps new) polling place is, etc. We should put aside the risk of contagion argument, i.e., the concern that if the Court departs from its own precedent, courts and other government officials will stop paying attention to Court precedent. Other government actors might consider themselves more strictly bound by Court precedent than the Court itself does, and if they do not, it might be for reasons other than the Court’s loose attitude about its own precedent. Furthermore, risk of contagion arguments are always speculative; that one actor views a rule or law as nonbinding or loosely binding will not necessarily, or even likely, cause other actors to take a similar view. What other instability are we concerned with? There might be some public perception that constitutional law is not mechanical, that it turns substantially on the political theories held by a current majority of the Court; but that hardly seems destabilizing. It might, in fact, encourage the people and other government officials to begin developing their own political theories, relevant to the constitutional law issues of the day, to challenge the Court. Such dialogue could be healthy, rather than anarchic. Then there are reliance arguments. Precedential bindingness should turn on reliance values, though, only where investments cannot be undone,150 or cannot be undone without substantial cost, or where precedential overruling with retroactive application would render illegal behavior legal under extant precedent.151 Thus, if a court issues a common law ruling permitting a certain type of contract, and millions of dollars are spent in reliance on that ruling, and then the court says, “oops, we goofed, those contracts are invalid,” it would make sense to say that reliance values cut against departure from precedent with retroactive application.152 But if the Court overrules a rights-based constitutional precedent—say, a speech right or a substantive due process right—although such a ruling might change the balance of power between government and citizens, permitting more (or less) government regulation, a weaker sense of reliance is in play here when we say government and the people must alter their behavior. Reliance becomes a more psychological point—one has come to expect a certain regime of powers and rights—but it is not clear why such reliance should carry much weight if the current Court is persuaded the prior holding was a mistake.153 I don’t mean to downplay the displacement costs that might occur if, say, Roe and Casey were overruled and women’s reproductive choices were altered dramatically, thus affecting 191

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every other aspect of their lives, as well. But if Roe and Casey were wrongly decided, that the government could now protect fetal life and women might no longer have access to legal abortions would be a correct state of affairs, and the resulting systemic costs would be acceptable ones. If Roe and Casey are to be maintained, it should be on the merits, not because they are extant precedent. Regarding free speech, Alexander and Schauer disagree with the thrust of my argument here. They contend that “uncertainty about free speech rules may produce excess deterrence of a constitutionally protected communication, so that a well-settled suboptimal free speech rule may be preferable to a less settled but superior rule because of the confidence it generates and the speech it thus frees.”154 They say that this is an argument about settlement for its own sake rather than about reliance, but the essence of their claim is that our speech is freer when we can rely on stable precedent. Let’s first separate out the concern that a changed interpretation would be applied retroactively in a way that would impose a penalty; the Court should apply new interpretations prospectively or through injunction. If people know this is the case, and know that a new regime of free speech interpretation could not impose retroactive penalties, then it’s hard to see how people would be (improperly) deterred from engaging in speech activity because of the possibility that the Court’s First Amendment jurisprudence might change, and hard to see how we free more speech via the (concededly) erroneous free speech rule. Finally, precedent has efficiency value, to be sure, but using precedent as a factor (rather than as prima facie binding) can retain much of that value, and that value is lessened to the extent that the practice of adhering to precedent is itself unstable. Despite the Court’s occasional efforts at setting forth a calculus of stare decisis,155 its own practice of following or not following precedent is anything but firm.156 Integrity and the rule of law, and equality. Ronald Dworkin, James Fleming, Lawrence Sager, and Cass Sunstein do not rely on originalism, but they still insist that current interpretation must fit with past sources of constitutional meaning, i.e., that precedent matters to some significant degree. Although none believes Court constitutional interpretations may be altered via Article V amendments only—all believe precedent may be overruled in some circumstances—none believes precedent is merely a factor. For all of them, as for most scholars who deem fit important in consti192

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tutional interpretation, interpreters must defer to precedent, not merely take it into account (although such deference is overrideable). This is enormously important. It is similar to the distinction in administrative law between Chevron deference157 and so-called Skidmore deference.158 Under Chevron, courts must defer to reasonable agency constructions of statutes so long as such constructions do not contravene clear congressional intent, even if the courts would have reached different conclusions de novo. That is real deference (although there are vast complexities regarding how it works). It turns on a content-independent reason; under Chevron, courts defer because of an institutional reason (the greater and more legitimate policymaking capacity of agencies) that instructs courts not to examine content or substance de novo. Under Skidmore, courts look at agency constructions, listen to what the agency has to say, but then determine the meaning of a statutory term de novo. This is not real deference. We should call it “Skidmore listening” rather than “Skidmore deference.” I have five points to make about the Dworkinian integrity/equalitybased conception of fit: (1) Although Dworkin invokes the analogy of a chain novel, in which each subsequent author seeks to continue the plot and maintain the characters, so that what results is a novel and not just a pastiche of chapters, with constitutional interpretation we are dealing with a document, and an interpretive practice, seeking nation-specific principles of political justice that will properly empower and constrain government officials in decisionmaking that has direct effect on the lives of the principals—the citizens. Why should we think constitutional interpretation must flow, must fit from case to case? A novel should make sense as an aesthetic whole; constitutional interpretations are about a developing plot only if one has a particular aesthetic view about constitutions, specifically, about our Constitution. But does our Constitution really have any less integrity if, in a particular area of law (say, the scope of Congress’ Commerce Clause powers), the case law looks somewhat erratic, rather than developing in a wholly linear path? If the plot of the Commerce Clause is discontinuous, should that be a cause for concern, or, depending upon the reason for the discontinuity, perhaps explicable, and justifiable, by a variety of circumstances? Whether or not we apply a theory of mistake to the specific area of constitutional doctrine in question—for a theory of mistake is meant to deal with disruptions in an otherwise continuous line—it is not important that constitutional law fit together as a novel does. We should get principles 193

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of political justice right, at least as right as we can given whatever we deem appropriate endogenous constraints of our constitutional order, which need not be constraints of diachronic fit. It is wrong to import concerns with aesthetic integrity, from the novel or other art forms, into principles of constitutional governance. Similarly to Dworkin, Anthony Kronman seeks to develop a theory of continuity in law by borrowing from outside law, and once again the conception of diachronic integrity is distorted in the translation. Claiming to be advancing a Burkean conception, Kronman argues that human beings are “cultural creatures as well as biological ones.”159 “Two features of the world of culture are particularly striking. The first is the cumulative, or potentially cumulative, character of its achievements. . . . The second is its destructibility.”160 We must keep up culture or else it will deteriorate.161 Still discussing the world of culture, Kronman says we are “bound, within limits, to respect [the past] for its own sake, just as we are obligated to respect our parents for a reason that is anterior to all considerations of utility or rights.”162 The past includes precedent in law.163 There are several problems with Kronman’s argument. First, although Kronman builds on Burke’s observation of how human beings are different from flies(!),164 Burke’s arguments for honoring the past are based on the (purported) wisdom we can find from practice. Kronman’s case for following precedent is not epistemic. Second, it is hard to see how Kronman’s argument is about honoring the past “for its own sake.”165 The core of the claim is that if we do not keep up culture, then it will deteriorate, and that culture is worth keeping up. These are consequentialist arguments. To be sure, Kronman suggests we have no choice but to keep up culture. If that is true, it is hard to see how we have an obligation to do so (can one be obligated to do something one can’t help but do?); even here, we would not be honoring the past “for its own sake,” but because of a kind of species imperative (as distinguished from a moral one). Third, Kronman’s argument as a defense for following legal precedent (a) depends on an is-ought move that is not properly defended (if it could be), and (b) depends on a symmetry between the cultural world and the world of law that seems hard to defend (and that Kronman does not do much to defend). (a) Kronman makes a point about what it means to be human. He says the attitude that we are custodians of the past “is itself constitutive of our membership in the uniquely human world of culture”;166 his argument is about “status,” not “will.”167 From these descriptive points 194

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about human beings living in time—having a sense of the past and the future as well as the present and creating culture that extends over time— Kronman argues that we have an obligation to keep up the chain and continuity of culture.168 But what if we prefer to live for the present? What if, for example, pressing concerns of economic well-being cause us to destroy (or significantly modify) landmark buildings to construct housing for low-income persons? Kronman may be right that unless we pay attention to keeping up culture, over time it will deteriorate. That is a far cry from demonstrating we have an obligation to do so. (b) Kronman never adequately defends the proposition that our (purported) obligation to sustain culture over time extends to an obligation to follow precedent in law. The argument appears to be that law is a product of human culture over time, and thus that failing to respect precedent is tantamount to failing to respect a key aspect of our humanness, our living in and over time. But unlike other aspects of culture, which (I grant now for argument’s sake) need diachronic tending and development, law is a practical aspect of culture, meant to serve specific ends of justice. The past may have something to teach us about law’s dominion, but law’s past (as embodied in, inter alia, precedent) has no worth apart from the ways it enables law’s ends today, ends that sound in rights and consequences. The point is similar to the one I made about Dworkin’s chain novel analogy: There might be aesthetic reasons for novels to make sense over a set of chapters; and there might be reasons based in a proper theory of what it means to be human and what role culture plays in our humanness that require cultural outputs to be nurtured over time; but sustaining legal continuity over time has no such aesthetic or cultural value. (2) Although our constitutional order has been continuous, our constitutional law is better seen as a patchwork, rather than as neatly fitted together. In The Anxiety of Influence, Harold Bloom uses the term “misprision” to refer to a poet’s misreadings of influential texts, misreadings in the ser vice of freeing the poet from the grip of the past.169 Much of American constitutional law, as set down in Court opinions, as well as much of American constitutional theory, displays a different sort of misreading. Rather than misreading to break from the past, American constitutional interpreters often misread to create a false illusion of continuity, to free themselves from the grip of the present, employing the (false) idea that their interpretive acts are legitimate only insofar as they are bound to prior authors, i.e., to creators and to precedent. 195

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Here are some examples. In Morrison v. Olson,170 the Court upheld a statute severely restricting presidential removal power over an independent counsel who exercised executive powers only. The Court cited prior case law permitting such restriction only for officers who wielded executive power plus either legislative or adjudicative power, but then, with scant analysis, extended the doctrine permitting such a restriction on presidential power. In Roe v. Wade, the Court cited a series of cases having nothing to do with destroying a fetus, and then concluded that the right to privacy established in such cases “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”171 And in Brandenburg v. Ohio,172 the Court announced a new, quite speech-protective test for political advocacy of unlawful action. It twice cited Dennis v. United States,173 apparently as support, although Dennis had a narrow view of free speech whereas Brandenburg has a broad one. Our constitutional text may be fairly continuous, but our constitutional law is not. It is marked by dramatic shifts, by (mostly) real advances in the name of justice. These advances have not been made by dead people, nor by living people in the name of the dead. They have been made by each generation, as the people, the political actors, and the Court have grappled with moral concepts such as “equal protection of the law” and “freedom of speech.” The responsibility for interpreting such concepts has rested in each interpreter, despite the many ways in which interpreters have sought to deflect responsibility, often in the name of an erroneous conception of constitutionalism as prior law. (3) Dworkin argues that past political decisions must justify current force. Fleming relies on a similar conception when he argues that constitutional interpreters have a “responsibility” to construct readings of the Constitution from “stipulated features,” “fixed points,” i.e., Court precedent.174 This is true in an important, but limited, way. Rule of law concerns require that criminal or civil sanctions be based in reasonably clear rules—set down by statute or regulation—so people can know how to order their conduct and so officials are somewhat circumscribed in their enforcement discretion. Common law is more complex, but here, too, it is more justifiable to hold a party liable in (say) tort damages for violation of an established principle than to make up a new principle and apply it retroactively.175 To this extent, Dworkin is right that past political decisions must justify current force. But constitutional law is mostly about determining the powers and limits of officials, not about determining primary conduct 196

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rules. Most important constitutional law cases can be decided in a surprising fashion, changing understandings from the past, without risking the jailing or fining of citizens without proper notice. And the Court has developed a doctrine of qualified immunity to ensure that constitutional tort damages are assessed against a government official only if she engaged in what a reasonable official would have understood was a constitutional tort at the time of the action in question.176 (4) Given the first three points, it isn’t clear what work equality does in a theory of diachronic interpretation. It’s one thing to insist that current citizens be treated equally under the law, including the case law. But how important is it that, say, an abstract constitutional provision such as “freedom of speech” be construed the same today as it was fifty years ago? If government was permitted to jail political dissidents for general political agitation then, must government be permitted to do so now, even if it’s clear now that a broader principle of permissible protest is warranted? One might say we need a sophisticated theory of mistake, and the point about equality is that it should have some weight in constitutional interpretation. I have no problem treating fit as a factor for judicial consideration, without particular weight, as I explain below in “Room for Fit.” But Dworkinian scholars go further than this, deeming equal treatment of litigants over time more weighty than just a factor. However, unless we’re talking about jailing or fining citizens for behavior they reasonably believed legal—dealt with above in the notice–rule of law discussion—it’s not clear why equality over time should have much weight, especially since the interesting cases will involve principles we believe need adjustment. We should not make substantive constitutional principles turn on concerns with adjudicative retroactivity; we can prospectively overrule erroneous decisions if that’s the way to get the law right without imposing substantial hits to reliance interests.177 (5) The equality argument doesn’t logically support precedent as binding. If two cases are similar and come out differently, then one result is mistaken, but precedent insists that the second case follow the first. David Lyons puts the point this way: Treating like cases alike could be said to implement “a logical constraint of moral consistency.”178 The doctrine of precedent holds that “if a court has attached legal consequence to certain facts because it regards that as appropriate for legal purposes, then that judgment deserves some measure of respect.”179 But the constraint of moral consistency does not have this conservative bias; “we are free to change our moral opinions honestly.”180 197

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Burkean epistemic. Recall that the Burkean argument relies on a claim for precedent’s truth value in getting interpretation right, and on a claim that precedent is needed to check judicial bias and overcome lack of wisdom. Neither aspect of the Burkean position, however, can support binding current constitutional interpreters to precedent, even as a prima facie matter. Regarding the affirmative, epistemic value of precedent, i.e., the claim that it is a source of true interpretive answers: Accreted case law might just as easily represent bias piled upon bias,181 or understandings based on social facts that have changed,182 or a view of the world distorted by systemic factors (such as who was eligible to vote or who was not yet protected by antidiscrimination law and thus able to function as a full citizen in the economic marketplace). Moreover, the current generation may have more information and hence be more likely to reach correct answers than prior generations.183 As Madison put it, in defending an extended republic against the charge that this is a new idea: Is it not the glory of the people of America that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?184

Thus, accreted case law might represent all sorts of things; whether it represents the best interpretation of a constitutional provision depends upon multiple factors, which need examining. This need to engage in presentday examination of whether precedent provides truth value or needs to be discounted undercuts the negative, checking value aspect of the Burkean argument, as well, for that part of the Burkean case depends on precedent’s ability to screen current interpreters from just the sort of contentdependent considerations I am suggesting inevitably (and properly) are part of the interpretive task. Certainly current interpreters should pay attention to precedent, in part as a check against their own biases or limited wisdom (this is rule-sensitive particularism for interpreters); but this is not the same as saying they must presumptively follow precedent. Paulsen and Lawson on constitutional precedent. From constitutional text and structure, Gary Lawson and Michael Stokes Paulsen argue that no constitutional interpreter (including the Court itself) is today bound by 198

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what the Court (or any other constitutional interpreter) said, in the past, the Constitution means.185 This tracks Paulsen’s argument for pluralism among constitutional interpreters: All federal officials (legislative, executive, judicial) must swear to uphold the Constitution; the three branches of government are coordinate, none dominant; therefore no one branch has hegemony over constitutional meaning.186 I share Lawson’s and Paulsen’s views about interpretive pluralism, and their argument against precedential bindingness in constitutional law. But my critique of precedent differs from theirs in at least two ways: (1) They deem the argument started and finished with their points about the oath and coordinacy; I believe that arguments for precedent such as stability, common ground, integrity, equality, and the epistemic value of practice to be not merely prudential, but also of constitutional import, and therefore that such arguments must be confronted directly. That is, constitutional law is about more than the text and structure to which Lawson and Paulsen point; it must address, as well, consequentialist and nonconsequentialist arguments about the working and the ends of our constitutional order. In his most recent treatment, Lawson gives ground a bit, conceding that epistemological deference to precedent might be valid in a narrow set of circumstances.187 (2) Lawson and Paulsen believe there are objectively right answers to questions of constitutional law, which any constitutional interpreter has the capacity to ascertain.188 In this fashion, they get around the argument that constitutional meaning is often murky and that precedent can provide anchors and commonly accepted solutions. I believe constitutional meaning is often murky (at least regarding the capacity of actual constitutional interpreters, taking no position on whether there are objectively correct answers to all questions of constitutional interpretation). Thus, I must confront (and have in the text) arguments that precedent can serve as an anchoring device and as a way to find common ground among divergent interpretations. Against Anchor Theory Anchor theory claims that even if affirmative arguments for looking to the past to determine constitutional meaning are insufficient, current constitutional interpreters must be tethered, constrained from reasoning about political justice, especially if they are unelected, life-tenured federal judges. Text plus original understanding or meaning can provide an anchor. So can precedent, although the democratic legitimacy argument is less clear than for text plus original understanding or meaning. 199

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Although there is no quibble about what anyone ever understood some parts of constitutional text to mean, most constitutional cases—at least most that gain public attention—are hard because text is unclear. Furthermore, witness the debates on the Court and in the academy on key questions of constitutional law regarding original understanding or meaning.189 It is hard to see reference to abstract text and to murky original understanding or meaning as doing much anchoring in the way of providing a rule that can cabin more open-ended reasoning. The same is true of precedent, at least in many important constitutional cases. Some argue that constitutional creators or interpreters will be more likely to take good care with their textual or interpretive work if they know that such work will be heeded by future interpreters.190 But as Mitchell Berman well observes, so long as constitution writers/ratifiers know that some respect (even if not of the binding sort) will be paid to original understanding, they will have an incentive to work carefully; and most people discount the distant future heavily, so such creators would usually be concerned only with current and near future deference to their understandings.191 We could make both points about the work of current-day constitutional interpreters, as well. Moreover, most of our constitutional tradition, both text and case law, leaves much open texture and makes it hard to bind future interpreters. Additionally, pressure points, or textual fissures, exist in most anchor theories, revealing that the pull of justification is strong. For example, Schauer’s and Hart’s arguments for an easy case/hard case line,192 or a core/ periphery line,193 cannot withstand the pressure of the justificatory theory needed to establish these lines and their appropriate applications. Similarly, even a plain meaning advocate such as Justice Scalia recognizes an “absurdity” exception,194 thus exposing the normative judgments entailed in all cases, not only the ones in which the exception kicks in. Dworkin, normally alert to the justificatory pull, at times refers to paradigms195 or “what everyone knows”196 as ways of anchoring interpretation, all the while knowing such anchors cannot hold fast.197 Furthermore, anchor theory depends in part on the argument that the interpretations of unelected, life-tenured federal judges are problematic in terms of legitimacy, but are less problematic if anchored outside the judges’ reasoning about political justice. But federal judges are not philosophers who alighted on our nation’s soil and assumed interpretive authority. They are placed on the bench via a transparently political process involving the 200

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President and the Senate. Their jurisdiction is controlled by federal law. And Congress has the power to impeach them.198 So although they are not subject to case-by-case check (at least the Court is not; lower courts are subject to the review of higher courts) and although they do not have to stand for election or reelection, federal judges are still politically checked in three important ways, which should be sufficient to buttress their democratic legitimacy. Additionally, as I argue in Chapter 4, constitutional interpretive dialogue among government officials can serve as an important constraint on federal judges. Finally, anchor theory depends on a compelling case for the bindingness of the anchor—for diachronic theories, either original understanding or meaning, or precedent—which, as I’ve explored, cannot be made. The Proper Role of Fit in Constitutional Interpretation The Primacy of Justification over Fit This chapter has challenged obligation to the past in constitutional interpretation. I am not, in this book, developing an affirmative theory of constitutional interpretation. But I should say a few words here regarding the use of reasoning about political justice—i.e., about justification—in constitutional interpretation. This is at the heart of Ronald Dworkin’s theory of how to read our Constitution. Although I have critiqued Dworkin’s insistence on fitting current interpretation with past authorities, I am sympathetic with his focus on justification in constitutional interpretation. There are several reasons to think he must be right. First: Our Constitution’s text doesn’t provide enough clear answers, and regarding many of the most important questions—of free speech, equal protection, due process, etc.—the text is notoriously opaque. Furthermore, a constitutional order is a purposive one, established to achieve ends that have effects on the lives of actual people. If one agrees with my critiques of interpretive obligation to original understanding or meaning and precedent, then although one may still take such prior authority into account, one cannot avoid working out the meaning of many constitutional provisions through thinking about what political justice requires. Thus, constitutional interpretation necessarily involves constructing rather than reporting the purposes/ends of our constitutional order. This still could be an endogenous task; the question is what political justice requires given facts about our constitutional order, not what political justice requires ideally. As part of this constrained task of interpretation/construction, as I explain 201

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below in “Room for Fit,” I don’t reject the value of past sources of constitutional meaning; I reject requiring current interpreters to give deference to such sources. Second: The content of these opaque provisions is morally laden. Thinking about “freedom of speech,” “equal protection of the law,” and “due process of the law” demands that we reason about complex questions involving the relationship between the state and the sovereign citizens. The framers, no dummies, must have known they were delegating such interpretive tasks to future generations of readers. Third: These arguments are not meant to apply to federal courts only. As I explain in Chapter 4, government officials of all sorts—legislators, executives, and judges; federal, state, and local—must engage in constitutional interpretation, and therefore must engage in the justificatory project. Fourth: Justification dictates how we view fit points. For one thing, critique of precedent requires a theory of mistake, which turns on justification, which relies on principles of political theory for a liberal democracy such as ours.199 A theory of mistake in constitutional interpretation is similar to a theory of override in Frederick Schauer’s presumptive positivism. Schauer allows rules to be overridden; as I argued near the end of Chapter 1, the justificatory apparatus needed to explain and apply the override case by case weakens the argument for the content-independent reasons that rules provide. Similarly, Michael Klarman argues that translation theory— applying a constitutional principle from one era to another by accounting for changed circumstances—requires that the interpreter select a level of generality at which to do the translation, and that selection, normative as it must be, will dictate the outcome.200 How one sees, accepts, discards, assimilates, and understands various points in our constitutional culture depends on one’s justificatory approach. The foregoing suggests a concern with Schauer’s defense of the proposition that precedent can constrain, even before getting to override calculus. The problem is that the current interpreter’s assessment of which precedents are relevant to the current case, and how they are relevant, may involve so much reasoning unconstrained by precedent as to render precedent not much of a tether at all. Schauer says, “The problem is to determine what constrains a decision-maker’s control over the categories of assimilation.”201 After some nods toward legal realism, he concludes that “naturalist/formalist perspectives may nevertheless better describe the immediate actions of individual decision-makers within a given social subcul202

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ture.”202 “Decision-making within the legal structure is constrained by the comparative fixity of those larger societal and linguistic categories. . . . Precedent rests on similarity, and some determinations of similarity are incontestable within particular cultures or subcultures.”203 In response, first look at all the work Schauer does to make an apparently simple point—that there are some easy cases! Second, what appears incontestable at any moment is the product of backgrounded normative/purposive considerations; those considerations are always in play because the interpreter is always able to consider whether the norms and purposes behind the categorizations fit in the case at bar. The work of determining relevance overwhelms any purported anchoring gains. Schauer’s argument just discussed is about precedent that lacks “an articulated characterization.”204 Precedent that has such a characterization— i.e., where the holding is stated in rule-like fashion—perhaps can constrain more, although, as Schauer recognizes, the articulated characterization may be just an “obscuring smokescreen.”205 For example, if the holding is the seemingly rule-like “Where ABC occur, therefore D,” we may ask, “Even if E also occurs? Even if F does not also occur?” How we describe the predicates will often be incomplete, and future cases may raise questions about such incompleteness. How we determine the answers will involve normative considerations beyond the rule-like holdings. Consider also Schauer’s critique of Dworkin regarding use of the most locally prevailing norm in legal analysis.206 The use of the term “local” is meant to do double duty, regarding jurisdiction (which norm applies here) and subject matter (which norm applies to this type of dispute). Dworkin recognizes the gravitational force of precedent, and Schauer takes this admission and tries to move us away from Dworkin’s more philosophic approach to reasoning. “[W]hat is it that has priority, or gravitational force?” asks Schauer. “Not a limitless universe of potentially applicable materials, but instead a manageable array of relatively identifiable signals. ‘Manageable array of relatively identifiable signals,’ however, is a bit of a mouthful, so perhaps something briefer might be preferable—‘law,’ for example.”207 A bit later Schauer argues that the locally prevailing norm is presumptively constraining (though overrideable).208 This kind of argument is central for Schauer, as we have seen at several points in this book. The overarching purpose of his analysis is to show the virtues of law as a rule applied with indifference to whether the rule’s purposes are being met on the present occasion. For this rule-ness of law to be valuable, we 203

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must (at least) be able to identify the correct prevailing norm (law) for the case at hand. Just as in the paragraph above Schauer refers to some determinations of similarity as being “incontestable,” here he tries to pull Dworkin (and us) away from a more philosophic (or reason-based) approach and into a more mechanical form of judging. For judging to be mechanical in the way anchor theory and Schauer suggest, there has to be a point at which normative analysis stops. But the local (in both senses of the term) doesn’t just announce itself; we have to introduce factors beyond (or underneath) the local to determine what is local and what weight it gets and what it means. Finally, consider David Lyons’ argument that even in hard cases, where we look beyond standard legal rules, decisions are being made according to law. He writes: What the law requires and allows is a function not just of legal rules, but also of considerations without which decisions cannot soundly be made. These considerations are relevant to a judicial decision, so that a court must take them into account and weigh them in the balance in a judicially appropriate way. Their neglect would be a judicial error.209

This makes sense: We’re always deciding cases based on types of reasoning that go beyond mechanical application of legal rules. What facts are relevant? What levels of generality to use? What supplemental moral principles to use, and with what weight? It makes no sense to say all this is extralegal; it’s part of standard legal process. Part of interpreting law, in short, involves going beyond law; we incorporate extralegal standards by reference, as it were. The supplemental principles are not untethered; rather, they are part of a larger universe of principles of political morality we use—all the time—in doing legal interpretation.210 In sum, precedent’s power to constrain adjudication is weak; many normative supplements must be added to determine how to use precedent; we need not see such supplements as extralegal. Room for Fit My arguments seek to undercut political and interpretive obligation, but they are not meant to be anarchic. Citizens and interpreters when deciding whether to obey law or follow purportedly authoritative interpreters or canonical sources do not have carte blanche; their acts of disobedience 204

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should be measured carefully, just as the authority’s response to disobedience should be nuanced. Here are several ways in which interpretation should pay attention to diachronic fit: First, rule of law values must be honored. Insofar as criminal and civil sanctions are involved for primary citizen conduct, interpretations that are surprising or otherwise depart from clearly established legal principles on which reliance is rightly based should either not be issued or should be issued with prospective remedies only. In this way, principles of legality will exert some anchoring force on interpretation. Second, diachronic fit points are evidential of the content of political justice, in the shadow of which all questions of legal interpretation must be asked. Whether the nation’s constitution is perfectionist and should be interpreted toward the vector of political justice, or instead demarcates a limited domain of justice, we may use original understanding and meaning, and precedent, to help us gain a better understanding of the content of political justice. Third, as Stanley Fish has shown, there is no constraint-free interpretation.211 Interpreters are human beings interpreting in light of everything they know, which includes diachronic fit points. Attention to such fit points is unavoidable, as a psychological matter. Fourth, just as political and interpretive authorities should operate with a healthy sense of self-doubt, so should interpreters considering a challenge to authority operate with appropriate caution. Just because diachronic fit points don’t have to be followed doesn’t mean they shouldn’t be, in many cases. Interpretive challengers are no better positioned to assume the correctness of their views than are the sources and authorities they challenge; to avoid interpretive hubris, attention to the views of others, including past views evidenced in diachronic fit points, must be paid. (The predicate here is an epistemic point, about how hard it is to get answers right when doing constitutional law. It is not an argument from skepticism; i.e., I am not arguing there are no right answers.)212 Although I have argued against basing interpretive obligation in a mythic notion of a seamless narrative, seeing constitutional law as having some continuity can help in warding off a pure presentism that might otherwise result, whether that presentism is based in indefensible self-interest or even in a more defensible effort to work out right answers based in current conditions and reasoning. Fifth, one of the main arguments for political and interpretive obligation is that otherwise we are left with chaos born of self-interest.213 Law 205

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and its interpretation through diachronic fit points (the grounds of interpretation) and a supreme court (the locus of interpretation) are needed to achieve a kind of communal finality, operating against the self-interest of plural actors that otherwise exists. There is much to this, and checks against ambition and interest are central to U.S. constitutionalism. Accordingly, the case against obligation must be made with attention to the problem of self-interest on all sides—on the side of lawmakers, fit points over time, and canonical law interpreters, and on the side of those disobeying law and refusing to follow diachronic fit points and a supreme court. We must develop a rubric for assessing the claims of legal authority as well as the claims of those who oppose such authority from positions of moral and interpretive dissent. Sixth, I am rejecting the argument that current interpreters should give deference to diachronic fit points. I am not rejecting the relevance of those points. This distinction is at the heart of this book, regarding both political and interpretive obligation. Theorists supporting such obligations rarely insist they are absolute; their principal concern is to develop the argument for prima facie deference, which may be overridden. My principal concern is the opposite—arguing that the burden should be to justify deference to authority, not to justify overcoming it, and showing the weakness of the case for even merely prima facie deference to law or to prior or higher sources of constitutional meaning. Why My Jeffersonian Position Is neither Anti-Law nor Anti- Constitutionalism In this chapter, I have argued against an obligation to interpret the Constitution on the basis of past sources of (purported) authority. One might ask whether this position extends to an argument against the authority of law or of the Constitution. After all, law generally, and the Constitution specifically (as a type of law), govern over time, and I have been resisting looking backward in time to find authoritative sources of constitutional meaning. My position against diachronic commitmentarianism as a matter of constitutional interpretation does not extend to an anti-law or an anticonstitutionalism position. My arguments against political obligation were not meant to deprive law of legitimacy altogether. They were meant as arguments against a general moral duty to obey the law. Some laws will legitimately bind, and some 206

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applications of otherwise not generally legitimately binding law will legitimately bind. The government has the burden of justifying the bindingness of law at these retail levels. (Recall that I am following a thick justification conception of legitimacy and considering obligation and legitimacy correlative. One could make these same points using language of obligation alone.) In addition, for otherwise justifiable primary conduct rules to bind citizens, basic notice-rule of law concerns must be met. That means, at least, that law imposing criminal or civil penalties must be stated in reasonably clear fashion in advance of the relevant primary conduct, and thus we look backward in time to see what the law is. We do so as well to determine what the law means. Agentic, diachronic commitment theory makes more sense for statutory interpretation than for constitutional interpretation. Because understanding primary conduct rules may not always be easy, citizens’ ability to examine text, legislative and social history, and other backward-looking indicia of statutory meaning is an important adjunct to satisfying notice-rule of law concerns.214 In contrast with the last point, rules that empower and limit government officials need not be set forth with the same sort of advance clarity, because we are not seeking to jail or fine, but rather to delimit the scope of power. Our Constitution almost entirely sets forth rules empowering or limiting officials. Thus, we need not look backward in time for constitutional meaning as arguably we should for statutory meaning. Citizen conduct will of course be affected by how we construe constitutional powers (say, the Commerce Clause) and rights (say, equal protection). But the question in such cases is not about the meaning of the primary conduct rules that may result in sanctions on citizens. Citizens are on notice of the presumptive constitutional validity of federal law; an interpretation after the relevant primary conduct occurred confirming a statute’s validity wouldn’t impose any retroactivity hit; an interpretation that the statute either exceeded congressional power or violated a constitutional right could result only in a retroactive benefit to the citizen. It is possible to understand constitutionalism as synchronic rather than diachronic. There are many virtues in binding the day-to-day lawmaking and execution of our agents through higher-law constitutional principles, but such binding can take place through understanding what the higherlaw principles mean today, or during the current generation, rather than what they meant ages ago. This flies in the face of ordinary understanding, 207

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which sees constitutionalism as about bindingness over time. But the core of constitutionalism is delimiting the scope of power of our agents, the government officials, and the notion of higher law limiting lower law can be stated within time rather than over time. What, today, is the proper scope of the commerce power? What, today, is the meaning of freedom of speech such that otherwise legitimate governmental power must yield in some instances? What, today, are the reasons for forbidding majorities from disenfranchising minorities? The past is relevant in developing answers to these questions. And, as I explore in the “Guidelines” section of Chapter 4, when officials interpret the Constitution they should consider whether their generation has developed answers to the relevant questions, because the opportunity to participate within the generation in the development of law and understandings helps legitimate the application of such law and understandings to those of us extant during the generation. But accepting the past as relevant and generationally developed answers as an important factor for officials to consider doesn’t get us to a case for deference to original understanding or meaning, or precedent, in constitutional law. There is a separate question why this particular constitutional text should matter to anyone, or, more urgently, why it should be thought to obligate. For reasons set forth in the political obligation discussion, and reiterated in my rebuttal of democratic legitimacy arguments for the bindingness of prior sources of constitutional meaning, we can’t legitimate our Constitution as a wholesale matter. Some aspects of our Constitution, though, may be defensible as a retail matter; some, for example, will be backed by coordination arguments (e.g., election rules; how a bill becomes a law); others may fit well with straight-on conceptions of political justice (e.g., equal protection of the laws). Another approach is to see the relevance of our Constitution as a sociological matter rather than as a matter that can be solved through normative legitimation theory. In Hartian style, we might say that if officials accept the secondary rules, and if enough citizens abide by the primary rules, then we have a legal system, and when that legal system exists in a certain geographic space over time, then we have continuity, and all of this is enough to solve the particularity problem. Thus, we can want higher law to govern our agents, accept that this can be done through synchronic constitutionalism, and recognize the relevance (though not necessarily the wholesale legitimacy) of the particular text that is the Constitution of the United States of America. We can witness the sociological fact of accep208

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tance and compliance with the secondary rules of the Constitution and the primary rules enacted thereunder, and combine this with the need to have higher-law principles to circumscribe official power. We can see these textual limits as our limits, and we can proceed to the (admittedly complex) task of determining the meaning of the often abstract text.

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4 A G A I N S T I N T E R P R E T I V E O B L I G AT I O N TO THE SUPREME COURT

As with any court, the U.S. Supreme Court’s judgments are properly binding on the parties to a case.1 But are the constitutional interpretations the Court offers in rendering such judgments binding on others? More specifically, do other government officials—federal and state executives, legislators, and judges—have a duty to follow the Court’s views on constitutional meaning? The question is hard because it pits two intuitions about obligation against each other: only parties to a case, or those who have had a chance to participate, may properly be bound by what the court says and does in that case; and the point of having a supreme Court is to provide a uniform, settled view on critical issues of federal law. I address up front two arguments for an interpretive obligation to the Supreme Court. The first is that when government officers take the required oath (or affirmation) to “support the Constitution”2 they have agreed to follow the Court’s constitutional interpretations, even when not party to a case. This would be a consent-based ground for interpretive obligation. But the oath tells us nothing. Just as in Marbury v. Madison3 it was weak to suggest that the oath entailed judicial review, so is it weak here to suggest that the oath entails a duty to follow the Court. In Marbury, the problem was that taking the oath does not imply a judicial power to supplant the constitutional interpretation of other officers; perhaps supporting the Constitution, in that setting, means deferring to such interpretation. Here, the contrary argument holds: The oath does not imply an official duty to follow the Court; maybe it means each officer has to decide for herself what the Constitution means.4 All government officers—federal and state; legislative, executive, and judicial—must swear or affirm that they will support the Constitution; the Oath Clause does not distinguish among such agents, and does not state that any agent has pride of place regarding constitutional interpretation. 210

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The second argument to dispense with up front is that we have a wellestablished tradition of official deference to the Court’s constitutional readings. To be sure, officials often accept the Court’s view of the Constitution without challenge, but, as I suggest below, there are also instances of official challenge to the Court, and although the Court’s response sometimes takes on the haughty tone of a parent chastising a child, there is no clearly marked historical practice supporting an official duty to accept Court constitutional interpretation.5 We are left with the hard question whether something about our constitutional text or structure is best understood as creating a kind of interpretive obligation, i.e., a positional duty of officials to follow the Court’s view of what the Constitution means. The discussion below takes the following course: I set forth the basic arguments supporting an official’s interpretive obligation to follow the Court. Then I show how these arguments are a  poor fit with our constitutional order—they either assume a structural reading of official role that doesn’t exist or they mistakenly place settlement values above the true cardinal principle of our constitutional order, multiple repositories of power. This core commitment to divided power leads to a plural rather than unitary answer to the question, Who says what the Constitution means?, and this plural answer, to have real weight, must be the correct one even after the Court has spoken on an issue. However, even though I reject official interpretive obligation to follow the Court, just as a similar rejection of citizen political obligation does not require disobedience, and just as my argument that prior sources of constitutional meaning should not bind does not suggest we ignore the past, so here I do not claim it is necessarily a good thing or a positional imperative for officials to challenge the Court. That the Court has spoken should be relevant to an official’s consideration of how to interpret the Constitution, and what sort of weight the Court’s views should receive is a complex question requiring analysis of many factors. I discuss those factors, and seek to bridge the gap between the two competing tenets I set forth at the beginning of this section—that one is bound by a court judgment only when one has had a chance to participate, and that the Court in our constitutional culture is sometimes thought to settle issues of constitutional meaning beyond individual judgments. One way of accommodating both tenets is to pay attention to how voice—here instantiated through adjudicative participation—can work to legitimate judicial authority. Here I flesh out a theory of generational participation, as a way 211

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of making voice meaningful as a legitimating device, but not demanding so much of voice that we have reinscribed a consent requirement, which is impossible to meet. I also explore, in some detail, whether a duty to follow the Court’s view of the Constitution varies depending on the government office one holds. Finally, I examine how the Court should respond to interpretive challenge. Just as I argued earlier that government should develop a nuanced way of responding to claims for exemption from law, so here I argue that the Court should develop (and, despite cries of alarm from some quarters, to some degree already has developed) a nuanced way of responding to official interpretive disobedience. The Role of the Supreme Court in Settling Constitutional Issues The Role of the Court in Our Structure of Government The Constitution is often murky; its application in particular settings, uncertain from reading its text. Article III provides that “[t]he judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish,”6 adding that “[t]he judicial power shall extend to all cases, in law and equity, arising under this constitution.”7 By virtue of Article III’s creation of a Supreme Court with power to resolve cases arising under the Constitution, our duty of obedience to the Constitution extends to following what the Court says the Constitution means, for the Court cannot resolve constitutional cases without deciding what the Constitution means. This duty covers both citizens and officials. Or so the argument goes. The Court enunciated a version of this argument in Cooper v. Aaron.8 Confronted with the intransigence of southern state officials in responding to the desegregation edicts of Brown v. Board of Education I and II,9 the Court responded to a claim by Arkansas officials that they were “not bound by our holding in the Brown case.”10 The Court reasoned as follows: The Supremacy Clause of the Constitution states, “This constitution . . . shall be the supreme law of the land.”11 Marbury v. Madison held that the “federal judiciary is supreme in the exposition of the law of the Constitution.”12 “It follows,” said the Cooper Court, “that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ ”13 212

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One might deem the foregoing a textual argument requiring government officials to follow Court constitutional interpretations. Here is a related but more structural way to the same conclusion. Among other matters, Marbury dealt with whether the Constitution grants federal courts the power to interpret the Constitution and in so doing displace the constitutional judgments of other branches in the case at bar. Although Chief Justice Marshall offered several reasons for an affirmative answer, the most persuasive justification for judicial review is a structural one.14 In our constitutional order, citizens are sovereign, the powers of government are limited both by enumeration (at the federal level) and by reserved rights of the people, and the structure of government is carefully divided to ensure that one person or branch or level of government does not gain too much realworld power. As I explained in Chapter 1, this system of multiple repositories of power helps ensure that citizens remain sovereign, that we do not fall victim to the illusion—or actuality—that any person or branch or level of government is actually the principal. The federal courts, with the Supreme Court at the top, play a critical checking role. The Constitution makes federal judges independent of politics in two ways: by providing tenure during “good behaviour,” commonly understood as life tenure (subject only to impeachment); and by ensuring that federal judges’ compensation “shall not be diminished during their continuance in office.”15 Thus, the Constitution sets up a body of government officials who can check the elected officials, who might fall prey to majoritarian or factional influences that might threaten basic rights. We may now flesh out the insight from Cooper. Not only is the Constitution supreme and the Court a “supreme” one; but also the federal courts, with the Court at the top, provide an integral checking function to ensure that the people’s repositories of power remain multiple and that elected officials remain true to constitutional principle and not succumb to improper political influence. This checking function would be thwarted by deeming Court constitutional interpretations not binding, i.e., by considering them open to interpretive challenge by the officials’ being checked.16 A separate argument, also stating a theory of the distinctive role played by courts (though not necessarily federal courts), is that constitutional interpretation is agentic—it requires unearthing the understandings (at an appropriate level of generality) of the framers and ratifiers of constitutional text (or the original public meaning of that text).17 Such archival activity is the special province of judges; it is (part of) what they are trained to do; 213

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they have a comparative advantage over political actors in performing this task. The Settlement Function Performed by the Court The Constitution is sometimes clear, but often it speaks in vague, majestic terms, and its application to a wide variety of circumstances is not apparent. The Constitution is a type of law, and, as with any law, settlement and clarification are necessary to avoid chaos. If law can mean whatever each of us thinks it means (or can be trumped whenever any of us deems its terms not supportable morally), then one of the cardinal virtues of law in a civil society—its ability to move us from the all-against-all world of the state of nature—would be lost. Having a Supreme Court to resolve complex issues of constitutional interpretation performs a key settlement function.18 As Robert Nagel describes the argument, with endless challenge to the Court’s readings of the Constitution, “every decided case would invite a cycle of resistance and revision.”19 Just as political obligation is buttressed by this sort of systemic, consequentialist argument, so is the argument that officials must follow the Court. Also, one might contend that officials will sometimes make errors in their constitutional judgments and that the systemic cost of dealing with errors of multiple interpreters is greater than the cost of dealing with the mistakes of one Supreme Court.20 Daniel Webster, responding to President Andrew Jackson’s veto message asserting presidential constitutional judgment opposed to the Court’s, put the systemic argument this way: “Social disorder, entire uncertainty in regard to individual rights and individual duties, the cessation of legal authority, confusion, the dissolution of free government—all these are the inevitable consequences of the principles adopted by the message, whenever they shall be carried to their full extent.”21 Henry Clay responded similarly, arguing against the view that government officials may follow the Constitution as they understand it: “We should have nothing settled, nothing stable, nothing fixed. There would be general disorder and confusion throughout every branch of administration, from the highest to the lowest officials—universal nullification.”22 Elaborating on this argument, Larry Alexander and Frederick Schauer defend a duty for officials to follow the Court’s readings of the Constitution.23 Their argument is drawn from the concept of preemption in jurisprudence. Although the Constitution may not be perfectly consistent with the dictates of political justice, we—citizens and officials—properly 214

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subsume our judgments about political justice to the norms of the Constitution, to advance the virtues of settlement and coordination. We adopt and apply rules, granting and limiting state power, and allow these rules to trump, or preempt, what we might otherwise deem best for the society at any given moment. Likewise, although the Court’s interpretations of the Constitution may not be perfectly consistent with the Constitution itself, we—citizens and officials—properly subsume our constitutional interpretive judgments to those of the Court, again to advance the virtues of settlement and coordination. Law can tame the beast only if it is stable; since law as written is often murky, legal interpretation can tame the beast only if it is stable; it is stable (in the constitutional setting) only if there is a commonly accepted interpreter who has the final say not only in specific cases, but also on the constitutional principles underlying the resolution of cases. Interpretive Pluralism Rejection of the Structural Argument Cooper’s equation of the Constitution with the Court’s interpretation of the Constitution is a mistake.24 We the sovereign citizens ratified the original Constitution and the various amendments, not the Court’s interpretations. Yes, the Constitution is supreme law, and it establishes the Court as the top court in a pecking order of courts, state and federal, with the job of (among other things) resolving cases arising under the Constitution, which includes interpreting the Constitution. But that job might be, as Article III states, limited to resolving “cases” arising under the Constitution. Article III does not say that the Court’s reasoning in resolving individual cases may not be challenged by government officials. It doesn’t say anything preventing challenges to Court precedent from a President or governor when taking executive action, or a federal or state legislator when introducing a bill, or a federal or state judge when deciding a case. In other words, although the Court’s holding in a specific case must be final and binding in the case at bar for it to constitute a check on the political branches,25 this checking function need not extend to a broader conception of precedential bindingness.26 Daniel Farber challenges this view. He argues that “decisional supremacy”—court holdings in specific cases must be obeyed—has become key to accepting the Court as the “ultimate constitutional authority.”27 He adds that we should view Court decisions interpreting the Constitution as 215

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binding beyond the case at bar, as a form of federal common law, binding under the Supremacy Clause as are other sources of federal law.28 But federal common law (which is rare), made by federal judges, sets primary rights and duties of private persons as statutes do and is binding in the way that statutes are binding (putting aside the difference between the canonical form of a statute versus the expository form of a judicial opinion). Interpretations of the Constitution are interpretations (not conduct rules) of provisions that grant and limit the powers of government officials (not of private persons). The Court’s constitutional interpretations are not like federal common law in any of the ways that render the latter binding, and thus this is an inapt analogy to buttress a case for Cooper-like precedential bindingness. In addition, Farber contends that constitutional tort damages are available against government officials for violation of clearly established constitutional principles,29 and to that extent we might consider Court decisions binding beyond the case at bar.30 But officials may argue, in any given case, that the established constitutional principles are incorrect; the prior holdings are not binding in the way judgments are against parties to a case, i.e., they are not authority that may be invoked without openness to argument as to correctness. That there may not be a constitutional tort damages award without clearly established law is a rule protecting government officials from making reasonable errors of judgment; it does not bind them to prior Court case law. Keeping front and center the fact that the Constitution, and not any interpretation of it, is the supreme law of the land helps remind us that we are the principals, and that government officials—Supreme Court Justices included—are merely our agents. For the Court’s view of the Constitution to bind other government officials as precedent would threaten a concentration of interpretive power in the Court. Judges too must be checked; they make mistakes and succumb to self-interest just as elected officials do. The theory of departmentalism—each branch of government must interpret the Constitution in carrying out its constitutional functions—fits well with the multiple repositories of power approach to our constitutional order.31 As Jackson put it: Court precedent ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the 216

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Constitution. . . . The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.32

Also consider that even though the independent federal judiciary performs a critical checking function on the political branches, at least in individual cases, it is nonetheless subject to political checks: the President nominates and the Senate confirms federal judges; Congress may impeach and convict federal judges; and Congress has significant leeway regarding the jurisdiction of the federal courts.33 Moreover, as political science work has shown, federal judges are thickly embedded in the political culture of their time and place, and are checked in a behavioral fashion by their relationship to that culture.34 That federal judges—including Supreme Court Justices—are checked in these formal and informal ways fits with understanding constitutional interpretation as plural among government officers. The foregoing has been a critique of the structural argument that the Court’s constitutional interpretations bind other government officials. That critique can be strengthened by describing the affirmative case for a different understanding of the development of constitutional meaning. By distinguishing the law of judgments from a strong theory of precedent, we can enable dialogue among the branches, and foster a deeper and richer understanding of the Constitution. Granted in individual cases someone must have the final say, and the Court is the place in our constitutional order. But when it comes to elaboration of constitutional principle more generally, an ongoing exchange between elected officials—with their comparative advantages (closer to the people and problems at hand) and disadvantages (the same, one might say)—and the unelected judiciary fits well with the cardinal anti-monopoly principle.35 The political branches are often a good forum for debate about matters of constitutional principle.36 Viewing constitutional interpretation as a plural, dialogic exercise makes sense for an additional reason. Since the Constitution, and not the Court, is the supreme law of the land, it is important to have mechanisms to challenge Court interpretations, for they might be wrong. That the Court’s interpretation is final in a given case does not mean that it is correct. If we viewed constitutional interpretation as single-vectored, always ending with what the Court says, then the only ways to correct erroneous Court interpretations would be through constitutional amendment or the Court’s 217

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overruling itself. The former is notoriously difficult to accomplish, via Article V’s cumbersome processes, and the latter would be hard to come by if other participants in the process of constitutional adjudication were not free to challenge Court interpretations. If overruling could happen only at the Court’s initiative, its precedent would become concretized in a way suggesting an equation of the Court and the Constitution, which would be an improper alienation of agent from principal. By deeming it appropriate for government officials to challenge the Court, we open avenues for reconsideration and correction. As Abraham Lincoln put it, “we think the Dred Scott decision erroneous. We know the court has made it, has often overruled its own decisions, and we shall do what we can to have it to over-rule this.”37 As for the argument that constitutional interpretation is agentic, requiring archival unearthing of original understanding or meaning, and that this activity is better performed by judges than by political actors, I reject the major premise, referring to my Chapter 3 critique of diachronic constitutional interpretation. Whether we call the practice of deriving meaning from the often abstract provisions of our Constitution’s text interpretation or construction or something else, recovery of original understanding or meaning should be considered nonbinding, a factor only. Rejection of the Settlement Function Argument Earlier, I explained why the argument for political obligation based in settlement values is problematic; here I make a similar case against asking government officials to defer to the Court’s constitutional interpretations. As interpreters, each of us has a current responsibility to say what he or she thinks the law means. Invoking settlement risks dulling officials’ responsibility—both as citizens in their own right and as our agents—and thus risks collapsing the multiple repositories of power, risks an interpretive monopoly, all of which increases the risk that the transparency of our primary sovereignty will be obscured and that we will begin to believe that a powerful concentrated holder of power—here, a supreme court—is the principal. In Lincoln’s classic phrasing: [I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, 218

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to be their own rulers, having, to that extent, practically resigned the government, into the hands of that eminent tribunal.38

Supporting my argument against the settlement case for interpretive obligation to the Court is a caveat that Larry Alexander and Lawrence Solum make while otherwise defending such obligation. They leave a significant space for departing from Cooper’s judicial supremacy point of view, writing that “only when the Framers intended a standard, and when there is no need for settlement (rulification) or the majoritarian institutions can both settle matters and settle them better than courts can, is Cooper normatively suspect.”39 Most of the constitutional rights subject to ongoing debate are cast as standards rather than rules; and, as I argue in various places, there is little need for settlement for most of these rights, for reliance is rarely a real issue, and citizens and institutions can adjust to new interpretations. The argument from settlement is part of a package of consequentialist arguments for political and interpretive obligation. Just as I did in Chapter 1 regarding political obligation, so here I reject two additional systemic, consequentialist arguments. First, just as there will be error costs in promoting a system of dialogic interpretation, so would there be error costs from promoting a Cooper-like view of Court hegemony. It’s not clear that the errors of the former outweigh those of the latter. Second, anarchy arguments are speculative regarding contagion, i.e., the assumption that because one government official goes her own way, too many others will as well. What we see in our constitutional culture is a more nuanced history— some important examples (good and bad, from one’s substantive perspective) of official rejection of Court precedent.40 And from the history, and structure, of departmentalism, as well as from the Court’s treating its precedent as not binding, one could argue that stability and consistency have not been the hallmark of our constitutional law, but that we’re doing just fine nonetheless.41 As explained above, Larry Alexander and Frederick Schauer offer an important twist on the settlement argument that government officials should treat Court constitutional interpretation as binding. They argue that just as officials (and citizens) accept the Constitution as preempting calculations of political justice, so should officials (and citizens) accept the Court’s view of constitutional meaning as preempting divergent 219

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constitutional interpretations in the performance of their official duties. The Constitution itself and the Court’s reading of the Constitution perform important settlement functions through having this kind of contentindependent authority. The argument, though elegant, is mistaken, and there are two ways of seeing this. One preliminary point before we start. Alexander and Schauer’s argument turns on the concept of limited domains:42 political justice is the broader domain, but we select via our Constitution a more limited domain of constitutional justice; the Constitution itself is the broader domain, but it is unclear in many ways, and we select via Court interpretations a more limited domain of constitutional meaning. We can add a third example, which Alexander and Schauer would not dispute: morality is the broader domain, but we select via which laws we enact (including our Constitution) a more limited domain of legal regulation. Now I turn to the first critique of Alexander and Schauer’s argument. Consider the following three gaps: between law and morality, between the Constitution and political justice, and between the adjudicated Constitution and the Constitution. In each pair, the first mentioned item is the limited domain, in which we resist a set of considerations properly within the jurisdiction of the second mentioned item, the broader domain. Thus, law leaves some decisions unregulated, left to persons to work through within the broader domain of morality. Similarly, the Constitution leaves some matters ungoverned (either as a matter of powers not granted to Congress, and thus reserved to the states, or as a matter of rights not ensured), left to citizens and officials (perhaps at the state and local level) to work through within the broader domain of political justice.43 Likewise, for institutional reasons that Lawrence Sager44 (and others) have set forth, the adjudicated Constitution leaves some matters underenforced and underinterpreted, left to the political branches (and citizens) to work through within the broader domain of the Constitution. We treat law, the Constitution, and the adjudicated Constitution as limited domains, restraining the intrusion of a broader set of considerations in our reasoning. But we do not insist that the restricted set of considerations in the limited domains dominate the broader domains. We limit the domain of law, of the Constitution, and of the adjudicated Constitution, so that much work can be done in the broader domains of morality, political justice, and the Constitution. In short, we settle matters for, or within, each limited domain, but we do not settle matters from the limited domain for the broader one. For the adjudicated 220

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Constitution this means that participants must obey final court judgments, and it also means, I believe, that the Court should follow (as a rule, subject to override) its own precedent. (Alexander and Schauer would be happy with this condition.45 I am accepting it merely arguendo here; I challenged it in Chapter 3.) But it doesn’t restrict official development of constitutional meaning otherwise. To some extent Alexander and Schauer accept this, by acknowledging areas of constitutional law either expressly or implicitly left to political development, such as the political question doctrine and when the Court basically defers to the political branches.46 Their recognition of these areas, however, is still within the context of providing settlement—here they accept settlement of constitutional meaning within the political branches rather than by the Court. But these are not areas of easy settlement, where (say) two branches defer to a third. The political question doctrine cases, for example, often involve complex battles between the President and Congress, with no sign of settlement. So Alexander and Schauer can’t accept these areas of constitutional doctrine as providing a substitute for settlement by the Court. If they are to accept them, it has to be for a broader proposition—constitutional meaning is sometimes worked out by the Court, sometimes by the political branches, and sometimes by an unruly combination, and so long as we accept the law of judgments and (for me, arguendo) binding the Court by its own precedent, we can maintain the gap between the adjudicated Constitution and the Constitution itself and keep an important role for dialogue over constitutional meaning. This first critique of Alexander and Schauer’s preemption argument for interpretive obligation to the Court, however, says only that settlement within the limited domain of the adjudicated Constitution leaves room for the development of constitutional meaning in the broader domain of politics. A further critique does deeper damage to Alexander and Schauer’s position. Let’s start with the other two pairings of limited/broader domains. Saying that law obligates and preempts moral reasoning or that the Constitution obligates and preempts reasoning from political justice doesn’t mean we can’t seek to change the content of the limited domain through arguments from the broader one. It’s a false picture of the dynamics between the limited and broader domains to suggest otherwise. At any moment in time law may be stable, but at the next moment we may be seeking to change it because of a different view of what morality requires. Likewise, at any moment in time the Constitution may be stable, but at 221

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the next moment we may be seeking to change it because of a different view of what political justice requires. An important caveat is that we must attend to notice–rule of law principles; we may penalize someone’s behavior because it violated law extant on the day of the conduct, and not because it violated some moral or political justice norm we wish had been part of law or the Constitution on that day but was not. In other words, if we adopt arguments from the broader domain to change the content of the norms of the limited domain, we should do so prospectively only (if doing so retroactively would impose an unfair hit to a legitimate reliance interest). But so long as we keep that rule of law principle in mind, the stability/settlement of the norms of the limited domains is always subject to change. (Always—unless we are adopting a different sort of settlement argument, say, Burkean, which is not the thrust of the Alexander and Schauer preemption settlement argument discussed here.) The analogy in our third pairing should be clear. At any moment in time the meaning of the Constitution as interpreted by the Court may be stable, but, in parallel fashion to the arguments just made, at the next moment we might be seeking to change our understanding of even the adjudicated Constitution because of a different view of what the Constitution itself requires. This is no different from using moral arguments to seek to alter law’s content or from using arguments from political justice to seek to alter the Constitution’s content. To ensure that the Court’s constitutional interpretation at any moment achieves important settlement values, we must adhere to (1) the law of judgments (participants must obey final court orders) and (2) basic notice–rule of law norms (people, including officials, may be penalized only according to interpretive understandings reasonably clear on the day of the relevant conduct). The latter point means that if the Court is persuaded to change its view of constitutional meaning (perhaps to accord with a view offered by an executive or a legislature), it may do so prospectively or through injunction, but not through awarding retroactive damages based on the new understanding. But so long as (1) and (2) hold, official disagreement with Court constitutional interpretations and action seeking to alter such interpretations,47 either within the political branches or in litigation or both, is no more problematic than using moral arguments to seek to change law or using arguments from ideal political theory to seek to change the Constitution.

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Guidelines for Officials in Deciding Whether to Follow the Court Government officials do not owe an obligation to follow the Court’s interpretation of the Constitution. But just as citizens should not automatically disobey law when they believe it conflicts with other sources of normative authority to which they adhere, so should government officials not refuse to follow the Court whenever they believe the Court has erred in interpreting the Constitution. I canvass considerations government officials should take into account when thinking about straying from the Court’s view of what the Constitution means. Need for Coordination/Stability Just as systemic values are appropriate factors for our consideration when deciding whether to obey law, so are they appropriate factors for officials to consider when deciding whether to follow Court precedent. Arguments for coordination are stronger in some settings than in others, and officials should account for these distinctions in deciding whether and when to follow Court precedent. To name one big example: Even if a government official were persuaded the New Deal is unconstitutional, given the regulatory structure developed over the past eighty years, the official might step back from invoking constitutional arguments to disrupt that structure today. This approach could be considered rule-sensitive particularism for officials. One might ask—why don’t I accept Alexander and Schauer’s argument for a duty to follow the Court, but view it as only weakly presumptive, and build in factors discussed here and below in determining whether/ when to override the duty? There are two answers. First, my analytic argument is that our constitutional structure does not give any branch presumptive authority to interpret the Constitution. Second, the burden should be on the Court to justify its claims of authority and not on government officials to justify their failure to defer to Court constitutional interpretations. This parallels my arguments in the sections on political obligation and diachronic interpretation regarding the burden of proof. Vote and Response Perhaps an official should adhere to constitutional principle announced by a 9– 0 Court vote more readily than she should a 5–4 one, and perhaps she should be more apt to follow an opinion quickly adhered to across the country than one to which popular (and official) resistance has been 223

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present from issuance. This is about stability and consensus, and I’m uneasy about it (for reasons similar to my objections to settlement as an argument for political and interpretive obligation). It doesn’t go to participation or to whether an opinion is well-reasoned, and may mask a rights problem underneath a kind of political correctness. Unanimity on the Court and adherence across various regions and sectors of society should give an official pause before she acts contrary to the Court ruling, but the official’s assessment should be nuanced enough to notice whether a kind of interpretive mass hysteria has captured the day, or instead whether unanimity and broad adherence speak to a deeper point of principle. Distinguishability The standard argument is that the closer a Court opinion fits one’s situation, the weaker the case for challenging the opinion, and vice versa. This makes sense from the point of avoiding futile challenges—although what constitutes futility merges to some extent with what constitutes wellsettledness or an overwhelming vote and response, and thus one must be careful not to invoke futility and mask a real problem lost in the background. If material facts about the setting the official confronts differ from a related precedent, the official may act on her interpretive judgment that the Constitution requires a different outcome in the current circumstances. But even if a case is on all fours with a situation an official confronts, the inability to distinguish the case should be a factor but not a dispositive one. Persuasiveness of Court’s Opinion This might sound circular, but it’s not. In deciding whether to challenge Court precedent, government officials should consider the soundness of the Court’s reasoning in the relevant case(s), as judged by standard interpretive norms. Regardless of whether one agrees with the holding, an opinion’s soundness or shoddiness should be a factor in deciding whether to follow it. Generational Participation Law is most legitimate and therefore worthy of obedience if one has made it, or participated in its making, or had the opportunity to do so. Just as reliance on original understanding or meaning falls to dead-hand concerns, so does the dead hand of old cases, not regularly reaffirmed, weaken the 224

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Court’s authority. Assume you are a government official. The oath you have taken to “support” the Constitution does not obligate you to follow Court precedent. You have not consented, in any other way, to follow the Court. You are both a citizen and an agent of citizens, and in both capacities you have interpretive judgment to exercise. Whether to delegate that judgment, or to defer to another’s judgment, itself involves judgment, of a normative kind. Moreover, the multiple repositories of power principle suggests that your normative judgment about constitutional principles is what the principals (the citizens) require of you. If you are party to a case—say, a member of the Board of Education of Topeka, Kansas, in Brown v. Board of Education48—then your participation properly binds you, according to the law of judgments, to the judicial orders in that case. If you are not party to a case, perhaps we can find an analogue to direct participation that would reinscribe some of the virtues of direct participation. Here is where the difference between old, dead law and new, vigorously socially debated law can be useful. If, for example, you are a governor at a time during which a question was hotly debated, as to which the Court recently spoke, then it is not too metaphorical to say you had an opportunity to participate—not as party to a case, but as a public official engaged in debate and governance regarding the key issues of the day. Perhaps you also had an opportunity to participate in relevant litigation, as part of an amicus brief representing (say) state governors. Your engagement in politics and in constitutional interpretation as part of that politics, though not fully grounding interpretive obligation, can add weight to the argument that you should follow Court decisions issued during your generation of public leadership. Thomas Jefferson’s ideas about keeping law current, discussed in the section on diachronic constitutional interpretation, are valuable here as well. Recall that Jefferson argued laws should not bind past the current generation and the Constitution should be frequently revised. Buttressing both arguments is the notion that law is more legitimate when one has had an opportunity to make it or to influence its making. In the relevant letters, Jefferson applied this idea neither to how one should interpret the Constitution nor to who should interpret the Constitution. But we can borrow from Jefferson. Government officials should give greater weight to Court opinions from the current generation, during which the officials have lived and have had an opportunity to influence the debate, and should give less weight to Court opinions from prior generations. In the setting of 225

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interpretive obligation, Jefferson’s argument can help us strike a compromise between constitutional meaning’s binding at the moment of a provision’s ratification only (which would be the extension of Jed Rubenfeld’s reductio critique) and binding people alive today to the original understanding or meaning of a provision ratified long ago. We can see the value of the generation as the appropriate time unit for considering official deference to the Court in another way. Although we want to avoid being bound by dead-hand understandings of the Constitution, there is value to developing constitutional law as a narrative, with some continuity, and not lapsing into pure presentism where everything about the past is forgotten. (This was part of my argument in Chapter 3, “Room for Fit,” that although original understanding and meaning, and precedent, shouldn’t bind current interpreters, such interpreters should still account for past understandings.) The generation is a time unit neither too old nor too new. It allows us to recognize the common law type development of constitutional law, and thus be backward-looking, while focusing us on debates within the memory of those now in power and paying attention, as well as on situations and facts matching the current or recent terrain, in terms of (for example) technology. The discussion in this section focuses on officials, and implicates them as readers, not as subjects of law. As I explained in Chapter 1, the opportunity for political participation is insufficient to ground political obligation. The law of judgments is an exception, but is limited to cases in which one is a party (or at least has notice and opportunity to be heard). The opportunity for generational participation would thus be insufficient to bind a subject to law. And even for officials, it is a kind of virtual representation, for my argument is that an official should consider following Court constitutional interpretations from her generation even if she didn’t have an opportunity to participate in the relevant cases. But because we are talking about persons in their role as constitutional interpreters, and not as subjects bound by law, and because we are talking about a factor for consideration in following the Court, and not an argument for the bindingness of Court precedent, we can accept the imperfect legitimacy of generational participation. A generational participation theory abjures well-settledness. One might think that a constitutional proposition’s being well-settled argues for deference to the Court. Indeed, Alexander and Schauer say that officials should defer to overwhelming professional consensus and not make continuous 226

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and futile challenges.49 I won’t quibble with the latter (except for some cautionary notes above in discussing “distinguishability”), but the former is troublesome. As I argued in rejecting settlement as a ground for political and precedential obligation, the common law epistemic argument and the efficiency argument should give way to concerns about interpreters’ following other interpreters unthinkingly and about unjustifiable power relationships that might have produced the purportedly settled views. Additionally, maintaining citizen sovereignty and the true principal/agent relationship between citizens and officials requires a healthy skepticism of settlement. The same is no less true when officials consider whether to challenge or accept the Court’s view of constitutional meaning. An analogy to generational participation theory in statutory interpretation is the doctrine of desuetude: “A state of disuse or inactivity.”50 Old statutes, not recently reenacted or enforced, are less deserving of citizen obedience than are new or reenacted statutes with regular enforcement. Moreover, courts should consider the possibility of refusing to allow a sudden, new enforcement action of an old, mostly unenforced statute. There are two arguments for this. One, which connects more directly to the generational participation factor when officials decide whether to follow Court decisions, is that current citizens have not had an opportunity to participate in making, revising, repealing, or even debating the validity or propriety of old, unenforced law. Thus, there is less reason to believe that the law represents the will of the people, and little argument for the bindingness of law on the ground that one has had an opportunity to participate in its making, etc. As Daniel Markovits puts the case in defending civil disobedience to combat entrenchment and inertia, “The combination of distance from any past sovereign engagement and resistance to a new sovereign engagement, although an inevitable part of democracy on the republican view, has in such a case produced a democratic deficit.”51 The other argument is that an old, mostly unenforced law raises notice–rule of law concerns: citizens might reasonably believe that the law does not govern them, either because they are unaware of its existence or because they are aware of it but reasonably believe it’s a dead letter.52 Positional Duties The job the government official holds should play a role in how she thinks about following the Court. I first discuss federal actors—the President, Congress, and lower federal courts—and then examine whether the analysis 227

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should shift when we focus on state officials—governors and local executives, state legislatures, and state courts. T h e Pr esi de n t

The President is in the most immediate position of response to Court rulings and has the most direct effect on citizens through sitting atop a vast federal bureaucracy. There are some famous instances in which Presidents either failed to follow Court constitutional interpretations in carrying out their executive functions or stated they would not treat such precedent as binding:53 Jackson’s veto of the second national bank, in the face of the Court’s view in McCulloch v. Maryland54 that such a bank is within Congress’ enumerated powers;55 Lincoln’s statement that although he would enforce the specific order in Dred Scott v. Sandford,56 he would not accept the Court’s view of the law in other, similar cases.57 Perhaps one could argue for a one-way ratchet, for the President to underenforce power-protecting opinions while overenforcing rights-protecting ones. But there are too many cases in which liberty is at stake on both sides. (Consider abortion cases, with liberty claims of both the mother and the fetus, or criminal law cases, with liberty claims of both the defendant and the victim or community at large.) Much of the material in the area of presidential constitutional interpretation focuses not on response to Court rulings, but on refusal to enforce a statute the President deems unconstitutional, without any Court opinion on the subject. A classic example is Jefferson’s pardons of those convicted under the Sedition Act (and refusal to continue enforcing it).58 The arguments for “presidential review”59 here are similar to those in the setting with an extant Court opinion (and here the settlement argument for deference to the Court disappears): the President is one of three coordinate branches of federal government; he must interpret the Constitution in carrying out his functions (which include enforcing the law, and thus he must interpret statutes and make determinations about their constitutionality); the core principle of multiple repositories of power requires plural interpretive authority; any ongoing struggle that ensues among the three branches to determine constitutional meaning is a healthy one, consistent with our “unsettled Constitution.”60 As Reva Siegel puts it, “Through most, but not all, of American history, constitutional contestation that challenges authoritative pronouncements of constitutional law has worked to vitalize rather than undermine the system.”61

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I do not, however, agree with the additional argument favoring presidential review based in the Take Care Clause.62 Article II, section 3, provides that the President must “take care that the laws be faithfully executed.” The argument offered is that to faithfully execute the laws, the President must interpret the Constitution, indeed, that the Constitution is one of the laws he must faithfully execute. It is equally plausible, though, to construe the Take Care Clause more as a duty than as a power, i.e., the President must ensure that all laws passed by Congress are enforced. Whether the President should engage in his own constitutional review of such laws— and refuse to enforce those he deems unconstitutional—must turn on separate structural and normative arguments, and not on the language of the Take Care Clause itself.63 To see just how ambiguous the Take Care Clause is regarding presidential review, Peter Strauss uses it to argue against presidential review when the Court has weighed in on the matter at hand: “Faithful execution of the laws plainly includes the Constitution as authoritatively interpreted by the courts and the Supremacy Clause that entitles the Constitution to prevail.”64 One factor for the President’s consideration should be whether a nonenforcement decision would make it impossible for citizens to challenge what the President is doing. It’s one thing to enforce a statute in the face of a Court ruling that the law is unconstitutional; the subject of the enforcement action will have standing to challenge the President’s interpretation. But what if the President refuses to enforce a statute that the Court has upheld or that the Court has not yet interpreted? What if the law, say, promised a hefty amount of spending on a particular social problem? Who would have standing to challenge the refusal to enforce? Unless someone could show a likelihood of being a beneficiary, there might be no proper plaintiff, at least according to Article III standing rules. This problem could be finessed by permitting legislative standing, but case law suggests this would be unconstitutional.65 Presidential refusal to enforce a statute does not count as specific legislative injury. Perhaps a state court, which might lack Article III’s standing rules, would permit a citizen suit, and then, if the state court ruled against the President, he would now be injured and could appeal to the Court.66 But the matter has become complex. If presidential statutory nonenforcement, with or without a Court opinion validating the statute, would render it impossible to challenge the President, this should weigh against executive disobedience.67

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Indeed, sometimes Presidents refuse to defend a law’s constitutionality in court while continuing to enforce it, to ensure judicial resolution (or at least consideration) of the matter. An example of this was President Barack Obama’s decision to refuse to defend the constitutionality of the Defense of Marriage Act insofar as it defined marriage for federal purposes as only between a man and a woman. He notified Congress, giving it an opportunity to defend the law in court. At the same time, Obama instructed his benefits administrators to continue enforcing the law.68 Thus, the federal government would deny a same-sex couple benefits available to married couples only, but would refuse to defend such denials in court. To some extent, this seems like interpretive schizophrenia, and it visits real harm to persons the President believes are being treated unconstitutionally. Not every denied couple will be able to go to court, and/or wait until the resolution of often lengthy court proceedings. Perhaps in such a setting the President should neither defend nor enforce the law and we should permit Congress to have standing to sue for a judicial declaration regarding the law’s constitutionality. Some contend presidential statutory nonenforcement on constitutional grounds constitutes, in essence, a line-item veto (not checkable by congressional override).69 On this argument, the veto authorized by Article I, section 7, clause 2, is the constitutional mechanism for Presidents to block legislation they deem unconstitutional. If a bill passes—either over a President’s veto, or with a President’s signature because he deems the bill overall too important to veto even though he believes part of it is unconstitutional— then the President’s (and any future President’s) opportunity to block the statute has passed. To permit the President to refuse to enforce part of a statute would give the President more power than the framers intended and the constitutional text warrants. But presidential nonenforcement of a statutory provision does not constitute a line-item veto. Presidential enforcement discretion has long been part of our constitutional order, and is properly seen as part of the executive power. Nothing in the Constitution’s text or tradition prevents it. As Clinton v. City of New York70 makes clear, an impermissible line-item veto exists should the President (with or without congressional authorization) cancel or otherwise formally nullify the legal status of a statutory provision. Nonenforcement—though having much the same real-world effect as formal nullification—is not the same thing. Thus, I again share the view of scholars who argue that the tenets of departmentalism—each branch should 230

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interpret the Constitution in the performance of its functions, ensuring multiple repositories of interpretive as well as other power—should prevail.71 That the President has power to interpret the Constitution in carrying out his functions—even in the face of a constitutional interpretation to the contrary by Congress or the Court or both—does not mean he should always go his own way. He should consider the factors discussed above in determining whether the situation is ripe for a battle with either or both coordinate branches. In addition, David Barron argues that the President should ask “whether the nature of the judgment that has led him to conclude that the statute is unconstitutional is one that a court would be likely to evaluate independently in a justiciable case.”72 Barron’s entirely appropriate concern is that the Court has developed doctrines of deference to the political branches, and thus the President should not defer when the Court is deferring to him (or to Congress)! Where the Court is engaged in de novo review, however, Barron contends the President’s interpretive freedom is at its lowest point.73 Barron maintains as well that presidential review is more defensible when the constitutional question involves an exclusive presidential power (such as the pardon) or a shared one (such as war or foreign affairs), but less defensible regarding a strictly domestic, economic, regulatory statute, where Congress’ role is paramount.74 These seem sensible suggestions for presidential consideration, as does the argument that the President should exercise special caution when interpreting the Constitution to favor an expansive reading of his own powers.75 This was largely the concern with President George W. Bush’s signing statements, not the broader point of principle regarding whether the President has the power to interpret the Constitution against Congress.76 This kind of self-consciousness about interpretive (or political) disobedience is an important aspect of any argument against obligation, for it helps assure against cavalier disregard for the legal or interpretive claims at stake and decreases the chance for a destabilizing effect that might ensue when relevant actors (citizens, regarding political obligation, and government officials, regarding interpretive obligation) go their own way. In closing this section, let’s take a look at Lincoln’s views. In saying he would abide by the Dred Scott decision but resist it as precedent, Lincoln set forth factors a President should account for in deciding whether to defer to Court constitutional interpretations: unanimity; lack of partisan bias; “accordance with legal public expectation, and with the steady practice of the departments throughout our history”; a basis in true historical facts; 231

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“or, if wanting some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years.”77 He also stated factors cutting against deferring to Court precedent: whether decisions had been “made by a divided Court, by a bare majority of the Judges, and they not quite agreeing with one another in the reasons for making it.”78 My principal concern with Lincoln’s approach is the willingness to defer based on the well-settledness of precedent. C ongr es s

Legislators should also consider the factors discussed above. Congress is in a different position from the President, however; it creates rules only, and does not have enforcement powers. This makes the effect on citizen liberty less direct than when the President acts, and therefore we might think members of Congress should be more open than is the President to challenging the Court. Lincoln, who as we have seen believed that the President may challenge Court precedent, held a similar view regarding Congress. He said, “If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should.”79 Stephen Douglas famously held the opposing view.80 Several classic examples show Congress’ challenging the Court, sometimes resulting in the Court’s backing off, sometimes in settings in which the Court has not (yet, perhaps) responded. Perhaps the best example of the former is the Court’s reversal of ground regarding the Commerce Clause during the New Deal, including several congressional attempts at passing child labor regulation.81 The Court’s reversal of ground regarding substantive due process, announcing and then departing from Lochner v. New York,82 is similar, although the pressures were from state legislatures as well as from Congress.83 As an example of the latter, consider Congress’ providing for legislative vetoes after the Court held them unconstitutional in INS v. Chadha.84 Consider also the Federal Communication Commission’s (arguably) overprotecting First Amendment rights by eliminating the fairness doctrine after the Court upheld it.85 The FCC is an independent regulatory agency, but I place the example here because its broad policy choices are legislative in nature. This story also involves a Ronald Reagan presidential veto contrary to a prior Court holding, arguably similar to Jackson’s.86 The Court has not always been kind to congressional challenge. A good example is the Court’s elaboration of section 5 of the Fourteenth 232

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Amendment—which empowers Congress to “enforce” the provisions of that amendment, which include the Due Process and Equal Protection Clauses.87 In Lassiter v. Northampton County Board of Elections,88 the Court sustained a North Carolina English literacy requirement for voting as not facially violative of either the Equal Protection Clause or section 1 of the Fifteenth Amendment.89 Subsequently, Congress enacted section 4(e) of the Voting Rights Act of 1965, providing that a person completing sixth grade in a Puerto Rican school with instruction in a language other than English may not be denied the right to vote in any election because of an inability to read or write English.90 The constitutional ground for section 4(e) was enforcement of the Equal Protection Clause through Congress’ section 5 power. Although the laws upheld in Lassiter and section 4(e) do not cover precisely the same territory, still there was tension between Lassiter’s Equal Protection Clause holding and the theory behind section 4(e). In Katzenbach v. Morgan,91 the Court upheld section 4(e), granting substantial deference to Congress’ judgment regarding appropriate enforcement of the Equal Protection Clause. The case involved New York State provisions’ requiring an ability to read and write English as a condition of voting. The Court distinguished Lassiter not on the facts, but on the question of power presented: “Without regard to whether the judiciary would find that the Equal Protection Clause itself nullifies New York’s English literacy requirement as so applied, could Congress prohibit the enforcement of the state law by legislating under section 5 of the Fourteenth Amendment?”92 The Court answered yes, stating that Congress’ section 5 powers are similar to its powers under the Necessary and Proper Clause of Article I93 and that the deferential judicial review standard for the Necessary and Proper Clause announced in McCulloch v. Maryland94 was appropriate here as well. “Correctly viewed,” the Court said, “section 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.”95 Applying this test to section 4(e), the Court never came close to insisting on its Lassiter understanding of whether literacy tests for voting violate the Equal Protection Clause. Rather, it deferred to Congress’ judgment on the matter: it is “enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did”;96 it is “enough that we perceive a basis upon which Congress might predicate a judgment” that the state’s 233

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English literacy requirement “constituted an invidious discrimination in violation of the Equal Protection Clause.”97 This is a concise and powerful approval of shared constitutional interpretive power. As such, it fits well with my approach throughout this section. It does, though, raise several questions, which are important to separate analytically: (1) Does the fact that section 5 gives Congress power to “enforce” the provisions of the Fourteenth Amendment require Congress to adhere to Court determinations of Fourteenth Amendment meaning, leaving room for congressional discretion regarding remedies only (and perhaps also permitting prophylactic measures to ward off violations of substance as determined by the Court)? (2) In answering (1), are there constitutional arguments limiting congressional intrusion on state power in the name of a conception of Fourteenth Amendment rights more expansive than that deemed appropriate by the Court? (3) If Congress has power to interpret the Constitution differently from the Court, may Congress interpret constitutional provisions to decrease the rights the Court would otherwise find in those provisions, or only to increase them? (4) If the answer to (3) is “only to increase them,” who has the final say regarding whether a law decreases or increases rights? I bracket (1) and (2). These are complex matters of Fourteenth Amendment interpretation, touching on important federalism issues, and do not go directly to my concerns of interpretive obligation. Questions (3) and (4) could arise from various fonts of congressional power, not merely section 5 of the Fourteenth Amendment. Congress could invoke a conception of constitutional rights different from that of the Court in carrying out its powers enumerated in Article I, section 8, and a version of (3) and (4) could arise outside the setting of a battle between Congress and the states. For example, Congress could empower a federal agency to act subject to restrictions based in congressional understandings of constitutional right different from those of the Court. So now, assuming arguendo that the federalism analysis of (1) and (2) doesn’t determine whether Congress has discretion to differ from Court interpretations of the provisions of the Fourteenth Amendment, let’s take a look at (3) and (4). Justice Harlan, dissenting in Morgan, first raised (3),98 and Justice Brennan responded in a now-famous footnote.99 He reasoned that section 5 doesn’t grant Congress power “in the other direction” to scale back the rights-bearing provisions of the Fourteenth Amendment. Rather, section 5 power is limited to “adopting measures to enforce the guarantees of the 234

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Amendment” and grants no power “to restrict, abrogate, or dilute these guarantees.” For example, a federal law authorizing states to segregate public education racially would not be a proper section 5 enforcement measure because the Equal Protection Clause “of its own force prohibits such laws.” A one-way ratchet theory of congressional power regarding interpretation of constitutional rights makes sense, if we accept divided interpretive responsibility while remaining alert to the conundrum of permitting politically dependent branches of government to determine rights often best protected by an independent judiciary. Brennan’s theory acknowledges that the judiciary and the legislature have different functions in preserving constitutional rights: the judiciary sets a floor below which legislatures may not fall; legislatures may construe the abstract constitutional rights provisions more expansively, based on the legislature’s ability to gather and assess social facts and its broad perspective, not the party-oriented litigation perspective that courts see. But if we let Congress determine what counts as an expansion versus a dilution of constitutional rights, then the checking function of the independent judiciary would be lost. Thus, in answer to (4), the Court must sit to determine whether a purported legislative expansion of rights via constitutional interpretation in fact is a dilution. This argument is only implicit in Brennan’s opinion, but it is a fair interpretation of his logic. In particular, the line “the Equal Protection Clause of its own force prohibits [laws authorizing racial segregation in public schools],” in context of Brennan’s approval of the one-way ratchet, must mean the Court has determined that the Equal Protection Clause bars such segregation, and thus Congress may not dilute such a right. It can’t mean that the Equal Protection Clause has some immanent meaning about racial segregation in public schools—the text just says “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws,” and it was the Court that interpreted that text as barring racial segregation in public schools. (The argument in this paragraph should not obscure the case I make throughout this chapter against interpretive obligation to the Court; thus, even after the Court states its view of a constitutional right’s basic content, although the parties to that litigation are bound by the judgment, other government officials are not obligated to follow the Court’s determination of constitutional meaning.) Support for Brennan’s position has been offered by several scholars.100 The tiers of scrutiny that the Court has developed for assessing legislative 235

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action, in various areas of constitutional law, reflect the Court’s awareness of its limited ability to appreciate the social facts regarding the balance of individual right against government power. The Court sometimes applies something lower than strict scrutiny, and upholds legislative action, not because the Court is convinced there is no unconstitutional intrusion on a protected right, but because the contours of the right are murky and the contested social facts hard for the judiciary to assess, and thus it is better to defer to the legislative determination of the appropriate balance. If Congress interprets a constitutional right more broadly than has the Court, this may be an instance of differential institutional abilities and roles; also, because Congress is in a sense acting against interest, by diminishing governmental power, there is less reason for an independent judicial check. The Court need not stick to a strong Marbury/Cooper view of its interpretive role in this type of case. In City of Boerne v. Flores,101 the Court backed sharply away from this understanding of congressional power to interpret the Constitution,102 explaining that Congress’ section 5 power is limited to enforcing the Constitution as defined by the Court, and must be based on clear evidence of violations or meant as a prophylactic measure to ward off such violations. In Employment Division v. Smith,103 the Court had interpreted the Free Exercise Clause of the First Amendment as not requiring stepped-up judicial scrutiny for state action that incidentally burdens religious practice. Congress responded by passing the Religious Freedom Restoration Act (RFRA), pursuant to its section 5 power. The text and legislative history of RFRA make clear that Congress meant to substitute its view of the Free Exercise Clause for the Court’s, requiring courts to apply a form of strict scrutiny to state action that incidentally burdens religious practice. The argument for congressional power follows from my elaboration of Justice Brennan’s Morgan opinion (again, bracketing the federalism question, and focusing just on the separation of powers question): Congress has power under section 5 to construe the Constitution to expand, but not contract, substantive Fourteenth Amendment rights; one of those rights is the right to be free from state deprivation of life, liberty, or property without due process of law; the Court has construed the Fourteenth Amendment Due Process Clause as incorporating much of the Bill of Rights, including the First Amendment, which includes the Free Exercise Clause; thus, Congress has the power to interpret the Free Exercise Clause beyond what the Court says is necessary to protect the free exercise of religion. (Remember, under Jus236

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tice Brennan’s Morgan view, the Court sits to determine what counts as expanding versus contracting constitutional rights. Thus, the Court would have to determine whether RFRA’s broader view of the Free Exercise Clause contracted rights guaranteed by the Establishment Clause, as Justice Stevens believed to be the case.104 As should be clear from my defense of legislative accommodation of religion in Chapter 2, I disagree with Stevens.) But the Boerne Court rejected this understanding of congressional power to interpret the Constitution. Consider the following excerpts from Justice Kennedy’s majority opinion, pronouncing views similar to those expressed in Cooper regarding the relationship between the Court and other government officials in interpreting the Constitution: (1) The design of the [Fourteenth] Amendment and the text of section 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”105 (2) If Congress could define its own powers by altering the Fourteenth Amendment’s meaning, no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.”106

(3) Although the Court affords congressional enactments a presumption of constitutionality, because Congress has the right and duty to “make its own informed judgments on the meaning and force of the Constitution” when it “acts within its sphere of power and responsibilities,”107 nonetheless: When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect 237

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due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control.108

Some of this is specific to questions of section 5 power, and could be seen more as an elaboration of federalism than as an elaboration of separation of powers. But Kennedy’s opinion also endorses two propositions regarding interpretive power: (1) Not only is the Constitution paramount law (clearly true), but also what the Court says the Constitution means is paramount law (not clearly true, and begging the complex question of division of interpretive authority in the same way that Cooper begs that question). (2) The political branches have little to no role in engaging the Court in dialogue about the meaning of the Constitution once it has spoken on the relevant question. This, too, is a complex matter of interpretive authority, and Boerne gives us little in the way of argument to support the proposition. Some scholars have supported the result in Boerne (as a separation of powers matter) by arguing that RFRA represented too sharp and direct an attack on Court precedent, whereas the statutory provision at issue in Morgan was at more oblique odds with the relevant Court precedent.109 Unless this is a point about whether a precedent can properly be distinguished, it’s not clear why Congress must dance lightly around a precedent when it believes a constitutional rights provision should be read more expansively. Is the Court that sensitive to the directness of congressional criticism? Does such directness represent a separation of powers problem? What else is to be said for Boerne, as a matter of separation of powers? First, to protect individual rights, the Court must check the political branches. Second, and related, we should be wary of letting any branch be the judge of the appropriate scope of its powers. Third, to avoid chaos, Court constitutional interpretations must be followed by government officials.110 Regarding the last point, I refer to my contention that chaos arguments cannot do the heavy lifting needed to support Court interpretive hegemony. Regarding the first two points, if we understand congressional interpretive power as a one-way ratchet, with the Court’s determining whether a purported congressional expansion of rights is a rights contrac238

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tion in disguise, then the thrust of the separation of powers argument—a need to check the political branches—loses force. (We can add to this a reminder that parties must obey judgments in specific cases.) If we think there is something to be said for both Cooper and Morgan, and that we should find a way of accommodating both a strong and weak view of Marbury, then the answer would be not Kennedy’s dismissive tone toward congressional responses to Court constitutional interpretations, but rather a more open invitation to Congress to engage in dialogic interpretation about constitutional meaning, to use legislative power to hold hearings, conduct investigations, and develop a record of social facts. Sometimes the Court may have good reason to stick to its guns regarding an interpretive point, but other times the Court could defer to a thoughtful congressional response to a prior Court opinion. Finally, one concern specific to the issue in Boerne is that RFRA requires judges to engage in a kind of fact-specific balancing—to determine which religious claimants should get exemptions and which should not— that Smith had suggested was not judicially administrable in a consistent enough manner.111 On this view, even if one believes it is sometimes appropriate for the Court to defer to congressional constitutional interpretation, here Congress is telling the courts to do something they are not well suited to doing. (This issue regarding RFRA could still be considered a live one, as the Court has not invalidated RFRA’s application to the federal government.)112 As covered in Chapter 2, however, I reject this view of judicial ability to manage exemption claims. F eder a l C ou rt s

Should lower federal court judges kowtow to the Court’s view of what the Constitution means? Because such judges are subject to supervision by the Court, perhaps they should deem their job one of accepting rather than challenging Court interpretations. To the contrary, I would suggest, in part because of the ease of supervision, lower court judges should be open to interpretive challenge, for the Court can take an appeal and reverse. True, the Court has limited time, and cannot take every case, but the incidence of lower court challenges to Court constitutional interpretation is likely to be small. One concern is that like the President, and unlike Congress, lower courts have a direct effect on citizens, and thus should be somewhat more cautious, at least more so than legislators, in departing from Court precedent. That seems an appropriate factor, of some but not enormous weight, 239

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for lower court judges to consider. The appellate review process (and the power to stay orders pending appeal) alleviates much of the concern. If lower court judges started taking their challenge role seriously, would there be unequal treatment across litigants, and is following Court precedent throughout the judicial system an important way of assuring equal treatment? These considerations are relevant, but not dispositive. If a judge can explain carefully why she believes the Court erred, then she should not put aside such explanation to assure that the party before her is treated like the party in some other court where the judge either agrees with the Court or disagrees but refuses to say so. (I am assuming here that what judges say matches how they resolve cases; a smaller step would be to issue holdings that comport with Court precedent, but offer criticism in dicta when appropriate.) Equal treatment of litigants may be purchased at the cost of getting to a correct or better answer—if lower courts believe they are locked in to what the Court has said, the ability to challenge, refine, and possibly overrule Court decisions will be diminished. A notable example of lower court refusal to accept Court precedent occurred when Alabama federal district court Judge Brevard Hand held that the Establishment Clause applied to the federal government only and that the Fourteenth Amendment did not incorporate the First Amendment against the states.113 He wrote, “This Court’s independent review of the relevant historical documents and its reading of the scholarly analysis convinces it that the United States Supreme Court has erred in its reading of history.”114 In granting a stay pending appeal to the Eleventh Circuit of Hand’s order in an otherwise complex school prayer/moment of silence case, Justice Powell wrote, “Unless and until this Court reconsiders the foregoing decisions, they appear to control this case. In my view, the District Court was obligated to follow them.”115 Reversing Hand on appeal, the Eleventh Circuit uttered similar language of interpretive obligation: Under our form of government and long established law and custom, the Supreme Court is the ultimate authority on the interpretation of our Constitution and laws; its interpretations may not be disregarded. . . . Federal district courts and circuit courts are bound to adhere to the controlling decisions of the Supreme Court.116

Affirming on the merits, the Court said it was “unnecessary to comment at length on the District Court’s remarkable conclusion that the Federal 240

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Constitution imposes no obstacle to Alabama’s establishment of a state religion.”117 In situations such as this, we would be better off rejecting lower court judges on the specific legal issues at hand—here, the applicability of the Establishment Clause to the states and the incorporation question— rather than lording stare decisis over them. Regardless of what one thinks about the religious freedom issues in the case, Judge Hand’s position wasn’t crazy; indeed, some constitutional law scholars (not to mention Justice Thomas) agree that the Establishment Clause applies to the federal government only.118 Similarly, consider the approach of two federal district court judges responding to Brown v. Board of Education.119 Judge Scarlett challenged some of the Court’s findings underlying Brown.120 On appeal, the Fifth Circuit said the district court “is bound by the decision of the United States Supreme Court, as are we,”121 and later wrote, “We reiterate that no inferior federal court may refrain from acting as required by [Brown] even if such a court should conclude that the Supreme Court erred either as to its facts or as to the law.”122 Judge Mize directly criticized Brown, and the parties before it were not parties in Brown, but he felt obligated by the Fifth Circuit to follow Brown as precedent. Nonetheless, he asked the Court to reconsider Brown.123 The problem in these cases is the view on the merits, not the assertion of lower court interpretive authority. These judges help the dialogue—even if only by helping superior courts reframe an important decision such as Brown. Just as we believe falsity to be best exposed to the marketplace of ideas so it can be shown to be wrong,124 so should we want government officials to find a way to express their views on constitutional issues, and so should we critique them on the merits, not for opening their mouths. Now let’s look at a famous case from what one might say is the opposite end of the political spectrum. After the Court upheld a compulsory public school flag salute, in Minersville School District v. Gobitis,125 a three-judge federal district court, in a later case, refused to follow Gobitis, believing that the high court had erred badly and that there had been a sufficient turnover of Justices that the Court might reach a different conclusion.126 On review, the Court revisited Gobitis and overruled it, in West Virginia State Board of Education v. Barnette—without any negative comment regarding the district court’s failure to follow high court precedent.127 Sometimes lower courts take the position that Court precedent has been eroded, and thus refuse to follow it, occasionally eliciting sharp 241

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(in my judgment, unnecessary) rebuke from the Court.128 In one such instance, the Court summarily reversed the Ninth Circuit, with this warning: “Needless to say, only this Court may overrule one of its precedents. Until that occurs, [the case that the Ninth Circuit thought had been eroded] is the law, and the decision below cannot be reconciled with it.”129 In another such case, the Court had this to say about the Fourth Circuit’s behavior: [T]he Court of Appeals could be viewed as having ignored, consciously or unconsciously, the hierarchy of the federal court system created by the Constitution and Congress. . . . [U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.130

Evan Caminker’s careful treatment of this issue concludes that the Constitution requires lower federal courts to follow Court precedent.131 His two key textual and structural/historical arguments are that the Constitution deems lower courts “inferior” to the “supreme” court and that the framers had a desire for unified Court authority, brought closer to the people via lower courts that Congress could (and would) establish.132 The latter claim is related to Caminker’s support for systemic arguments for avoiding chaos and achieving uniformity; although there is some benefit in lower courts’ challenging the high court to reconsider its precedents, Caminker admits, they are outweighed by various costs, and thus a bright-line rule of lower federal courts’ following high court precedent is warranted.133 I have resisted the systemic claim throughout this chapter (and book). Caminker acknowledges that “inferior”/”supreme” could mean just that lower federal courts are subject to Court case-by-case supervision and potential reversal, but rejects this in favor of the stronger “must follow high court precedent” reading. Caminker’s main concern with the former reading seems to be that Congress may make exceptions to Court appellate jurisdiction and in such instances there would be no high court supervision.134 There’s no textual inconsistency, though; “inferior” could mean that lower courts are subject to high court supervision and potential reversal if Congress grants appellate jurisdiction (or refuses to carve out an exception). And there’s nothing in the text that speaks to whether lower federal courts must follow high court precedent. 242

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Finally, consider the historical and structural argument that unified federal law is best achieved through lower federal courts’ following Court precedent and that such a rule reduces other systemic costs. This is yet another instance of an argument for obligation based on the purported net benefits of rule following. If, though, rule-sensitive particularism could bring us many of those benefits as well as the benefits of interpretive pluralism, then that would seem best. (As with the President and Congress, in determining whether to challenge Court constitutional interpretations, lower court judges should take into account the factors discussed earlier in this chapter.) My arguments throughout this chapter have been that the Court’s readings of the Constitution are relevant to how government officials do their jobs, but should not be viewed as binding. So long as officials take Court precedent into account and also account for the costs of divergence, rule-sensitive particularism can get us the best of both worlds. It also helps deal with the difficulty of following hard and fast rules. Consider the threshold problem of knowing when a high court precedent is on all fours with the current case and therefore must be followed; the possibility of drawing distinctions, which includes seeing the facts on a different level of generality or with differing weights of relevance, will always be present and always renders rule-ness less than meets the eye. S tat e a n d L o c a l Of f ici a l s

Some scholars contend that the case for dialogic interpretation is stronger at the federal level.135 The President and Congress are coordinate actors to the Court and, according to the theory of departmentalism, must interpret the Constitution, for the nation, when carrying out their functions. State and local officials do not similarly speak for the nation; they are not coordinate to the Court in the way the President and Congress are. Moreover, concerns about chaos and the lack of settlement get stronger when we turn to state and local officials; at least at the federal level there’s only one President and one Congress to challenge the Court’s view of what the Constitution means. In addition, history shows that state and local resistance to the Court—and to the supremacy of the Constitution and federal law—present a more serious threat to the national fabric than does presidential or congressional resistance. These are significant concerns, but not weighty enough to displace the arguments for interpretive pluralism among all government actors. Recall 243

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that all government officials—federal, state, and local; legislative, executive, and judicial—must swear (or affirm) to support the Constitution, and thus arguably must interpret the Constitution in carrying out their assigned functions. This doesn’t answer the question at hand—whether deferring to the Court’s view of the Constitution counts as supporting the Constitution. But it does suggest that at least in the first instance, all officials must think about and interpret the Constitution. And the virtues of dialogue are present for state officials’ challenging the Court as well as for federal officials—offering the Court an opportunity to reconsider its rulings; assembling facts at the ground level (and there are potentially even greater virtues from local than from congressional fact-finding); providing educational opportunities for both citizens and officials in thinking about what the Constitution means. Because my argument includes following the law of judgments when one is party to a case or at least has notice and opportunity to be heard, state and local officials would, though, have to obey court orders, including those of the Court. And they should consider the factors discussed earlier in this chapter. So there are some settlement costs from permitting nationwide constitutional interpretation by officials in the face of Court constitutional interpretations, but such costs are not without end, and are offset by the virtues of dialogue and challenge. Indeed, in accordance with the divided powers motif I have been stressing, we might be more comfortable with executive challenge to the Court at lower levels and less comfortable as the executive’s power becomes more concentrated. On this argument, presidential challenge should be viewed with the greatest skepticism, since the President himself wields enormously concentrated power, while challenge from mayors and other city officials should be the most accepted. Governors occupy an intermediate position in this analysis. Some state legislative challenges to the Court have been part of our unhappy racial history. Consider, for example, the various resolutions adopted by southern states after Brown v. Board of Education. Although some of them stopped with strong critique of Brown and avowed efforts to have the decision overturned,136 many went further, adopting interposition— interposing the sovereignty of the state between the federal government and the citizens—to the end of nullification—deeming Brown null and void.137 For example, the Georgia House of Representatives resolved “to declare the Supreme Court decisions . . . in the school desegregation cases . . . null, void and of no effect; to invoke the doctrine of interposi244

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tion.”138 The Court, continued the resolution, “has deliberately resolved to disobey the Constitution of the United States, and to flout and defy the Supreme Law of the Land.”139 It is the duty of the state, said the resolution, “to interpose its powers between its people and the effort of said Court to assert an unlawful dominion over them.”140 But a supporter of plural constitutional interpretation can object to interposition and nullification, for these doctrines assert a conception of state sovereignty that we put to rest with the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments. It is one thing to say, “We disagree with the Court and will press it to change its mind”; it is another thing to say, “We refuse to recognize the authority of the federal government (here via the Court), and our state sovereignty trumps federal sovereignty when we believe the federal government has strayed from the Constitution.” I have been arguing for the former, not the latter. Although they asserted state nullification of federal statutes rather than Court doctrine, consider also the Virginia and Kentucky Resolutions, deeming the federal Alien and Sedition Acts unconstitutional. My response is the same as with the race examples: the interpretive opposition is not to be dismissed out of hand; but an assertion that state sovereignty is on par with federal may be so dismissed (although one might argue this was less clear before the Civil War than after it).141 Finally, let’s turn to state court challenges to Court constitutional interpretation. Consider the case of Chief Justice Roy Moore of the Alabama Supreme Court.142 He installed a 5,280-pound granite Ten Commandments monument in the rotunda of the state judicial building, in part taking direct issue with the Court’s Establishment Clause jurisprudence. Then he disobeyed a federal court order demanding that the monument be removed. The other eight state supreme court justices eventually ordered the monument removed, and a special state Court of the Judiciary removed Moore from office for violating the federal court order.143 Moore had a duty to obey the federal court order. Had he not disobeyed the court order, however, I would have no issue with his assertion of authority to interpret the Constitution and to seek to change the mind of higher courts. We should distinguish the question of interpretive obligation from the merits and from the law of judgments.144 The Court has been receptive—or at least not dismissive in the way of Cooper and Boerne—to state court challenge to its rulings. One interesting example is Quill Corporation v. North Dakota.145 In National Bellas Hess v. 245

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Department of Revenue,146 the Court, relying on the Due Process and dormant Commerce Clauses, invalidated a state use tax on catalogue sales in a state in which the company had neither outlets nor sales representatives. Over twenty years later, the North Dakota Supreme Court declined to follow Bellas Hess, arguing that changes in the factual and legal landscape rendered its holding no longer supportable. The Court agreed with much of the state court’s reasoning, but disagreed with its conclusion. The North Dakota use tax did not violate due process, said the Court, but the tax was nonetheless invalid on dormant Commerce Clause grounds. The Court did not chastise the state court for daring to challenge its precedents. Rather, it took the state court’s challenge in good faith and on the merits. Facts and the legal landscape had changed, and it seemed reasonable for the state court to prod the Court to reconsider its views. Another good example of a state court challenge to the Court is Payne v. Tennessee.147 In Booth v. Maryland148 and South Carolina v. Gathers,149 the Court had held unconstitutional the use of victim impact evidence during a capital trial’s sentencing phase. Such evidence was admitted in Payne’s capital sentencing hearing. The state supreme court concluded that any Booth/Gathers violations were harmless beyond a reasonable doubt,150 but also, as Justice Marshall pointed out, “did nothing . . . to disguise its contempt for [the] Court’s decisions in Booth and Gathers.”151 The Court revisited the merits issue and overruled Booth and Gathers, offering neither comment on nor critique of the state court’s apparent disregard of precedent. In dissent, Marshall was outraged by the substance—he thought Booth and Gathers stated a correct constitutional proposition— and by the state court’s intransigence. Citing and quoting Cooper, Marshall wrote that the Court’s position in the prior cases “became the law of the land,” and thus that the state court had engaged in “blatant disregard for the rule of law” by “declin[ing] to be bound” by the prior cases.152 Marshall made the same mistake as did Cooper and Boerne: the Court’s constitutional interpretations are not the law of the land, the Constitution is, and permitting government officials to challenge the Court represents a healthy splitting of interpretive power, of keeping repositories of power multiple. Also consider Roper v. Simmons.153 In Stanford v. Kentucky154 the Court held it constitutional to execute two juveniles who were sixteen and seventeen at the time of their crimes. Eighth Amendment jurisprudence turns in part on “evolving standards of decency,”155 however, and in Atkins v. Virginia156 the Court held it unconstitutional to execute a mentally retarded 246

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person, concluding in part that a national consensus had developed against such executions. With both Stanford and Atkins before it, the Missouri Supreme Court in Roper determined that a national consensus against the juvenile death penalty had developed, and thus that the predicate for Stanford had been undercut in the fourteen years since that case was decided.157 The Court affirmed, without questioning the state court’s standing to deem a Court precedent no longer valid. That is, the majority acted as did the majority in Payne. As did Justice Marshall in Payne, Justices O’Connor and Scalia not only disagreed on the merits, but also scolded the Court for failing to upbraid the state supreme court for its interpretive disobedience. O’Connor wrote: “I take issue with the Court’s failure to reprove, or even acknowledge, the [state supreme court’s] unabashed refusal to follow our controlling decision in Stanford.”158 Scalia said: “To add insult to injury, the Court affirms the [state supreme court] without even admonishing that court for its flagrant disregard of our precedent in Stanford.”159 In Roper and Payne, we see the center (O’Connor) and the right (Scalia) joining the left (Marshall) in a misguided Cooper/Boerne view of the Court’s interpretive supremacy. The Court’s Response to Interpretive Challenge How should the Court respond to interpretive challenge from executives, legislators, and judges? Although Chief Justice Marshall in Marbury said, “It is emphatically the province and duty of the judicial department to say what the law is,”160 and although the Court heads the judicial department, we should not conclude that the Court is the only official constitutional interpreter, nor that its attitude toward interpretive challenge should be one of disdain. Although in cases such as Cooper and Boerne the Court speaks as if interpretive challenge were a mistake, much of the Court’s work indicates, to the contrary, a willingness to engage in dialogue with government officials and at times to defer to them, either completely or partially. The Court should pay the kind of attention to interpretive challenge that the challenge warrants and the system can bear. In this way, the Court should think about interpretive challenge as the state should think about citizen disobedience. Thus, the Court should consider whether the challenge was made: in good faith? with serious argumentation? with factfinding as needed? from dialogue, perhaps with the Court or other officials? in response to appropriate factors, as discussed earlier in this chapter? or in 247

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a way that most clearly advances the self-interest of the official? curtly, or hastily? with little support, either legally or factually? These considerations need not lead the Court to complete deference to interpretive challenge, but they should awaken the Court to its fallibility and, according to the strength of the challenge, lead the Court to be more (or less) willing to reexamine its doctrine. I agree with scholars who suggest that the Court should be more open to the constitutional interpretation of other branches in structural cases— raising issues about separation of powers at the national level or the division of power between federal and state governments—and less open to such challenge in individual rights cases.161 This is only roughly correct, for some powers cases can pose rights issues (consider the facts of Chadha,162 where the House of Representatives essentially claimed the power to deport an individual person), while some rights cases can perhaps better be seen through the lens of divided power (for example, it might make sense to allow small communities to experiment with the type of sexual expression they’re willing to tolerate in public spaces). We also should keep in mind the earlier argument for the Court’s deferring to congressional legislation turning on expansive interpretations of rights. The Court has recognized limits to its interpretive powers through dialogue with the political branches and more straightforward modes of deference. Each type represents an acknowledgment by the Court that its Marbury power need not be viewed as monolithically strong. The instances of deference are both explicit and implicit. The explicit political question cases invoke various reasons for the Court’s stepping back from the interpretive fray:163 if the Constitution’s text demands resolution by political actors, there are no judicially manageable standards, or the structure of the political battle can protect the interests of the parties. I am not concerned here with whether each of the political question holdings is correct, nor with whether each of the reasons for deferring to other branches is equally sound. What is important is that the Court has recognized several areas in which its Marbury power is limited, and thus has acknowledged that there is no such thing as a unitary interpretive structure for constitutional law. One excellent example of the Court’s use of the political question doctrine is Garcia v. San Antonio Metropolitan Transit Authority.164 When Congress regulates a subject within its Commerce Clause power, may it apply such regulations to states as well as to private parties? In Gar-

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cia, the Court said yes, but not because it thought that the Constitution clearly rejects any conception of “states’ rights.” Rather, the Court followed a line of commentators—from Madison in The Federalist 45 and 46 to Herbert Wechsler and Jesse Choper165—and concluded that states are strong enough to protect their own interests in the political process, and thus that judicial intervention was inappropriate. The constitutional issue can be worked out through practice. The Court implicitly has recognized limits on its interpretive powers in several areas in which its doctrine is deferential to the political branches. Here are two examples: For many years, the Court treated the Commerce Clause as if it were barely a subject for judicial attention. After its invalidations of New Deal (and pre–New Deal) legislation as exceeding Commerce Clause power,166 the Court in 1937 changed gears and for over fifty years applied a kind of rational basis test.167 The Court didn’t say it was applying the political question doctrine, but in essence it was ceding to Congress the task of determining whether its regulation fell within the Commerce Clause power. This deference was the product of several considerations, including the lack of judicially manageable standards, but also a recognition that Congress is in a better position than the Court to assess whether a problem is of interstate magnitude. Things changed, though, in 1995 with United States v. Lopez,168 when the Court overturned a law regulating firearm possession in a school zone as exceeding Congress’ power to regulate interstate commerce in the private sector. Lopez rejected the notion that the Court’s appropriate function is one of deference in this setting. Five years later, in United States v. Morrison,169 the Court followed Lopez and invalidated the Violence Against Women Act, in part because it exceeded Congress’ Commerce Clause powers. However, in 2005 the Court sustained Congress’ power under the Commerce Clause to “prohibit the local cultivation and use of marijuana” otherwise in compliance with state law.170 So although the deference was whittled back somewhat in Lopez and Morrison, the Court still defers substantially to Congress in this area. Another example of Court deference, also not explicitly invoking the political question doctrine, is rational basis scrutiny under the Equal Protection and Due Process Clauses. If legislation does not affect rights such as speech and voting, and if it does not draw lines based on characteristics such as race or gender, the Court essentially defers to the federal or state legislature’s determination of the constitutionality of the law.171 Thus, laws

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regulating social or economic characteristics that do not implicate a fundamental right or a suspect class almost always stand.172 The Court determines what counts as a fundamental right or a suspect class, and these determinations shift over time—but the point is that there are areas in which the Court is willing to listen more closely to what the other branches say the Constitution permits. One might respond that in each of these areas the Court has not deferred to interpretation by other officials, but rather has independently determined that the claimed constitutional provision has less heft than the private party is arguing. There is a thin line between a merits determination that the private party’s claim is weak and a structural judgment to allow another official or branch to set the scope of its power. What is important for present purposes is that the Court in many areas is far from its Cooper/Boerne attitude of being not only the final but also the sole expositor of constitutional meaning. Now let’s turn to instances better seen as dialogic than deferential; here, the Court is not letting the political branches do all of the interpretive work, but rather is sounding out their views and engaging in interpretive exchange. Examples include Justice O’Connor’s concurrence in the judgment in Thompson v. Oklahoma,173 tentatively concluding that it is unconstitutional to execute persons who committed crimes before turning sixteen, but essentially kicking the matter back to the states for further consideration; two Court decisions vacating and remanding a state court’s refusal to excuse a procedural default, giving the state courts another chance to think the matter over;174 the Court’s refusal, in Gregory v. Ashcroft, to apply the federal Age Discrimination in Employment Act to a state’s mandatory judicial retirement provision, at least without a congressional clear statement that the act should be so applied;175 and Boumediene v. Bush, describing the clear statement rule—according to which the Court construes a statute as steering clear of a constitutional line unless Congress clearly states it has reached that line—as “facilitat[ing] a dialogue between Congress and the Court.”176 Gregory and Boumediene are just two examples of this kind of dialogic clear statement rule. To the foregoing we should add instances of what Henry Monaghan calls “overenforcement,” where the Court sets forth provisional readings of the Constitution, subject to “amendment, modification, or even reversal by Congress.”177 Examples include the dormant Commerce Clause and the Bivens doctrine, and perhaps Miranda.178 In these areas, the Court has expressly stated its 250

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willingness to have Congress play a role in fleshing out the relevant constitutional norms. Finally, my argument earlier against Boerne and in favor of RFRA suggested another mode of constitutional interpretive dialogue, regarding Congress’ section 5 power under the Fourteenth Amendment. Rather than the Court’s engaging in a complex examination of the distinction between remedial (or prophylactic) legislation, which carries out the Court’s view of the constitutional right in question, and substantive legislation, which advances Congress’ perhaps alternative view of the right, it is better to defer to congressional judgment, with two key checks in place. Similarly to Garcia, we can trust states’ ability to fend for themselves in the national legislative process. But unlike in Garcia, where the entire case can be left to politics, here, because individual rights are involved, the Court sits as a backstop to ensure that a legislative reading of the Constitution purporting to expand (or propose an equal substitute version of ) an individual constitutional right is not a dilution of such a right. (And even here, the backstop must be firm for each judgment, but may yield to interpretive dialogue over time.)

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Obligations are all around us. Many are uncontroversial. When we make a promise or a contract, we incur an obligation. We have many obligations, of the natural sort, to our family, friends, and colleagues, and sometimes even to strangers. But as citizens, and as interpreters of law, we should be wary of too quickly believing we owe obligations to the state, or to purportedly authoritative interpreters. Sovereignty in a liberal democracy starts and ends with us, the citizens; to preserve such sovereignty, we should see sources of claimed obligation—the law, regarding primary conduct rules; and prior and higher sources of interpretive wisdom, regarding the meaning of the Constitution—as vying for our allegiance, our acceptance, and not as bearing presumptive authority. Or so I have argued. The mainstream view is that political and interpretive obligation exist—a citizen’s moral duty to obey the law; a constitutional interpreter’s duty to follow prior (original understanding and meaning, and precedent) and higher (the Supreme Court in a hierarchy of interpreters) readers of the Constitution. These obligations are presumptive only—prima facie—and may be overridden. But the burden is on showing override. I have argued for reversing the burden, for requiring those who claim that political and interpretive obligation is due to make a case for it. Such a case cannot be made across the board of laws and constitutional questions, I have maintained; perhaps it can be made law by law or case by case, but it will be up to those claiming deference to show why others should adopt such a posture. Sovereignty, in this way, is permeable, not plenary. We the citizens are, first, human beings with an assortment of normative commitments, only some of which are to the state. There is no good reason to privilege the state as a source of norms, or so I have tried to show. In the setting of political obligation, this means the state should sometimes let us live by lights other than its laws, by crafting legislative accommodations or judicial exemptions. In the setting of interpretive obligation, this means that 252

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although original understanding and meaning, precedent, and the Court in a nondiachronic sense should be part of the interpretive mix, current constitutional interpreters must attend to questions of justification first and last. My argument is not for anarchy, of any stripe. Justification for obedience, to law and to prior and higher sources of constitutional understanding, may be forthcoming, in some instances. But it isn’t available as a wholesale matter, even merely prima facie. Furthermore, my argument doesn’t exalt the centrifugal; government may play a role through its speech and funding in seeking and perhaps achieving a more harmonious republic, integrated in many ways and coalescing around common values. But in its regulatory capacity, the state ought not start from the presumption that the centripetal—its organizing force around the norms of law—is more worthy than norms that fly out from the center, into various corners of people’s religions, philosophies, family values, and other sources of authority. Similarly, constitutional interpreters may press the case for readings that have pedigree over time or specifically in the Supreme Court, but should not be able to insist on such readings merely because of their status as prior or higher authority. Perhaps paradoxically, only by disclaiming plenary sovereignty, remaining unmasked as just one repository of the people’s power, can the state defensibly claim—and perhaps gain—the authority it seeks.

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Introduction 1. I first encountered this term in a different context. See A. Burley 1992 at 1990; A. Burley 1989 at 492 n.133. 2. There may be broader uses of the term “political obligation.” See Horton at 14 (including within political obligation duties “to vote, to serve one’s country in times of crisis . . . [and] to oppose injustice perpetrated by one’s own government”); Tamir at 131 (political obligation “a requirement to support and maintain political institutions, obey the laws, participate in the political process, defend one’s country, and the like”). But this one seems the most common, or the core, and is the one on which I shall be focused. I use the term “moral duty” to obey the law to distinguish a mere “legal duty” to obey the law. Although “legal duty to obey the law” may seem redundant, still we must keep the distinction clear. Additionally, I will not engage in more detailed discussion of what a “moral duty” is. I use the term to refer to what one ought to do, with the possible grounds for the “ought” being restricted to the normative rather than the merely descriptive or power-based. Another terminological point: I use the terms “political morality” and “political justice.” The former refers to morality in the political sphere, most importantly, here, the question of political obligation. The latter—perhaps a more specialized term—refers to an ideal realm of justice, often in contraposition to constitutional justice, which for many is a more limited domain. But see Rawls 1971 at 221 (“political justice” as coterminous with “the justice of the constitution”). 3. See Green 1988 at 225 (for political obligation to obtain, law “must at least in principle be capable of making some difference to our moral reasoning, a difference which does not depend on the nature of the action prescribed”); M. Kramer 2005 at 179 (the question of political obligation is “whether each citizen of a nation is morally obligated to obey the nation’s legal requirements precisely because of the status of those requirements as laws”). 255

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general obligation to obey, then the law does not have general authority, for to have authority is to have a right to rule those who are subject to it. And a right to rule entails a duty to obey”); Simmons 2001 at 130 (“state legitimacy is the logical correlate of various obligations, including subjects’ political obligations”); Soper 1984 at 7, 180 n.42 (“I do not think a meaningful concept of legitimacy can be separated from the notion of at least a prima facie obligation to obey”). See Greenawalt 1989 at 48– 61 (endorsing what I call a thin view of political legitimacy and thus denying correlativity), 61 n.29 (we could formulate a conception of political legitimacy that would entail political obligation, but then the conception of the former “would itself have to be framed with reference to the relevant substantive arguments concerning a duty to obey”). See also Simmons 2001 at 130 n.20 (supporting my reading of what Greenawalt means in rejecting correlativity). I follow Hart’s account. See Hart 1994 at 51– 66, 137–138. William Edmundson adopts a version of this position with the “proximity thesis”: “if being an X entails claiming to φ, then being a legitimate X entails sincerely claiming to φ, and coming within tolerable limits of doing so.” Edmundson 1998 at 47. See Rawls 1971 at 111–116. See also Chapter 1 n. 31. Rawls describes the “liberal principle of legitimacy” as follows: “our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.” Rawls 1993 at 217. See also Freeman at 2039 (on Rawls’ theory, “political power can be legitimately exercised without being wholly just”). Rawls maintains that so long as the “basic structure of society is just, or as just as it is reasonable to expect in the circumstances, everyone has a natural duty to do his part in the existing scheme.” Rawls 1971 at 115. This includes a duty to comply with the laws (even unjust ones, so long as they don’t exceed certain limits of injustice). See id. at 344, 351, 354–355. Seidman at 17 fn. See Edmundson 1998 at 7, 33; Michelman 2003d at 105 n.18; Sartorius at 53–59, 107, 115; M. Smith at 99–100. Arthur Applbaum has recently advanced a sophisticated anti- correlativity argument; his examples, though, suggest a thin, jurisdiction- centered view of legitimacy (according to which I agree correlativity does not hold). See Applbaum at 227–232 (court makes incorrect but legitimate ruling on property issue, affecting citizens’ moral liability but not their moral duties of compliance with law; concludes elaborate stop sign in the desert hypothetical by arguing the law is legitimate but imposes no moral duties). 257

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38. Schauer 1991a at 131. See also Schauer 1992 at 110; Schauer 1991b at 691– 694. 39. See Schauer 1991a at 132. 40. Alexander 2000 at 467 (quoting Alexander 1991 at 695). See also Alexander 1990 at 12, 13, 15; Alexander & Sherwin at 8, 53– 95, 185, 217–218. 41. See Schauer 1991a at 131 (referring to the subject’s “perspective”), 129–130 (referring to the “standpoint” of the subject and the imposer of authority). Sometimes his argument seems to migrate between one about standpoint/ viewpoint and one about reasons themselves. See Schauer 2005a at 1575–1576; Schauer 2005b. See also Alexander & Schauer 2009 at 189; Alexander & Schauer 2007 at 1587; Alexander & Schauer 2000 at 472 n.50; Alexander & Schauer 1997 at 1371, 1375–1376. 42. See Schauer 2009. 43. Id. at 316–17. 44. Schauer 1991a at 129. 45. Id. at 125. 46. Id. at 126. 47. Id. at 93–100. 48. Id. at 132. 49. Id. at 129. 50. Hurd 1999 at 298. 51. Id. at 299. 52. Id. at 299–300. 53. See Alexander & Sherwin at 92. See also Alexander 2000 at 478. 54. Simmons 2001 at 126. 55. See id. at 152. 56. Simmons 2005 at 99 n.4, 190 n.4; Simmons 2001 at 130; Simmons 1979 at 14, 58, 196. 1. Against Political Obligation 1. Richards 1984 at 783. 2. Hume rejected consent as a ground for political obligation, basing it instead on the need for social stability. See Hume 1965a at 54; Hume 1965b at 214, 221–222; Hume 1965c at 268. He claimed that contracts are binding only by convention, based in an underlying argument from social order and combating selfinterest. See Hume 1965b at 215, 226; Hume 1965c at 257, 268. For a broadranging consequentialist approach to political obligation objecting to consent as a ground because, inter alia, it fails to account for external costs, see Flathman 1972. 3. Locke at chap. 2, ¶ 14, and chap. 4, ¶ 22. 4. Simmons 1984 at 792. 5. Simmons 1979 at 57–58. 258

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6. But see Green 2004 at 268 (obligation to keep agreements “must be a nonvoluntary obligation”; we don’t have obligations based on consent alone, and thus political obligation can’t be based on consent alone); Hurd 1999 at 119 (if consent obligates because others rely, then it’s the reliance and not the consent that gives the reason to obey); Raz 1986 at 89 (for consent to political authority to be binding, it must be freely given and there must be good reasons for such consent); Sandel 2000 at 31 (“The more compelling the grounds for consenting to a law or political arrangement, the less true it is that the act of consent creates the obligation to obey”); Soper 1984 at 75–76 (need reason to explain why consent, a type of promise, binds). 7. See Rousseau at 50 (the social order “must be one founded on covenants”); R. Wolff at xxi (“genuine unanimous self-legislation is the foundation of the truly legitimate state, and every other political arrangement is a compromise covertly or overtly designed to aid some interests in society and frustrate others”). 8. See Flathman 1972 at 215 (discussing the view before modern social contract theory, placing authority in God or monarchs, rather than in persons). 9. See Riley at 294 passim; Wall at 273 passim. 10. See Sandel 1998. 11. See Hirschmann at 246: “By declaring that all obligations, to be such, must be taken on voluntarily, consent theory ignores or denies what women’s experience reveals, namely, that obligations do in fact exist that are not chosen but stem from the history and character of human relationships. A fully consistent consent theory would have to include (perhaps paradoxically) the recognition that not all obligations are self-assumed.” 12. Simmons 1979 at 62, 64. 13. See Rousseau at 65. 14. Id. at 60. 15. See id. at 152. Rousseau fudged on this by permitting tacit consent through residence to validate authority over those born after the initial pact. See id. at 135, 153. 16. Id. at 138. 17. See id. at 104. 18. For an argument that this sort of problem doesn’t scuttle consent theory, see Green 1988 at 176–177. 19. R. Wolff at 14–15. 20. See Kant at 140; Rousseau at 28, 32, 64; Rubenfeld 2001. 21. For a helpful discussion of conditions necessary for silence to be taken as a sign of consent, see Simmons 1979 at 80– 81. 22. Locke at chap. 8, ¶ 119. 23. See Hume 1965c at 266. 259

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24. See Greenawalt 1989 at 73; Hume 1965c at 263. Although the high cost of exit cuts against counting residence-plus-benefits as tacit consent, it does not vitiate express consent, because one may remain and comply with the law without actually accepting the state’s authority. See Green 2004 at 278; Green 1988 at 175. 25. See Klosko 2004; Plato at 27 (Crito). 26. See Klosko 2004 at 34. 27. See id. at 35. 28. Id. at 42. 29. See Ball at 911. 30. See Hart 1955 at 185–186. 31. See Rawls 1971 (obligations arise from voluntary acts, id. at 113, and because for citizens “it is not clear what is the requisite binding action or who has performed it,” there is “no political obligation, strictly speaking, for citizens generally,” 114; there is, though, a natural duty to comply with just institutions that apply to us, see id. at 115, 334, 344; officials, though, might have engaged in the requisite acts to incur political obligations, see id. at 114, 344). See also id. at 353 n.13 (“the natural duty of justice is the main principle of political duty for citizens generally, the principle of fairness having a secondary role”). Rawls’ moves here are discussed in Greenawalt 1989 at 162; Klosko 2004 at 12, 28 n.38, 37; Simmons 1979 at 137, 145–146; M. Smith at 83. 32. See Rawls 1964 at 10; Simmons 1979 at 104, 125–129 (discussing Rawls). 33. Klosko 2004 at xix, 35–37. 34. See id. at 39, 42. 35. See id. at 40. 36. See id. at xx, 54, 63. 37. See Klosko 2005. 38. See id. at xxiii, 85– 88, 114. 39. Id. at 88. 40. See id. at xxiii, 91, 98. 41. Recognizing some of these concerns, Klosko more recently has advanced a “multiple principles” approach to political obligation, combining the fair play and consequentialist arguments. See Klosko 2005. For my response, see text accompanying Introduction n.7. 42. See Edmundson 1998 at 21 (“Others have a right to expect that I will obey the law, at least to the extent that they too obey it”); Hobbes at 110 (one must be contented with “so much liberty against other men as he would allow other men against himself”); Ripstein at 3, 26, 35. 43. See Westen. 44. But see Plato at 27 (Crito); Walzer at xiii. 45. For example, see Waldron’s attempt at using participation to yield consent, in Waldron 1999 at 309 (through “something like electoral accountability,” the 260

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48. 49. 50. 51. 52.

53. 54. 55. 56.

57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

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legislature “embodies the spirit of self-government,” and in it we can “discern the manifest footprints of our own original consent”). See Minnesota State Bd. v. Knight, 465 U.S. 271 (1984). See Michelman 2003c at 345 (central dilemma of liberalism is the moral legitimacy of governmental coercion in the face of pluralism/disagreement); Seidman at 52–53 (fitting current constitutional answers to our history and practice will seem to privilege a certain “way of understanding the world that sensible people . . . share”; wrong to label some people crazy for not sharing the sense of fit). See Michelman 2003b at 654; Michelman 2003c at 346. See Michelman 2004 at 659. See Michelman 2003a at 3; Michelman 2003b at 656; Michelman 2003c at 346. Michelman 2004 at 661. Michelman 2003c at 365. For my concerns about the qualifier “reasonable” in this setting, see the discussion of Rawls later in this chapter. For description and discussion of Michelman’s work, see Balkin 2004. For a related view, focusing on obligation rather than legitimation, see Dworkin 1986 at 190 (“Political obligation is . . . not just a matter of obeying the discrete political decisions of the community one by one. . . . It becomes a more protestant idea: fidelity to a scheme of principle each citizen has a responsibility to identify, ultimately for himself, as his community’s scheme”). Seidman at 7. Id. See id. at 56. See also Eisgruber 2001 at 52–56, 85– 86. Seidman at 9. Note the elision of consent and participation. Seidman also expresses concern with mystification of the Marxist sort—ceding enough voice (and other rights) to outliers so they don’t rise up, so they perceive the system as legitimate and step back from questioning the dominant conception of the polis, even as they are basically being stepped on. See id. at 95 fn., 98. See id. at 21–28, 33. Michelman 2003d at 125. See Ely. Balkin 2011 at 44. Id. at 2. Id. at 5. Id. at 6. Id. at 8. See id. at 34–35. Id. at 50. Id. at 51–52. Id. at 2. 261

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69. 70. 71. 72. 73. 74. 75.

76. 77. 78. 79.

80. 81. 82.

83. 84.

85. 86. 87. 88. 89. 90.

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Id. at 14. For a related view, see Edmundson 1998 at 50, 52, 56. Taylor v. Sturgell, 553 U.S. 880, 898 (2008). Id. See cases cited id. at 893– 95. See also D. Shapiro at 75, 77–78, 81. See cases cited in 553 U.S. at 895. See cases cited id. at 894– 895. See also D. Shapiro at 83– 92. On the requirement of adequate representation in class actions, see Fed. R. Civ. Proc. 23(a)(4); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625–28 (1997); Hansberry v. Lee, 311 U.S. 32, 42–45 (1940). Rule 23(b)(1) and (b)(2) class actions do not require notice and opportunity to be heard. Rule 23(b)(3) class actions—involving individualized monetary recovery—require notice and opportunity to be heard. See Fed. R. Civ. Proc. 23(c)(2) (for (b)(3) class actions, requiring “individual notice to all members who can be identified through reasonable effort”; for (b)(1) and (2) class actions, the court “may” “direct appropriate notice to the class”). 553 U.S. at 885. See id. at 891; Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001). See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). See D. Shapiro at 16. Moreover, at least in the federal system, neither the legislative nor executive branch may disturb final court judgments. See id. at 14; Fallon et al. at 85– 93 (“The Problem of Revision of Judicial Judgments”). 388 U.S. 307 (1967). For further discussion of the collateral bar rule, see Greene 2005b at 1660–1665. 388 U.S. at 320–321. Supporting the idea that specific court orders should be obeyed, even if precedent lacks such a binding force, and thus supporting the predicate for the collateral bar rule, see Lincoln 1989a at 472–473; Lincoln 1989b at 221; Meese 1987a at 983. See Paulsen 2008b at 1248 n.89, 1285–1295; Paulsen 1994a at 222–224, 252, 262, 297, 301, 303–306, 321–340. See id. at 223–224, 301, 321–322. Paulsen also rejects the concern specific to our federal system that executive resistance to court orders would render such orders nonfinal and thus in violation of Article III. See id. at 303–306. Cover at 4. Id. at 68. Id. at 28–29. Id. at 31. Id. at 32. Id. at 32 n.94. 262

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95. 96. 97. 98. 99. 100.

101. 102. 103. 104. 105. 106. 107. 108.

109. 110. 111. 112. 113. 114.

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Id. at 28. Id. at 55. Id. at 57 n.158. See Rawls 1971 at 115, 334. For a different take on a natural duty argument for political obligation and legitimacy, see Barnett 2004 at 45 (absent consent, “a legitimate lawmaking process is one that provides adequate assurances that the laws it validates are just”; laws are justifiable if necessary to protect others’ rights and not violative of preexisting rights, id. at 44; with appropriate rights of political participation and voice to ensure justice, laws are “binding in conscience unless shown to be unjust,” id. at 48). See text accompanying supra n.31. Rawls 1971 at 115. See id. at 344, 351, 354–355. See Rawls 1993 at 320; Rawls 1971 at 336, 354–355. See also id. at 240, 269, 497 (discussing Hobbes). Green 1988 at 227. (1) There will be times when noncompliance is preferable, to “discourage individual unjust outcomes” or “to improve justice in the processes by which decisions are reached.” Greenawalt 1989 at 166. (2) Sometimes disobeying one’s own government might lead to more justice internationally. See Scheffler at 67–79. (3) Sometimes we might better assist in the establishment of just institutions by disobeying domestic law. See Simmons 2005 at 159. Rawls 1971 at 334. Id. at 115. Rawls 1993 at xvi. Id. at 13. Id. at 35. Id. at xviii. Id. at xix. It is difficult to know whether Rawls was disavowing the comprehensive liberalism of A Theory of Justice, adopting political liberalism in its stead, or defending comprehensive and political liberalism as two separate ideas. Some passages in Rawls, Justice as Fairness: A Restatement suggest the former view. See Rawls 2001 at xii, 12, 186–187. But see Freeman at 2038 (suggesting the latter view). For my purposes, it’s not important which of these is the case. Rawls 1993 at xxvii. Id. at 176. Id. at 94. See id. at 54–58. See id. at 10. See id. at 39. 263

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115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127.

128. 129. 130. 131. 132. 133.

134. 135.

136. 137. 138.

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Id. at 134. See id. at 60– 61, 65, 127–128, 144–150. Rawls 1971 at 334. Rawls 1993 at 162. Id. at 214. See id. at 214–215. Id. at 216, 231. See Rawls 2001 at 90– 91 (describing the “wide view” he ultimately adopted); Rawls 1997 at 783–787; Rawls 1995 at xlix–l. Rawls 1993 at 217. Id. at 247. See id. at 248–249. Id. at 250. See id. at 138, 150–154, 190–200. See also Green 1995 at 270 (“the consequences of a liberal political order will not be neutral among experiments in living”). This kind of agnosticism—key to political liberalism for Rawls and for me, although I claim Rawls doesn’t take it far enough—is not to be confused with skepticism about the possibility of political and moral judgments’ being true. On this I agree with Rawls. See Rawls 1993 at 63, 150–154. See Nussbaum 2011 at 22–33 (advancing a related argument critiquing Rawls’ use of “reasonable” in an epistemic sense). Rawls 1971 at 211. Id. at 215. See also id. at 220, 370. Rawls 1993 at 200. Rawls 1971 at 115. See Galston 1991 at 147 (“for some, the costs of treating pluralism as a ‘fact’ are prohibitive, for it is a pluralism that excludes them”). Thomas Nagel offers a related critique of Rawls’ veil of ignorance/original position model from A Theory of Justice. See T. Nagel at 9 (“The suppression of knowledge required to achieve unanimity is not equally fair to all the parties”). Mark Rosen offers a critique of Rawls that is in many ways compatible with mine. See Rosen 1998. See Wellman 1997 at 182. See also Simmons 2001 at 66– 68. Cf. Green 1988 at 232–234 (explaining the difficulty theories of political obligation have with being particularized enough and also general enough). See Hirschman. Hardimon at 346 n.21. Scheffler at 64. See also Fletcher at 21 (giving an “account of the core sense of loyalty as an obligation implied in every person’s sense of being historically rooted in a set of defining familial, institutional, and national relationships”); Sandel 1996 at 14 (critiquing political obligation’s focus on “duties universally 264

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144. 145.

146.

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owed or obligations voluntarily incurred”; this “fails to capture those loyalties and responsibilities whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the par ticular persons we are—as members of this family or city or nation or people, as bearers of that history, as citizens of this republic”). See Scheffler at 105. See also Sandel 1996 at 16 (“claimed by the history that implicates me in a par ticular life”), 65 (“claimed by religious commitments they have not chosen”), 343 (“claimed, at one time or another, by a wide range of different communities, some overlapping, others contending”). Cf. Beckett at 8: “Vladimir: Suppose we repented. Estragon: Repented what? Vladimir: Oh . . . (He reflects.) We wouldn’t have to go into the details. Estragon: Our being born?” Hardimon at 348. See Scheffler at 59– 60, 97–108. This is clear in Scheffler. See id. at 59–60, 64, 97–108. Hardimon states that citizenship (as well as family membership) is a noncontractual intrinsically valuable social role (see Hardimon at 342–348), but is less clear about how obligations are entailed. For political obligation, perhaps role identification (and not merely its value) is required: “If a woman identifies with her role as citizen, this provides her with a reason—a moral reason—for paying her taxes.” Id. at 362. For related critiques, see Green 1988 chap.7; Simmons 2001 at 81, 84– 85, 98. See Wellman 2001 at 224–229. See also Simmons 2001 at 53: “The central claim of the position I wish to reject is that moral obligations are generated by mutual caring (love, friendship, etc.)”; basic argument is that love etc. is on a different plane from obligation. See Wellman 2001 at 224–229; Wellman 1997 at 186 (gives example of failure to attend sister’s wedding, saying we deem it not a breach of duty but rather a matter of virtue ethics). See Scheffler at 56– 62, 73–75. See id. at 59, 97–108. See id. at 60, 62, 93, 108. See Green 2004 at 269–270; Simmons 2005 at 113; Simmons 2001 at 77; Wellman 2001 at 221; Wellman 1997 at 188. Dworkin 1986 at 215. See Hume 1965b at 228 (“A father knows it to be his duty to take care of his children: But he has also a natural inclination to it”). See http://2010.census.gov/2010census/. See Greene 2001; Greene 2000b. See Greene 2010; Greene 2000b at 49–52. See Hume 1965c at 263 (to the extent the people consent to the ruler, they do so “because they think, that, from long possession, he has acquired a title, independent of their choice or inclination”). 265

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181. 182. 183. 184. 185. 186. 187. 188.

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Dworkin 1986 at 205. For a similar construction of integrity, see Postema 2004. Dworkin 1986 at 166. Id. See id. at 167, 176. Id. at 180. See id. at 167, 225. Id. at 214. Id. at 211. Id. at 201. Id. at 199–200. Id. at 199. Id. at 196. Id. at 199. Id. at 201. Id. See id. at 52, 231, 239, 255, 411. Id. at 201. See id. at 214. Id. at 197. Id. at 216. Id. at 199. See also id. at 211. Id. at 201. Id. For Simmons, this is the death knell for Dworkin’s theory as a candidate for realistic application. See Simmons 2001 at 78. Dworkin later rephrases this second condition in a way that makes it seem easier to meet; he writes that the model of principle “makes [the] responsibilities [of citizenship] fully personal: it commands that no one be left out.” Dworkin 1986 at 213. Not leaving anyone out is not the same as understanding that one’s obligations run “from each member to each other member” in a personal way. For a similar critique of this second condition in the political obligation setting, see S. Perry 2006a at 190–191 (adding that political obligation, in form, is not meant to be personal). See Dworkin 1986 at 167–175. Id. at 188. Id. at 211. Id. at 190. Dworkin 2011 at 321. Dworkin 1986 at 190, 211. Id. at 206. Id. at 208. 266

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189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207.

208. 209. 210. 211. 212. 213. 214. 215.

216.

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Dworkin 2011 at 317. Green 2004 at 272. Id. See Dworkin 2011 at 317, 321; Dworkin 1986 at 191. See also Sreedhar and Delmas at 745. Dworkin 1986 at 190. Id. at 192. Id. at 188. Id. at 191–192. Dworkin 2011 at 319. Id. at 300. Id. at 212, 312. Id. at 312. See id. See id. at 320. Id. at 319–320. Id. at 324. For elaboration of Dworkin’s partnership model of democracy, see id. at chap. 18 (“Democracy”). Id. at 320. See id. at 321, 323. Cf. Sreedhar and Delmas at 757 (“localized failures to respect dignity compromise the legitimacy of the entire community, and thus nullify the political obligation of all of its citizens”). S. Perry 2006a at 196. See id. at 195. Id. at 202. Id. See id. at 204. See id. at 199. See Soper 2002 at 46–47, 57, 96. See also Soper 1984 at 55. See id. at 80. See also Soper 2002 at 54 n.5 (supporting correlativity of political legitimacy and political obligation); Soper 1984 at 7, 180 n.42. (1) Soper’s argument combines a theory of law with a theory of political obligation. The combination of the rational basis for the state plus good faith official action is necessary for both. (2) According to Soper, the state has (justifiable) authority, as officials lead by acting in good faith from public purposes. See id. at Part I. Soper’s view of officials as leading rather than serving (with “serving” meaning acting according to reasons the subjects would otherwise have) distinguishes his view of authority from Raz’s. See Soper 2002 at 43–48; text accompanying infra nn.365–378. See id. at 122, 140. 267

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217. See id. at 160–167. 218. See id. at xiv, 19. Soper notes the similarities between his theory and theories of associative obligation (see id. at 169), but says his theory differs from Dworkin’s in two ways: (1) Dworkin’s theory focuses on the effect on others from one’s willingness to obey/defer, whereas Soper’s adds the effect on oneself, i.e., self-respect from acting as one would want others to act; (2) Dworkin’s theory requires that a par ticular community reveal practices of equal concern, whereas Soper’s applies more generally. See id. at 170–171. 219. See id. at 103. 220. See id. at 24–25. 221. See id. at 48–49, 104–105, 137–138, 156–157, 160–167. 222. Id. at 25. 223. Id. at 26. 224. See id. at 137. 225. See id. at 137–138. 226. Id. at 139. 227. See id. at 181. 228. See id. at 183. 229. See id. at xii, 48. 230. See id. at 45. 231. Id. at 152. 232. See id. 233. Id. at 152–153. 234. Id. at 157. 235. Id. 236. Id. at 179. 237. See id. at 157, 161. 238. See id. at 160–161. 239. See id. at 121–122, 128. 240. Id. at 136. 241. Id. at 137. 242. See id. at 134. 243. See id. at 137–138. 244. Id. at 164. 245. See id. at 138, 139, 181. 246. Id. at 103. 247. See Soper 1984 at 65– 67. 248. See Soper 2002 at 103, 110–111, 122–123, 136, 162–167. 249. Id. at 170. 250. See id. at 138. 251. Id. at 136. 268

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256. 257. 258.

259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 280. 281. 282. 283. 284. 285.

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Id. at 163. See id. at 181. Id. at 183. See id. at xii (“need to act before moral truth can be established”), 135 (admits his theory of deference “may have far more to do with the uncertainty of value judgments and the diversity of plausible moral theories” than with the calculus of respect he develops). Id. at 179. See id. at 157, 161, 174, 181. Id. at 139. For a rejection of this type of argument, see Green 2004 at 275 (“The mere fact that someone is trying in good faith to rule you is no reason whatever to obey”). Soper 2002 at 179. See Gilbert at vii. For a related view regarding legal theory, see S. Shapiro 2009 at 250–255 (developing theory of “shared plans”). Gilbert at 12. Id. at 14. See id. at 192–197, 201, 261–263. See id. at 75–76. Id. at 68 (quoting Prichard at 198). See Gilbert at 80– 82, 228–229. Id. at 235. Id. at 234. Id. at 280–281. See id. at 102. Id. at 103. See id. at 105–106. See id. at 116–120. Id. at 121. Id. at 138. Id. at 168. See id. at 140. Id. Id. at 141. See id. at 154. See id. at 145. Id. at 124 n.35. Id. at 169. Id. See also id. at 289 (referring to a plural subject’s joint commitment via “the gradual development of a social rule”). Id. at 169. 269

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308. 309. 310. 311. 312. 313.

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Id. at 175. See id. at 213. Id. at 238–239. Id. at 290. Id. at 145. Id. at 242. Id. Id. at 243. See id. at 268–269. Id. at 290. Id. at 168. See id. at 52. See Green’s related argument, supra n.24. Id. at 121. See id. at 168. Id. at 201. See id. at 175. Id. at 290. See id. at 269, 272 (engaging in what she acknowledges is an interpretive disagreement, on the same point, with Simmons). Id. at 169. Id. at 296. Id. John Horton also advances a theory of political obligation as associative obligation. For him, political obligation goes beyond a duty to obey the law. See Horton at 14. The conditions for political obligation are met, he argues (see id. at 187), if the polity offers basic peace and security (see id. at 162), if one’s identity as a member of the polity is ascribed as a matter of convention (see id. at 183), and if such ascription is “complemented and supported by an acknowledgement of membership by the member” (id.). To the extent this theory does not require all citizens to obey the law as a matter of course, it is orthogonal to the position I am critiquing. To the extent the conditions are easily met—most citizens will feel some “sense of belonging to, or identification with” the polity (id.)—triggering (inter alia) a general duty to obey the law, then I have the same concerns already covered in the text. See Hart 1994 at 94– 97. Id. at 89. Id. at 90. Id. at 91. Id. at 89. For a discussion of Hart’s different uses of “external point of view,” see S. Shapiro 2006 at 1158–1161. Hart 1994 at 11. 270

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320. 321. 322. 323. 324. 325. 326. 327. 328.

329.

330.

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Id. at 55–56. Id. at 255. For a helpful discussion, see Coleman at 74– 83. Hart 1994 at 203. Id. at 257. S. Perry 2006b at 1173. Id. Perry adopts the cognitivist view; for him, acceptance involves a belief that the law has legitimate authority. However, says Perry, whether “the law’s claim to authority can ever in fact be justified” is a different matter. Id. at 1206. S. Shapiro 2006 at 1167. Hart 1994 at 137–138. Id. at 138. Id. Zipursky at 1229. Goldberg & Zipursky at 1575. See Zipursky at 1243–1245. Id. at 1243. (Thanks to Mark Gimpel for this term.) Perhaps this matches what Zipursky means when he writes, “legal obligations are their own kind of ‘ought.’ ” Id. at 1247. See also Coleman at 89 n.26 (“In claiming that the language of law is the language of ‘ought,’ one is not thereby committed to a certain view of the nature of the legal ‘ought’; nothing about whether it is a moral ‘ought,’ a prudential ‘ought,’ or some other kind altogether”); M. Kramer 2004 at 220 (“Although the meaning attached to the terminology of ‘obligation’ and ‘duty’ in a legal context clearly overlaps with the meaning attached to that terminology in a moral context, the dissimilarities are even more important. . . . [T]he language of ‘obligation’ and ‘duty’ is fully available to legal regimes that do not make any pretensions to moral correctness”); M. Kramer 1999 at 80 (“statements of [legal obligations] are not perforce statements of [moral obligations]”); Raz 1979 at 38 (legal positivism semantic thesis is that rights and duties don’t have the same meaning in legal and moral contexts). Cf. Gewirth at 59 (must distinguish between descriptive and prescriptive obligation statements). But see S. Perry 2006b at 1174 (“Adopting a cognitivist understanding of the internal point of view, and of the meaning of normative statements generally, . . . leads naturally to the recognition that the meaning of normative expressions is . . . the same in both moral and legal contexts. Legal normativity is moral normativity, and the law’s claim to authority is a moral claim”). Raz 1999 at 173–174. See Tamir at 135 (“Associative obligations must . . . be based on some sense of belonging, on an active and conscious discovery of one’s position, and on an affirmation of this position”; as such, they are voluntarily assumed). Raz 1999 at 174. 271

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331. See Hart 1994 at 60– 61, 116. 332. See id. at 116, 201. See also D. Levinson at 662, 705 (discussing the sustained sociopolitical support needed to make and maintain stable political systems, constitutional or otherwise). 333. See O. Holmes at 459. 334. For a critique of this position, following the cognitivist approach to normativity, see S. Perry 2006b at 1203. 335. See Hobbes at 88, 107; Hume 1965a at 54; Hume 1965b at 222. 336. See Bentham at 501 (“Natural rights is simple nonsense: natural and imprescriptable rights, rhetorical nonsense,—nonsense upon stilts”). 337. See Hobbes at 152, 253; Hume 1965c at 267; Locke at chap. 2, ¶ 13; Plamenatz at 145; Rousseau at 60– 61. It’s not always clear whether each of the foregoing offers the argument against self-interest to support political obligation or to support political legitimacy or both. For a use of this argument for political legitimacy but not political obligation, see Michelman 2003c at 353. 338. See Gilbert at 279; Hume 1965c at 268; Lincoln 1989a at 29–36. Gans suggests another angle on the contagion argument: if people see us disobeying, they might choose to do so as well to even things out with us. See Gans at 72–73. This connects a consequentialist argument about systemic costs with a fairness concern. 339. See Greenawalt 1989 at 97, 186. For a similar argument supporting the state’s claims, but not the case for political obligation, see Alexander 2000 at 465. 340. It’s not always clear whether proponents of this view offer the argument for political obligation or legitimacy or both. For the argument from settlement to back the state’s claims but not to support political obligation, see id.; Alexander & Schauer 2007 at 1580, 1585 n.14. 341. See Waldron 1999 at 111–118, 245, 300. 342. See Henry at 275; Waldron 1999 at 7. Waldron’s arguments support both political legitimacy and obligation. For the argument from coordination supporting the state’s claims but not political obligation, see Alexander 2000 at 465; Alexander & Schauer 1997 at 1371, 1374; Schauer 1991a at 125. Some argue that there’s no distinctive case for law’s legitimate authority (or a correlative obligation to obey) in coordination situations. See Green 1988 at 98, 116, 120–121, 123; Raz 1979 at 249. 343. Wall at 287. Related is the view associated with Rousseau and Kant that freedom and autonomy depend on living under law one gives oneself. See also Edmundson 1998 at 14; Perkins at 115. 344. See Smart at 9 (“Act-utilitarianism is the view that the rightness or wrongness of an action is to be judged by the consequences, good or bad, of the action itself ”). Cf. B. Williams at 79 (“utilitarianism is one sort of consequentialism— the sort . . . which is specially concerned with happiness”). 272

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345. Simmons 2005 at 126. See generally Lyons 1965 at 1–29 (discussing “Utilitarian Generalization”). 346. See id. at 60– 61 (summarizing the complex problem of determining relevance in applying utilitarian generalization). 347. See Flathman 1972 at 62, 268–274. 348. Greenawalt 1989 at 96. See Smart at 9 (“Rule-utilitarianism is the view that the rightness or wrongness of an action is to be judged by the goodness and badness of the consequences of a rule that everyone should perform the action in like circumstances”). David Lyons contrasts “primitive” rule utilitarianism (“simply utilitarian generalization applied in a certain way”) with “ideal” rule utilitarianism. Under the former, “[a]n act is right if, and only if, it conforms to a set of rules conformity to which in the case in question would maximize utility.” Lyons 1965 at 139. Under the latter, “[a]n act is right if, and only if, it conforms to a set of rules general acceptance of which would maximize utility.” Id. at 136 and 140. Lyons argues that utilitarian generalization and primitive rule utilitarianism collapse back into act utilitarianism; ideal rule utilitarianism is more complex in this regard. On the former, see id. at 62–118; on the latter, see id. at 119–160. See also Green 1988 at 52 (“AU and RU are extensionally equivalent; where the former recommends breaking a rule, the latter recommends changing it and thus both end up making the same prescriptions”); Simmons 2005 at 127 (“When we adjust our examples so that the consequentialist generalization arguments seem to yield plausible conclusions—by generalizing over more specifically described acts—we . . . render the argument equivalent to a direct consequentialist argument”). 349. Greenawalt 1989 at 107. 350. See B. Williams at 146 (“utilitarianism is forced to regard ‘commitments’ . . . externally, as a fanatical deviation from the kind of preference which can be co- operatively traded off against conflicting preferences,” but it may be that “the happiness of many men—by criteria of happiness which utilitarianism would itself have to recognize—lay in their identification with these commitments, these self-transcending social objectives which do not allow of trade- offs”). 351. Alexander & Sherwin at 54. 352. Schauer 1991a at 97. For a view compatible with mine, see Hurd 2005. 353. Schauer 1991a at 98. Schauer says that rule-sensitive particularism might make more sense from the viewpoint of the subject’s deciding what to do than from the viewpoint of the political society’s deciding how to allocate decision-making power. See id. at 98 n.26. For more on Schauer’s “asymmetry of authority” argument, see id. at 128–134; text accompanying Introduction nn.38–53. 354. See Hurd 2005 at 84 (“if [my children] commit by autonomous choice more mistakes than I would commit on their behalf, they at least will have the 273

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358. 359. 360. 361. 362. 363. 364.

365. 366. 367. 368. 369. 370. 371. 372. 373. 374. 375. 376. 377. 378.

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satisfaction of their mistakes being theirs and not mine. And it strikes me as a minimum condition of a well-lived life that one own one’s mistakes as fully as one own[s] one’s successes”); Simmons 1979 at 200 (“[C]itizenship does not free a man from the burdens of moral reasoning”); Thoreau at 29 (“It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume, is to do at any time what I think right”); R. Wolff at 14 (“Since man’s responsibility for his actions is a consequence of his capacity for choice, he cannot give it up or put it aside”). See Morgan at 222–240 (“The Founding Fathers’ Problem: Representation”). Marx at 71. See Seidman at 56 (greater threat not from instability but rather from settlement’s tendency toward stasis; “such a society loses the link between its fundamental structures and the values and aspirations of its people”). See Greene 1996a. See Greene 1997a; Greene 1994a at 177–179. See Greene 2001. See Sunstein 1993 (critique of “status quo neutrality” throughout the book); Sunstein 1987. See Sunstein 2008 at 1555–1557; Vermeule at 1497–1499. Wall at 283. See Hurd 1999 at 29 (disagreement about right action doesn’t establish moral relativism; “it simply means that we cannot now reach agreement about [right action’s] specification”). See Raz 1986 at 55–56, 59, 67. See id. at 41–53. See id. at 29–30, 48–51. See id. at 53–57, 61, 70, 74, 76. See id. at 55–56, 59, 67. See id. at 41–42, 46, 48, 57– 62, 67– 69. See Raz 1979 at 24. See Raz 1986 at 35. Raz 1979 at 29. See id. at 17–18, 29–30. See id. at 3–5; Raz 1986 at 57. See Raz 1979 at 5, 27. See Raz 1986 at 70, 76–78, 104. See id. at 78. Soper argues in related fashion that although in our culture we often defer to theoretical authority (doctors, engineers, etc.), we don’t have a practice of deferring to practical, i.e. moral, authority. See Soper 2002 at 38–50. See also Hurd 1999 at 127 (lawmakers might not be specially capable of resolving difficult moral problems). 274

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379. 380. 381. 382. 383.

See Raz 1986 at 62. See id. at 61– 62. See id. See Schauer 1991a at 196–206. See Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring in the judgment). Arguably, Scalia also applied the absurdity exception in Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting), by refusing to accept that trading a firearm for drugs counts as “using” a firearm. See also Scalia 1997 23–24. 384. See Schauer 1991a at 84 n.13, 117–118. 385. See id. at 45 n.8, 52 n.18, 84 n.13, 88– 93, 110, 117–118 (rule must be applicable in at least some cases of internal failure, i.e., where the justification for the rule fails in the case at hand, and also must “have some degree of resistance to external defeasibility,” i.e., where “particularly exigent factors external both to the rule and its justification” override the rule in the case at hand), 203–205. 386. Id. at 89. 387. Id. 388. Id. 389. Id. 390. See Alexander & Sherwin at 68– 73 (critiquing Schauer’s presumptive positivism); Postema 1991 at 814– 815 (“the notion of presumptively proper rules, or presumptive exclusions, is not coherent. If we attempt to treat the opacity of rules as presumptive, we do not merely weaken their status as rules, we change them into something else. The presumptive model collapses the difference of kind between proper rules and rules of thumb into a difference of degree”). 391. Schauer 1991a at 90. 392. Id. 393. Id. at 91. 394. See Greene 2006b; Greene 1997b. 395. Schauer 1991a at 153. 396. Id. at 162. 2. Accommodating Our Plural Obligations 1. Cf. Simmons 1979 at 73 n.m (not aware of any consent theory attempt at such a solution). Cf. Green 1988 at 188, 219, 234, 240, 247 (offering a related theory of partial political obligation and legitimacy, without the focus on representations of exit). 2. For an argument reaching a similar conclusion though not from the same premises, see Greenawalt 2008 at 300–316. 3. 494 U.S. 872 (1990). 275

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4. But see Greene 1993 at 1640–1643 (limiting the constitutional argument to the religion- clause setting). 5. See id. at 1642 & n.101; Richards 1986. 6. See Eisgruber & Sager 2007. 7. See Greene 2005a. 8. See Barry at 300. 9. Id. 10. Id. at 318. 11. Id. at 79. 12. Id. at 80. 13. Id. 14. Id. 15. Id. at 132–133. 16. Id. at 18. 17. Id. at 136, 138. 18. Id. at 236. 19. Id. at 258. 20. Id. at 262. 21. Id. at 285. 22. Id. at 25–26. 23. Id. at 28. 24. Id. at 34. 25. 494 U.S. 872 (1990). 26. Id. at 171. 27. Id. at 133. See also Smith, 494 U.S. at 888, 890 (reasoning that the adoption of a system of exemptions would be “courting anarchy” and that a no- exemptions rule “must be preferred to a system in which each conscience is a law unto itself”). For the original Supreme Court invocation of this concern, see Reynolds v. United States, 98 U.S. 145, 167 (1879) (rejecting Mormon claim for exemption from antibigamy laws). 28. Barry at 42. 29. Id. at 33, 35, 40–48. 30. Id. at 44. 31. Id. 32. See Kymlicka 1995a at 108–115 (critiquing Barry’s presumption of majoritarian neutrality). 33. See Eisgruber & Sager 2007. 34. Id. at 82. 35. Id. at 84. 36. Id. at 18.

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37. Id. at 89. 38. Id. at 245. 39. Id. at 92 (discussing Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 [1988]). 40. I agree with the Court’s assessment of a sufficient state interest in the following cases: Lyng, 485 U.S. at 447–453 (by analogy to Roy, judicial balancing inappropriate re: claim for government to build road one place rather than another based on claimant’s religious beliefs); Bowen v. Roy, 476 U.S. 693, 699–701 (1986) (government’s conduct of its own internal affairs—here, the use of an Indian girl’s Social Security number, claimed to violate the family’s religious beliefs—not subject to judicial balancing); Bob Jones University v. United States, 461 U.S. 574, 604 (1983) (compelling state interest in denying taxexempt status to racially discriminatory private schools); Jacobson v. Massachusetts, 197 U.S. 11, 27, 30, 36–37 (1905) (deferring to legislative and administrative assessment of need for uniform smallpox vaccination). 41. 476 U.S. 693, 709 (1986) (Burger, C.J., plurality opinion, joined by Powell and Rehnquist, JJ.). Roy is a tough case to read, and arguably four of the seven Justices clearly confronting this issue would have reached a result different from that of the plurality, but for various reasons did not cobble their votes together to a contrary holding. See id. at 715–716 (Blackmun, J., concurring in part), 726–733 (O’Connor, J., concurring in part and dissenting in part, joined by Brennan and Marshall, JJ.). 42. 475 U.S. 503, 508–510 (1986). 43. 455 U.S. 252, 258–259 (1982). 44. 475 U.S. at 511 (Stevens, J., concurring). 45. 455 U.S. at 262 (Stevens, J., concurring in the judgment). 46. See 475 U.S. at 512–513; 455 U.S. at 263 n.2. 47. See Nussbaum. For further discussion of Nussbaum’s theory, see Greene 2009 at 986– 990, 992– 993, 994– 995. 48. Nussbaum at 49. 49. Id. at 50. 50. Id. 51. See id. at 139. 52. Id. at 63. 53. Id. 54. Id. at 117. 55. Barry at 42. 56. Id. 57. Id. at 43. 58. Id.

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59. Id. at 48. 60. On distinguishing between preferences and more systemically developed values, see Dworkin 1993 at 201–202, discussing experiential versus critical interests. See also Goldman v. Weinberger, 475 U.S. 503, 514 (1986) (Brennan, J., dissenting) (“If Dr. Goldman wanted to wear a hat to keep his head warm or to cover a bald spot I would join the majority. Mere personal preferences in dress are not constitutionally protected”). 61. See 494 U.S. at 890. 62. See id. at 905 (O’Connor, J., concurring in the judgment). 63. Id. at 911– 912, 916, 914 n.7 (Blackmun, J., dissenting). 64. See Gonzales v. O Centro Espirita, 546 U.S. 418, 425 (2006). 65. Id. 66. See City of Boerne v. Flores, 521 U.S. 507 (1997). 67. See 107 Stat. 1488, as amended, 42 U.S.C. §§2000bb et seq. 68. See 546 U.S. at 426–430. 69. See id. at 430–432. 70. See Shakespeare at 959 (Hamlet, Act III, scene iv, line 208). 71. See 546 U.S. at 433–435. 72. See Employment Div. v. Smith, 494 U.S. 872, 912–13 & n.5 (1990) (Blackmun, J., dissenting); Goldman v. Weinberger, 475 U.S. 503, 517–518 (1986) (Brennan, J., dissenting), 532 (O’Connor, J., dissenting); United States v. Lee, 455 U.S. 252, 262 (1982) (Stevens, J., concurring in the judgment); Braunfeld v. Brown, 366 U.S. 599, 614– 615 (1961) (Brennan, J., concurring and dissenting). 73. Greenawalt 2008 at 316. Primarily to screen out insincere claims, in the setting of religious drug use, Greenawalt also would limit exemptions to those with religious institutional connections, and who use the drug at group meetings. See Greenawalt 2006 at 71–72. 74. See Greenawalt 2008 at 316–317. 75. See Greenawalt 2006 at 53–54. 76. See also Choper 1995 at 92– 93 (Court should suggest or require alternative burden in exemptions cases, to minimize incentive for fraudulent claims and reduce impingement on the government program). 77. See 494 U.S. at 886– 887 & n.4, 899, 906– 907 (O’Connor, J., concurring in the judgment), 919 (Blackmun, J., dissenting). 78. See Nussbaum at 90– 91. 79. Id. at 93. 80. Eisgruber & Sager 2007 at 85. 81. See 494 U.S. at 885– 890. See also Barry at 187 (supporting Scalia’s view in Smith “that courts are not equipped to discern the occasions for exemptions to general laws”). 82. 546 U.S. at 436. 278

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83. See Thomas v. Review Bd., 450 U.S. 707, 716 (1981) (“it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation”). 84. See Boy Scouts of America v. Dale, 530 U.S. 640, 650– 653 (2000). 85. See Goldman v. Weinberger, 475 U.S. 503, 519–522 (1986) (Brennan, J., dissenting). 86. United States v. Lee, 455 U.S. 252, 263 n.2 (1982). See Goldman v. Weinberger, 475 U.S. 503, 512–513 (1986) (Stevens, J., concurring). See also Employment Div. v. Smith, 494 U.S. 872, 889 n.5, 890 (1990). 87. See Jones v. Wolf, 443 U.S. 595, 602 (1979). 88. See City of Boerne v. Flores, 521 U.S. 507, 536–537 (1997) (Stevens, J., concurring); Board of Education of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 711–712 (1994) (Stevens, J., concurring). 89. 494 U.S. at 918. 90. See McConnell 1990a at 1132, 1136. 91. Goldman, 475 U.S. at 521. 92. For such a rare case, see Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 93. Barry at 321. 94. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). 95. See Sager 2004 at 84–128; Sager 1978. 96. Eisgruber & Sager 2007 at 255. 97. Id. at 256. 98. See 42 U.S.C. §1996a (2000) (accommodating the sacramental use of peyote); Act of September 27, 1988, Pub. L. No. 100–446, 102 Stat. 1774, 1809 (defunding the road project at issue in Lyng). See also Or. Rev. Stat. §475.992(5) (accommodating religious use of peyote). 99. Eisgruber & Sager 2007 at 13, 89. 100. Id. at 90. 101. See id. at 90– 91. 102. See id. at 91. 103. See id. at 91– 92. 104. See id. at 92– 93. 105. Id. at 91. 106. Id. at 89. 107. Id. at 92. 108. See id. 109. See id. at 92– 93. 110. Id. 111. Id. at 102. See also id. at 300 n.37. 279

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121. 122.

123.

124.

125.

126. 127. 128. 129. 130. 131.

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Id. at 102. Id. at 105–106. Id. at 106. 475 U.S. 503 (1986). See id. at 505–510. Congress responded by accommodating the wearing of religious apparel in the military. See 10 U.S.C. §774. Eisgruber & Sager 2007 at 242. For a telling critique of equal regard theory along the lines suggested in the text, see McConnell 2000 at 32–38. See Greene 1996a at 302–303; McConnell 1985 at 14–24. Cf. The Federalist 10 (Madison) (“A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source”). 403 U.S. 602, 612– 613 (1971). See McCreary County v. ACLU, 545 U.S. 844 (2005); Edwards v. Aguillard, 482 U.S. 578 (1987); Stone v. Graham, 449 U.S. 39 (1980) (per curiam); Epperson v. Arkansas, 393 U.S. 97 (1968). See also Wallace v. Jaffree, 472 U.S. 38 (1985) (invalidating law authorizing period of silence for meditation or voluntary prayer in public schools; using legislative history to conclude purpose was religious). See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). See my discussion of the Kiryas Joel case, at text accompanying infra nn.148–175. See also Zorach v. Clauson, 343 U.S. 306 (1952), discussed at text accompanying infra n.135. The Court also has upheld government provision of space or funds to religious as well as secular speakers (see cases discussed in Greene 2006a at 234–236) and state placement of religious symbols that a reasonable observer would view as part of a broader setting and thus not an endorsement of religion (see cases discussed in id. at 236–237). The former set of cases almost all involved a two-step inquiry: first, invalidating under the Free Speech Clause exclusion of religious speakers from a space or funding forum; second, concluding that there was no Establishment Clause bar to including religious speakers in such fora. See cases discussed in id. at 229–234. 483 U.S. 327 (1987). Civil Rights Act of 1964, Pub. L. No. 88–352, Title VII, §702, 78 Stat. 255 (codified as amended at 42 U.S.C. §2000e-1 (1988)). See 483 U.S. at 336; id. at 343–346 (Brennan, J., concurring in the judgment). 544 U.S. 709 (2005). See id. at 712; 114 Stat. 804, 42 U.S.C. §§2000cc-1(a)(1)–(2). 280

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132. 133. 134. 135. 136. 137. 138. 139. 140.

141. 142.

143.

144. 145.

146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159.

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544 U.S. at 720. 489 U.S. 1 (1989). See id. at 15, 18 n.8. See Zorach v. Clauson, 343 U.S. 306 (1952). 521 U.S. 507 (1997). 456 U.S. 228, 231–232 (1982). See id. at 252. 472 U.S. 703 (1985). See Gonzales v. O Centro Espirita, 546 U.S. 418, 433 (2006); Employment Div. v. Smith, 494 U.S. 872, 890 (1990); Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 454 (1988); Braunfeld v. Brown, 366 U.S. 599, 608 (1961) (plurality opinion). See Ryan at 1445–1446. See Goldman v. Weinberger, 475 U.S. 503 (1986); 10 U.S.C. §774. Although the law was drafted in response to a case brought by a Jewish member of the armed forces, the exemption for religious garb covers all religions. See Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988); Act of September 27, 1988, Pub. L. No. 100–446, 102 Stat. 1774, 1809 (defunding the road project at issue in Lyng). See Employment Div. v. Smith, 494 U.S. 872 (1990); Or. Rev. Stat. §475.840(4). Peyote Way Church of God v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991). See 42 U.S.C. §1996a (accommodating sacramental peyote use by American Indians); 21 CFR §1307.31 (accommodating sacramental peyote use by members of the Native American Church); Tex. Health & Safety Code Ann. §481.111 (same). Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert. denied, 495 U.S. 906 (1990). See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). For analysis of this and similar problems that is mostly supportive of my position, see Berg; S. Levinson 1997; Minow; Robinson at 335 n.158, 347–348; Rosen 2002. See Rubin at 40. See id. at 224. See Mintz at 206–207. See Board of Educ. v. Grumet, 512 U.S. 687, 691 (1994). See Mintz at 214. See id. at 30–31; Rubin at 93– 94, 186. See Kranzler at 202. See Rubin at 170–171. See id. at 114–115. See id. at 137–138. See Aguilar v. Felton, 473 U.S. 402 (1985); Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985). Aguilar was overruled and Grand Rapids was overruled in part in Agostini v. Felton, 521 U.S. 203 (1997). 281

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160. 161. 162. 163. 164. 165. 166. 167.

168.

169. 170. 171. 172. 173. 174. 175.

176. 177. 178.

179. 180.

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512 U.S. at 713 (O’Connor, J., concurring). Id. at 692 (quoting Board of Educ. v. Wieder, 527 N.E.2d 767, 770 (N.Y. 1988)). See 512 U.S. at 692– 693; 527 N.E.2d at 775. 512 U.S. at 693. See 1989 N.Y. Laws ch. 748, at 1527 (McKinney). 512 U.S. at 693– 694. Id. at 693. 512 U.S. 687 (1994). The majority also expressed concern that New York had never set up a special school district to accommodate a religious community and might not do so in the future if asked by another religious community, and that courts would have no way to police such a future refusal. See id. at 703. See also id. at 716 (O’Connor, J., concurring in the judgment). For my rejection of this argument, see Greene 1996b at 59– 63. See also 512 U.S. at 727 (Kennedy, J., concurring in the judgment). In addition, a plurality of Justices analogized the case to Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), which had invalidated a law vesting in religious institutions veto power over liquor licenses. See 512 U.S. at 696–702. For my rejection of this analogy, see Greene 1996b at 18–20. 512 U.S. at 728–729. In a brief concurrence, Justice Stevens, joined by Justices Blackmun and Ginsburg, also condemned the New York law as fostering segregation. See id. at 711. For a similar position, see Eisgruber 1996; Failer. 512 U.S. at 730. Id. Id. at 728. For further discussion about the significance of exit in these scenarios, see Greene 1996b at 49–51. For a critique of my discussion, see Ford at 1401–1402, 1411–1415. For examples of invidious separation, see Gomillion v. Lightfoot, 364 U.S. 339 (1960); Brown v. Board of Education, 347 U.S. 483 (1954). Ford at 1386. See Boy Scouts v. Dale, 530 U.S. 640 (2000); New York State Club Assn., Inc. v. City of New York, 487 U.S. 1 (1988); Board of Directors v. Rotary Club, 481 U.S. 537 (1987); Roberts v. United States Jaycees, 468 U.S. 609 (1984). See text accompanying supra nn.4– 6. See U.S. Const., Amend. 1 (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”). See Sager 2004 at 171 (“A theocratic community has a great conceptual advantage: A vision is seen, a heavenly voice heard, or a sacred tablet unearthed; by one means or another the divine force announces its presence and dictates ground rules for the holy”). See Koppelman at 113–119; S. Smith 1989b at 104–105; Sullivan at 197 n.9. 393 U.S. 97, 107–108 (1968). 282

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181. 182. 183. 184. 185. 186. 187. 188.

189.

190. 191.

192. 193. 194. 195. 196. 197. 198. 199.

200.

201. 202.

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449 U.S. 39, 39 n.1, 41 (1980) (per curiam). Id. at 41. 472 U.S. 38, 56 (1985). 482 U.S. 578, 585–594 (1987). 545 U.S. 844 (2005). Id. at 861. Id. at 863. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring in part and concurring in the judgment); Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). See Fletcher at 95 (“The religious life, as we know it in the West, is based on the individual’s having loyalties to a transcendental authority, and these loyalties preclude giving wholehearted allegiance to a secular authority”); Gedicks at 31 (“Religious belief in the Western tradition is centered on a transcendent force or belief—that is, a force or belief that is beyond the material, phenomenal world”); Greenawalt 2008 at 324 (“within the individual lives of many citizens, religion has a special place. Many people perceive their religion as involving relations with a transcendent God. . . . [A] high percentage of religious claims [in our culture] will concern perceived transcendent obligations”). Cf. Alexander 1993 at 769. See James at 379–380 (“personal religious experience has its root and centre in mystical states of consciousness . . . [I]ts quality must be directly experienced; it cannot be imparted or transferred to others”). See Stolzenberg at 1048–1049. Epperson v. Arkansas, 393 U.S. 97 (1968). But see Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988). Roe v. Wade, 410 U.S. 113 (1973). Planned Parenthood v. Casey, 505 U.S. 833 (1992). See, e.g., Stormans Inc. v. Selecky, 526 F.3d 406 (9th Cir. 2008). See Robinson at 315–316 (discussion of Mormon polygamy). For an argument that we should overrule Pierce v. Society of Sisters, 268 U.S. 510 (1925) (parents have a constitutional right to educate their children outside of the public school system), see Greene 2000a at 489–492, and Greene 1999 at 406–408. See Rosen 2002 at 826– 828, and Rosen 1998 at 1098–1106 (raising the question whether we should require exposure to other options to render choice to remain meaningful and real). Nussbaum 2011 at 36. See Green 1995 at 264–267. 283

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203. Id. at 266. 204. See Shachar. 205. See also Rosen 2002 at 826– 828 (we should require groups to give members the power to critique the group, and to urge reform). 3. Against Interpretive Obligation to the Past 1. See Fordham Law Review; Lessig. But see Klarman 1997a. 2. Most originalists now purport to rely on original meaning. See Paulsen 2009 at 878; Scalia 1997 at 38. 3. See Alexander & Prakash; Fish 2005; Michaels at 32; Whittington 1999b at 59– 61, 96. 4. See Berman 2009 at 42; Coan at 1071–1088; Farber 1989 at 1101; Lyons 1987 at 79– 82; Raz 1998 at 177–191; T. Smith at 30. The matter is to some extent conceptual, turning on how we use the term “interpretation” generally, or specifically with regard to legal texts. But see Alexander 1998b at 8 (rejecting Raz’s arguments on this point). 5. See Whittington 1999a at 209–211 (deeming nonoriginalist readings constitutional construction rather than interpretation). 6. I have argued that it is both inappropriate and impossible to adhere to a plain or ordinary meaning theory of statutory interpretation; rather, interpreters should look at evidence of the purpose and context of statutory terms, evidence that should include (appropriately measured) legislative history. See Greene 2006b; Greene 1997b. 7. For arguments supporting the democratic legitimacy case for originalism, see Easterbrook 1998 at 1121; Kay 1988 at 262–263; McConnell 1998 at 1131–1132; McConnell 1997a at 1278 n.45 (theory of judicial review based “on the claim that in enforcing the Constitution [the judges] are carrying out the will of the people. . . . To enforce something else separates the text from the source of its authority”); McGinnis & Rappaport 2007a at 389; S. Smith 1989a at 115; Whittington 1999b at 59. 8. See Barnett 2009 at 660 (“original public meaning is an objective fact that can be established by reference to historical materials. There is a ‘there’ there to be discovered by interpreters”); Whittington 2004 at 599. 9. See Barnett 2004 at 96, 101, 109; Paulsen 2009 at 859, 916; Whittington 1999b at 47– 61. 10. See Alexander 2010 at 141 (“the authors of those symbols were the ones possessed of authority to make and change the law, making the meanings they intended for their symbols to convey ‘the law’ ”); Barnett 2009 at 618 (constitutions are “put in writing to ‘lock in’ or fix a meaning”); McGinnis & Rappaport 2009a at 781 (the Constitution’s “[original] meaning [was] passed through the supermajoritarian process”), 794 (referring to “historical understandings 284

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13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28.

29. 30. 31. 32. 33. 34.

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incorporated into the text”); McGinnis & Rappaport 2009b at 805; Paulsen 2009 at 861 (Article VI specifies “the words of the written text, as enacted at a point in historical time, as the authoritative and exclusive source of constitutional meaning”); Scalia 1989 at 854 (Constitution is law with “fixed meaning”). See Ackerman 1998 at 5, 409; Ackerman 1991 at 41; Ackerman 1989 at 477, 489; Ackerman 1984 at 1022. See Berman 2009 at 64– 66 (discussing Goldsworthy at 683, who makes just the mistake—in the Australian context—that I am advising we avoid). See also Paulsen 2009 at 893– 894 (making a similar mistake). Rubenfeld 2001 at 95. Rubenfeld 2005 at 91. See Rubenfeld 2001 at 92. Id. at 156. Rubenfeld 2005 at 139. Id. at 140. Rubenfeld 2001 at 172. Id. at 173. Id. at 177. For related views, see Ackerman 2007 at 1754 (“The aim of interpretation is to understand the constitutional commitments that have actually been made by the American people in history”); Balkin 2007b at 465 (for the Constitution to be our law it must “connect past generations to present ones through a process of narrative identification,” and it “must allow us to identify our present principles and commitments with the principles of those who lived before us”); Balkin 2004 at 497 (“idea of a transtemporal collective subject”); Luban 1989 at 2152 (“Legal argument is a struggle for the privilege of recounting the past”). See D. Strauss 2003. Id. at 1719. See id. at 1719, 1724, 1731–1739. Id. at 1735. See id. at 1737. See id. at 1719. See also Balkin 2009b at 608 (past provides “a common stock of intellectual resources, values, and commitments that people with very different views can draw upon to reason with each other in a political community so that they can decide what to do and how to go forward”). See Postema 2004 at 291. Id. at 294–295. Id. at 295. Id. Id. at 300. Id. at 307. 285

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35. Id. at 308. 36. Id. at 312. 37. See Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (“[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable”). 38. Sunstein 2005 at 28. 39. See Casey, 505 U.S. at 864– 869 (expressing concern that overruling Roe v. Wade, 410 U.S. 113 (1973), might threaten the Court’s legitimacy, making its decisions seem unprincipled, a capitulation to public pressure). 40. See Citizens United v. FEC, 130 S. Ct. 876, 940 (2010) (Stevens, J., dissenting); Fallon 2001 at 588; Fisch at 112–117; Luban 1991 at 1044; M. Moore 1985 at 317, 371; Sunstein 2005 at 81, 108. 41. See Casey, 505 U.S. at 854 (“no judicial system could do society’s work if it eyed each issue afresh in every case that raised it”); Fried at 38; Hershovitz 2006b at 103, 106, 108–109, 113; Macey at 94, 102–103; Stevens at 2. 42. See Dworkin 1986 at 178–184, 227. 43. Id. at 225. 44. Id. at 132, 165, 180, 249, 405. 45. See id. at 87 (noting it would serve political integrity and justice to read the U.S. Constitution as promoting economic equality, but a judge would violate constitutional integrity with such an interpretation). 46. See id. at 132, 165, 225, 404–405. 47. Dworkin 1983 at 263. 48. See Dworkin 1977–78 at 111, 113. 49. See id. at 86– 88. 50. Dworkin 1997a at 1249. 51. Id. at 1254. 52. See Dworkin 1977–78 at 101–105. 53. See id. at 102–103. 54. Id. at 104–105. 55. See Dworkin 2004 at 24–25; Dworkin 1986 at 93– 96, 192, 404–406. For a more recent endorsement of the role of fit in legal interpretation, see Dworkin 2006 at 14, 52, 268 n.19. 56. See Fleming 2006. 57. Id. at 6. 58. Id. at 63. 59. Id. at 70. 60. Id. at 92. 61. Id. at 93. 62. See Sager 2004. 63. Id. at 2. 286

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64. Id. at 73. 65. Id. at 201. 66. Id. at 6, 9, 21, and 85. See also Neuborne 2008 at 54 (relying on conversation with Sager, stating the importance of equality over time for a theory of precedent). 67. See Sunstein 2005 at 28, 88, 108–109, 205–206, 220–221, 225, 232. See also Sunstein 1996 at 33, 40. 68. Sunstein 2005 at 108. 69. See Sunstein 1996 at 200 n.18, 76. 70. Burke at 99. 71. See id. at 37–39, 57, 66, 99, 108, 162, 182, 196–198, 201. 72. Senate Judiciary Committee Hearing on the Nomination of Elena Kagan to the U.S. Supreme Court (June 30, 2010). For some nods in a Burkean direction, see Sunstein 2006 (primarily backing the negative rather than affirmative component of Burke). 73. For a contemporary argument against constitutionalism, based in the deadhand problem, see Klarman 1998; Klarman 1997a; Klarman 1997b. 74. Thomas Jefferson, letter to James Madison (9/6/1789), in Randolph at 27 (vol. 3). 75. For similar Jefferson arguments, see his letters to John W. Eppes (6/24/1813), Samuel Kerchival (7/12/1816), and Major John Cartwright (6/5/1824), in Randolph at 186, 285, 393 (vol. 4). 76. Herbert Sloan shows that Jefferson’s arguments against one generation’s binding future generations stemmed at least in part from Jefferson’s indebtedness, which Jefferson described as a kind of slavery, and as the practical negation of liberty. See Sloan at 281, 288, 290. Sloan also claims that Jefferson eventually dropped his insistence on continual constitutional revision and that Jefferson’s constitutional theory required adherence to framers’ intent (although to the extent the Constitution would be frequently revised, or one generation would not be able to bind a future one, the relevant framers’ intent would always be intragenerational). See id. at 302–303. Regardless of any modification one would have to make in describing Jefferson’s views, I am borrowing here to develop an argument against the bindingness of old understandings of constitutional meaning. This argument is, I believe, true to the Jefferson of the letters quoted in the text. 77. But see Parfit (Part Three: “Personal Identity”). 78. Simon at 1500. 79. See Coan. 80. See Whittington 1999a at 1– 8; Whittington 1999b at 5, 7, 36–37, 43, 77– 89. 81. See Balkin 2009b generally; Griffin at 1210. 82. See Brest 1980 at 225; Monaghan 2010 at 788–796; Posner at 1370–1371. 83. See Balkin 2009a at 19–23; Balkin 2009b at 563, 566, 569–575, 584–585, 592– 601. 287

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84. 491 U.S. 110 (1989) (Scalia, J., plurality opinion). See id. at 127 n.6 ( joined only by Rehnquist, C.J.) and 137–141 (Brennan, J., dissenting). 85. See Coan at 1059–1063; Post & Siegel 2009 at 27; Siegel 2001 generally. 86. For a helpful treatment of this issue, see Kesavan & Paulsen generally (records of the 1787 constitutional convention, even though unavailable at the time of ratification, nonetheless evidence of original meaning). See also Balkin 2007b at 449. 87. See id. at 427, 433, 442–454; Barnett 2009 generally; Berman 2007 at 384; Calabresi & Fine at 668– 672; Dworkin 1997b at 1806, 1808; McGinnis & Rappaport 2007b at 371; Sager 2004 at chs. 2–3; Scalia 1997 at 144–145; Whittington 2004 at 610– 611. But see sources cited in Balkin 2007a at 295 n.9; Primus at 208 (only recent original meaning should bind; but it binds according to specific “expectations”). 88. For the contrary view, see Kay 2009 at 714–719. 89. For commentary on the difficulty of recovering original intent, at any level of specificity, see Brest 1980 at 213–217; Farber 1989 at 1087–1096; Farber & Sherry at 13–16. 90. See Calabresi & Fine at 671. 91. See sources cited in Greene 2006b at 1924 n.58. 92. See Greenberg & Litman at 599– 600. 93. Id. at 613– 614. 94. Id. at 614– 615. 95. Dworkin 1997a at 1252. 96. Id. at 1253. See Barber & Fleming at 68, 83, 165–166; Barnett 2007 at 412. 97. See Dworkin 1997a at 1254. 98. See Dworkin 1997b at 1806. 99. See Dworkin 1997a at 1252–1253. See also T. Smith at 52 (originalism mistakenly “locates the law’s meaning in people’s beliefs about the things they spoke of, rather than in the nature of those things. Objectivity in law is anchored in the latter”). We can use this Dworkin-Smith argument to show the confusion originalists display when they seemingly equate text (which is one thing) with text’s meaning (which is another). See text accompanying supra n.10. 100. Dworkin 2006 at 29–30. 101. See Dworkin 1997b at 1806. 102. McConnell 1998 at 1132. 103. McConnell 1997a at 1280. 104. S. Smith 1989a at 113. 105. M. Perry at 100. 106. McGinnis & Rappaport 2009a at 761. 107. Paulsen 2009 at 908. 108. Scalia 1997 at 145. 288

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109. 110. 111. 112. 113. 114. 115.

116. 117. 118.

119. 120. 121.

122. 123. 124. 125. 126. 127. 128. 129. 130.

131. 132. 133. 134.

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Whittington 1999b at 35. Balkin 2007b at 497. Id. at 491. Id. at 488. See Paulsen 2009 at 913– 916; Whittington 1999b at 39–40. See Whittington 2004 at 608– 609. See Tushnet 1983 at 800 (“In imaginatively entering the world of the past, we not only reconstruct it, but . . . we also creatively construct it. For such creativity is the only way to bridge the gap between that world and ours”). See Calabresi & Fine at 692– 698. See also Whittington 1999b at 37, 184. See Balkin 2009b at 552. Cf. D. Levinson at 676, 711 (providing a rationalist account of constitutional commitment-keeping via repeat play, reciprocity, and reputation). Michael Bratman suggests we might defer to the commitment to ward off “future regret.” See Bratman at 67. But whether we’ll regret at time N + 1 a decision at time N to depart from a rule we set for ourselves at time N − 1 is hard to know in advance and just one factor in calculating how well we’re doing, subject to balancing against other factors at time N. See Postema 2004 at 311. See also text accompanying infra nn.190–191. See S. Holmes at 196 (discussing Hayek’s view; “A constitution is Peter sober while the electorate is Peter drunk. . . . By binding themselves to rigid rules, [voters] can avoid tripping over their own feet”). See Elster 1979. See also S. Shapiro 2005 at 59. For a discussion of internal vs. external monitors regarding this type of commitment, see Waldron 1998 at 276–280. See Samaha at 656. Rubenfeld 2005 at 92, 76. See id. at 75–76, 91– 92. Elster 2000 at 92. For use of this term, see S. Holmes at 235–238. Rubenfeld 2005 at 140. Luban 1991 at 1057. See M. Moore 1996 at 266 (we’re not hostage to traditions; we must decide what the past has given us and whether it should be continued; although our judgments are bounded, we aren’t bound to act in a conformist way). See Raz 1998 at 166–167. Rubenfeld 2001 at 200. Id. at 117, 102, 125. See id. at 18–26, 56–57. See also McConnell 1998 at 1134 (agreeing with Rubenfeld versus Jefferson; if Jefferson were right, all constitutionalism would be illegitimate). 289

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135. Thomas Jefferson, letter to James Madison (9/6/1789), in Randolph at 27 (vol. 3). 136. James Madison, letter to Thomas Jefferson (2/4/1790), in Madison at 503 (vol. 1). 137. See Thomas Jefferson, letter to James Madison (9/6/1789) (“Every constitution, . . . and every law, naturally expires at the end of 19 years”), in Randolph at 20 (vol. 3). 138. D. Strauss 2003 at 1726. 139. See id. at 1739. 140. Postema 2004 at 295, 307. 141. Benditt at 92 (noting, though, that perhaps there is reason to follow precedent, even if yielding a seemingly arbitrary resolution, in areas of sharp social disagreement). 142. See D. Strauss 2003 at 1722–1724. 143. See id. at 1736. 144. Id. at 1735. 145. Id. at 1737. 146. Id. 147. Postema 2004 at 296. 148. Id. at 316 n.22. See id. at 308 (“Fidelity demands a critical respect for the past”). 149. Alexander & Schauer 1997 at 1373. 150. See Citizens United v. FEC, 130 S. Ct. 876, 913 (2010); Payne v. Tennessee, 501 U.S. 808, 828 (1991). 151. Reliance also makes sense for arguably erroneous precedent that has produced an omelet too hard to unscramble (such as our system of paper money; see Amar at 85– 87; Fallon 2008 at 1115–1116). 152. For a discussion of theorists who believe we overstate the reliance costs from legal change, see Fisch at 107–110. See also Barnett 2005 at 266; Lyons 1985 at 511. 153. See Citizens United, 130 S. Ct. at 913; Planned Parenthood v. Casey, 505 U.S. 833, 956 (1992) (Rehnquist, C.J., concurring in part and dissenting in part). 154. Alexander & Schauer 1997 at 1373. 155. See Casey, 505 U.S. at 854– 855. 156. See Gerhardt at 147 (appendix showing many decisions in which the Court overruled its own constitutional precedent); Paulsen 2008 (the Court’s “doctrine” of stare decisis is manipulable and unworkable). 157. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 158. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). See also United States v. Mead Corp., 533 U.S. 218 (2001). 159. Kronman at 1051. 160. Id. at 1051–1052. 161. See id. at 1053. 162. Id. at 1066. 290

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163. See id. at 1032–1034 (setting out a defense of precedent in law as the principal point of the piece). 164. See id. at 1048–1051. 165. Id. at 1036. 166. Id. at 1066. 167. Id. at 1067. 168. See id. 169. See generally Bloom. 170. 487 U.S. 654, 687– 693 (1988). 171. 410 U.S. 113, 153 (1973). 172. 395 U.S. 444, 447–448 (1969) (per curiam). 173. 341 U.S. 494 (1951). 174. Fleming 2006 at 93. 175. Cf. Greene 1991 (arguing for restricted retroactivity in administrative adjudication when agency is making policy rather than carrying out clear congressional intent). I could accept arguendo that the common law just is about diachronic integrity, in a Dworkinian fashion; see Waldron 2009 at 337–338. My argument throughout this section is that this need not be (and is not) the case for constitutional law. 176. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 177. See Greene 1991 at 294–300; Schaefer. But see Fisch at 98, 119 (stating the standard position, which assumes that adjudication will not be purely prospective, in part because that could make it too easy for courts to overrule precedent). 178. Lyons 1985 at 505. 179. Id. at 508. 180. Id. 181. See Vermeule at 1496–1501 (the many minds to whom we are supposedly deferring on a strong Burkean theory might not have been thinking independently of each other, perhaps because of the power of ruling regimes, and perhaps because some found it convenient to save time by deferring to prior judges, thus creating a paradox). See also M. Shapiro at 133 (the “redundancy” advantages of stare decisis may generate too little information for learning); Sunstein 2008 at 1553–1557 (concern with systematic biases, the lack of independent judgments, the paradox to which Vermeule refers, and the problem of the cascade effect; also argues that by requiring unequal treatment to be justified in principle, the Equal Protection Clause should be understood as rejecting “many minds” traditionalism). 182. See West Virginia v. Barnette, 319 U.S. 624, 640 (1943) (“changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment”). 291

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189.

190.

191. 192. 193. 194. 195. 196. 197. 198. 199.

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201. 202. 203. 204. 205. 206. 207.

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See Hershovitz 2006b at 108; Sunstein 2008 at 1552; Vermeule at 1493–1494. The Federalist 14. See Lawson 2007; Lawson 1994; Paulsen 1995. See Paulsen 1994a. See Lawson 2007 at 4, 18–19. See id. at 4 (the Court should rely only on “direct, unmediated examination of the Constitution”); Paulsen 2003 at 2740 (Constitution’s words/phrases have “discernible, objective meaning”). See District of Columbia v. Heller, 554 U.S. 570 (2008) (complex historical debate re: Second Amendment); Alden v. Maine, 527 U.S. 706 (1999) (complex historical debate re: immunity of states from suit in their own courts under federal law); Flaherty; Hamburger (challenging history in McConnell 1990b). See Neuborne 2008 at 55 (making the point re: precedent); Whittington 1999b at 156 (“Present and future generations can only expect their own constitutional will to be effectuated if they are willing to give effect to prior such expressions”). See Berman 2009 at 74–75. See also text accompanying supra nn.119–120. See Schauer 1985. See Hart 1994 at 124–130, 154. See Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring in the judgment). See Dworkin 1986 at 72, 88; id. at 65, 91 (preinterpretive suppositions). Dworkin 1977–78 at 102. See id. at 118–123; Dworkin 1986 at 230 (mistake theory). See U.S. Const., Art. II, sec. 2, cl. 2; Art. I, sec. 2, cl. 5; Art. I., sec. 3, cl. 6; Art. II, sec. 4; Art. III, sec. 1; Art. I, sec. 8, cl. 9; Art. III, sec. 1. See M. Moore 1985 at 387 (“There is a general ‘safety-valve’ question of justice that must be asked in all interpretation,” and “if one ever asks this general safety-valve question, one always asks it”). See also Sebok at 439–450 (“The Theory of Mistakes Devours the Theory of Fit”). See Klarman 1997a at 394–412. Klarman critiques an article of mine unabashedly committed to the fit dimension. See id. at 399–401 (critiquing, inter alia, Greene 1994a). See also Greene 2005b (another piece substantially of the “fit” variety). Schauer 1987b at 582. Id. at 584. Id. at 585–587. Id. at 581. Id. See Schauer 1987a at 858– 861. Id. at 860. 292

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208. See id. at 860– 861. 209. Lyons 1984 at 188–189. 210. See Greenawalt 1996 at 16 (“basic elements of legal reasoning overlap with basic elements of moral reasoning”). For a somewhat more dramatic version of this claim, focusing on judicial moral responsibility in interpretation, see Kennedy at 387; Powell at 9–11, 107. 211. See Fish 1994 at 188; Fish 1983 at 271. 212. For the difference between the two, see M. Moore 1985 at 371 (“Being uncertain that one has the right moral category . . . is quite compatible with certainty that there is some such moral category”). 213. See Burke at 37, 68, 106–108, 290; Postema 1987 at 12 (discussing Hobbes). 214. See Greene 1991 at 274–282. 4. Against Interpretive Obligation to the Supreme Court 1. See text accompanying Chapter 1 nn.71–79. 2. See U.S. Const., Art. VI, cl. 3. See also U.S. Const., Art. II, sec. 1, cl. 8 (presidential oath, “to preserve, protect and defend the constitution of the United States”). 3. 5 U.S. 137, 180 (1803). 4. See Federalist Society at 47 (Jackson Veto Message); Lincoln 1989a at 768; Paulsen 1994a at 258; Tushnet 1999 at 6. 5. See Murphy at 413. 6. U.S. Const., Art. III, sec. 1. 7. Id., sec. 2, cl. 1. 8. 358 U.S. 1 (1958). See also Lincoln 1989a at 597–598 (Court decisions become “the law of the land, binding on you, on me, and on every other good citizen”) (Stephen A. Douglas); Recent Attacks upon the Supreme Court of the United States: A Statement by Members of the Bar (signed by 100 prominent lawyers nationwide), 1 Race Relations Reporter 1024, 1024 (10/23/1956) (“The privilege of criticizing a decision of the Supreme Court carries with it a corresponding obligation—a duty to recognize the decision as the supreme law of the land as long as it remains in force”). 9. 347 U.S. 483 (1954) and 349 U.S. 294 (1955). 10. 358 U.S. at 17. 11. U.S. Const., Art. VI, cl. 2. 12. 358 U.S. at 18. 13. Id. (quoting the end of the Supremacy Clause). 14. See The Federalist 78 (Hamilton). 15. U.S. Const., Art. III., sec. 1. 16. See Chemerinsky at 1013, 1016; Gerber at 1070; Schauer 2004a at 1057–1058, 1060. 293

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17. See text accompanying Chapter 3 n.3. 18. See Alexander 2003 at 373, 376; Alexander & Schauer 1997 at 1371–1377; Alexander & Solum at 1613–1615; Farber 2003 at 361; Neuborne 1987 at 994– 995, 1000; Schauer 2007 at 20. 19. R. Nagel 1993 at 17. 20. See Caminker at 863– 865 (discussing similar issue in context of lower federal courts’ following Court precedent); Sherwin at 67. 21. The Federalist Society at 56 (Daniel Webster speech). 22. Henry Clay, Senate Speech, July 12, 1832, in Register of Debates in Congress at 1265 (vol. 8). See also Colton at 341 (letter from Nicholas Biddle to Henry Clay, August 1, 1832) (Jackson’s veto message “is really a manifesto of anarchy”). 23. See Alexander & Schauer 2000; Alexander & Schauer 1997; Schauer 2004a. 24. See Meese 1987a. But see Meese 1987b. 25. See, e.g., Plaut v. Spendthrift Farm, 514 U.S. 211 (1995); Baude at 1809; The Federalist 81 (Hamilton); Hartnett. 26. See Adler at 784–785; S. Calabresi; Easterbrook 1989– 90 at 926; Lawson & Moore at 1270. But see D. Strauss 1993 at 123–125 (argument that President must enforce specific court judgments undercuts premise for argument that he need not follow judicial precedent). As discussed in Chapter 1 and here, I disagree with Strauss: judgments are distinguishable, on at least three grounds— greater need for stability; greater participatory values; special finality rules for Article III courts. 27. Farber 2003 at 360. 28. See Farber 1982 at 390, 408, 411. 29. See Harlow v. Fitzgerald, 457 U.S. 800 (1982). 30. See Farber 1982 at 405–406. 31. For departmentalist arguments supporting plural, dialogic constitutional interpretation among the three branches of federal government, see Barron at 89; S. Calabresi at 1421; Easterbrook 1989– 90 at 914, 924; Eisgruber 1994 at 350; Harrison at 372–373; Lawson 2003; Lawson & Moore at 1270; McConnell 1997b at 184; Murphy at 401, 407, 411, 417; Paulsen 2003; Paulsen 1994a at 220–221, 228–239, 244; Paulsen 1994b at 386. 32. The Federalist Society at 49 (Jackson Veto Message). 33. See text accompanying Chapter 3 n.198. 34. See Friedman 2009; Friedman 2003 at 2599, 2602, 2605; Post; Whittington 2002 at 816. 35. Supporting a dialogic view of constitutional interpretation: Agresto at 10, 99–102, 129; Bickel at 100–110; Devins & Fisher 2004 at 9; Dorf & Friedman; Fisher 1988 at 8, 231, 276, 279; Fleming 2000 at 217; Friedman 1993 at 580–581, 653– 657, 668– 670; Lawson 2003 at 382–383; S. Levinson 1988 at 47–50; Paulsen 294

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38. 39. 40. 41. 42. 43. 44. 45. 46. 47.

48. 49. 50. 51. 52.

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1994a at 222; Post & Siegel 2003 at 1945, 1983, 2026–2027; Rawls 1993 at 232 and n.15, 237; Seidman; Whittington 2002 at 791; N. Williams at 571. See Johnsen 2004 at 112–116; Murphy at 408; Whittington 2002 at 818, 830. Lincoln 1989a at 393. See also Bickel at 101–102; Carter at 853, 858– 859; Friedman 1993 at 647; L. Kramer 2001 at 15; McConnell 1997b at 174 n.35; Paulsen 1989 at 85– 86. Lincoln 1989b at 221. Alexander & Solum at 1634. See Devins & Fisher 1998; Fisher 2005; Hartnett at 154 n.77. See also cases discussed in the “Guidelines” section of this chapter. See Murphy at 408; R. Nagel 1998 at 857, 859, 863; Whittington 2002 at 796. See Schauer 2004b. But see Greene 2005a. See Sager 2004 at 85–128; Sager 1978. See Alexander & Schauer 1997 at 1372–1373. See id. at 1377 n.80. An analogy is to the distinction between the rule that Congress may not reopen final judgments (see Plaut v. Spendthrift Farm, 514 U.S. 211 (1995); text accompanying supra n.25) and the rule that Congress may amend the law in a way that will change the outcome of either pending or future litigation (see, e.g., Robertson v. Seattle Audubon Soc’y, 503 U.S. 429 (1992)). 347 U.S. 483 (1954). See Alexander & Schauer 1997 at 1386. The American Heritage Dictionary of the English Language (4th ed., 2000) at 494. Markovits at 1927. See G. Calabresi at 17–19. See also Sunstein 2003. The doctrine of desuetude has not usually been applied, at least in the United States and England. See Poe v. Ullman, 367 U.S. 497, 511 n.3 (1961) (Douglas, J., dissenting). See Agresto at 88– 93; Fisher 1988 at 238–241. 17 U.S. 316 (1819). See also text accompanying infra n.86 (Reagan veto). See The Federalist Society at 47–50 (Jackson Veto Message). 60 U.S. 393 (1857). See Lincoln 1989a at 741, 472, 451, 392, 393. See Lincoln 1989b at 221; Lincoln 1989a at 741, 716, 473, 450, 393. For another example, see L. Kramer 2004 at 217 (discussing Franklin Delano Roosevelt). See Easterbrook 1989– 90 at 909; Johnsen 2008 at 415; Prakash at 1664–1665. See also Federalist Society at 43–44 (Thomas Jefferson, letter to William Charles Jarvis (9/28/1820)), 41 (Thomas Jefferson, letter to Abigail Adams (9/11/1804)). See Easterbrook 1989–90. See also Johnsen 2008 at 415 (describing Andrew Johnson’s refusal to follow statute in firing his Secretary of War). For other scholars’ 295

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favoring presidential review, see Lawson & Moore at 1287, 1290–1292, 1303–1306; S. Levinson 1994 at 379; Paulsen 2008b at 1229, 1259–1260; Paulsen 1994a. See Seidman. See also Devins & Fisher 2004; Fisher 1988. Siegel 2006 at 1418. See Easterbrook 1989– 90 at 919; Paulsen 1994a at 261; P. Strauss at 108. Cf. May at 873 (best understanding of Take Care Clause historically is that it was meant to prevent the executive from resorting to various devices employed by the King to evade Parliament). P. Strauss at 116. See Raines v. Byrd, 521 U.S. 811 (1997). See ASARCO, Inc. v. Kadish, 490 U.S. 605, 617– 624 (1989). See Johnsen 2000 at 12–13, 35, 47; Miller at 57–58. See Statement of the Attorney General on Litigation Involving the Defense of Marriage Act (2/23/2011), http://www.justice.gov/opa/pr/2011/February/11-ag-222 .html; Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act (2/23/2011), http://www.justice.gov/opa/pr/2011 /February/11-ag-223.html. See also Letter from Assistant Attorney General Andrew Fois to Senate Judiciary Committee Chairman Orrin Hatch (2/22/1996), http://www.scribd.com/doc/49512515/Letter-to- Orrin-Hatch- On -Presidential-Decisions-Not-To-Defend Statutes. See Johnsen 2000 at 12, 30–32; May. See also Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1121–1126 (9th Cir. 1988), rev’d on other grounds, 893 F.2d 205 (9th Cir. 1989) (en banc). 524 U.S. 417 (1998). See Prakash at 1633–1634 (President’s disregard of—arguably—unconstitutional laws can coexist with the veto power). Barron at 67, 74. See also text accompanying infra n.100. See id. at 72. See id. at 93– 97. See Johnsen 2000 at 41, 51. See Walter Dellinger, A Slip of the Pen, New York Times, July 31, 2006, p. A17; Johnsen 2008 at 399–400. Lincoln 1989a at 393. Lincoln 1989b at 126. Lincoln 1989a at 450–451. Id. at 728. See Devins & Fisher 2004 at 58– 61. Hammer v. Dagenhart, 247 U.S. 251 (1918), struck down as exceeding the Commerce Clause a federal law preventing the interstate shipment of the products of child labor. Congress then imposed an excise tax on the net profits of persons employing child labor; the Court struck this down in Bailey v. Drexel Furniture Co., 259 U.S. 20, 39 (1922) (noting that 296

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Hammer could not be distinguished). In 1923, Congress proposed a constitutional amendment to give it power to regulate child labor, but not enough states ratified the amendment. In 1938, Congress tried again via the Commerce Clause, and finally the Court relented, upholding the statute in United States v. Darby, 312 U.S. 100, 115–117 (1941) (noting that intervening cases had eroded Hammer, and overruling it). See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936); Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Lochner v. New York 198 U.S. 45 (1905). See Fisher 1988 at 17. 462 U.S. 919 (1983). See Fisher 1988 at 225. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding fairness doctrine); Syracuse Peace Council, 2 FCC Rec’d 5043 (1987) (“under the constitutional standard established by Red Lion and its progeny, the fairness doctrine contravenes the First Amendment and its enforcement is no longer in the public interest”), aff’d, Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) (without reaching First Amendment issue). See also Fisher 1988 at 249–251. See Veto of the Fairness in Broadcasting Act of 1987, 23 Weekly Comp. Pres. Doc. 715 (June 19, 1987) (Reagan veto of act preserving fairness doctrine, on ground that it was unconstitutional). See U.S. Const., Amend. 14, sec. 5. 360 U.S. 45 (1959). “The rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any state, on account of race, color, or previous condition of servitude.” U.S. Const., Amend. 15, sec. 1. See 79 Stat. 439 (1965), 42 U.S.C. §1973b(e). 384 U.S. 641 (1966). Id. at 649. U.S. Const., Art. I, sec. 8, cl. 18. 17 U.S. 316 (1819). 384 U.S. at 651. Id. at 653. Id. at 656. See id. at 668 (Harlan, J., dissenting). See id. at 651 n.10. See also id. at 657 (distinguishing congressional denial of fundamental rights from congressional elimination of a barrier to voting). See Brest 1975 at 594–599; Burt at 114; Cole at 34–36, 59– 69; L. Kramer 2001 at 147–151; McConnell 1997b at 156, 173, 189–192. See also Oregon v. Mitchell, 400 U.S. 112, 247–248 (1970) ( joint opinion of Brennan, White, and Marshall, JJ.); text accompanying supra n.72. 297

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101. 521 U.S. 507 (1997). 102. After Morgan, the Court split on Brennan’s one-way ratchet theory, producing what is best seen as a 4–4 vote on the matter, with Justice Black’s view murky. See Oregon v. Mitchell, 400 U.S. 112 (1970). 103. 494 U.S. 872 (1990). 104. See 521 U.S. at 536–537 (Stevens, J., concurring). 105. Id. at 519. 106. Id. at 529. 107. Id. at 535. 108. Id. at 536. 109. See Devins at 647– 658; Eisgruber & Sager 1997 at 83, 92, 95. 110. It is ironic that Boerne—the case producing the most recent affirmation of the Cooper view of Court interpretive hegemony—involves the underlying constitutional question whether individuals should receive exemptions as of constitutional right for religious practice that runs afoul of generally applicable law. That is, we have a significant question of interpretive obligation stemming from a significant question of political obligation, and one of the principal arguments in favor of both is from settlement—constitutional exemptions for religious practice and a recognition of shared constitutional interpretive authority would be unsettling, leading to a kind of anarchy of primary citizen obligations and what we might call secondary official obligations. This book has sought, inter alia, to rebut the settlement argument in both settings. 111. See 494 U.S. at 889 n.5, 890. 112. See text accompanying Chapter 2 nn.64–72. 113. See Jaffree v. Board of School Commissioners, 554 F. Supp. 1104, 1114, 1119, 1126, 1128 (S.D. Ala. 1983). 114. Id. at 1128. 115. Jaffree v. Board of School Commissioners, 459 U.S. 1314, 1316 (1983). 116. Jaffree v. Board of School Commissioners, 705 F.2d 1526, 1532 (11th Cir. 1983). 117. Wallace v. Jaffree, 472 U.S. 38, 48 (1985). 118. See, e.g., Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 49–51 (2004) (Thomas, J., concurring in the judgment); Amar at 1157– 60; S. Smith 1995 at 17–34. 119. 347 U.S. 483 (1954). 120. See Stell v. Savannah- Chatham County Bd. of Educ., 220 F. Supp. 667 (S.D. Ga. 1963). 121. Stell v. Savannah- Chatham County Bd. of Educ., 318 F.2d 425, 427 (5th Cir. 1963). 122. Stell v. Savannah- Chatham County Bd. of Educ., 333 F.2d 55, 61 (5th Cir. 1964). 298

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123. See Evers v. Jackson Municipal Separate School Dist., 232 F. Supp. 241 (S.D. Miss. 1964). 124. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 125. 310 U.S. 586 (1940). 126. See Barnette v. West Virginia State Bd. of Educ., 47 F. Supp. 251 (S.D. W. Va. 1942). 127. 319 U.S. 624 (1943). 128. See Beer Institute v. Healy, 849 F.2d 753, 760 (2nd Cir. 1988), aff’d, Healy v. Beer Institute, 491 U.S. 324 (1989); Noble v. Drexel, Burnham, Lambert, Inc., 823 F.2d 849, 850 n.3 (5th Cir. 1987); Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 682 F.2d 811, 813 (9th Cir. 1982). 129. Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam). 130. Hutto v. Davis, 454 U.S. 370, 374–375 (1982) (per curiam). 131. See Caminker at 822, 828, 873. 132. See id. at 828– 834. 133. See id. at 849– 856, 861– 865. 134. See id. at 830, 832. 135. See Eisgruber 1994 at 362; R. Nagel 1993 at 20. 136. For documentary history of the various resolutions, see the Race Relations Reporter from 1956 and 1957. 137. The classic reference is to John Calhoun and South Carolina’s “nullification” of federal tariffs. 138. 1 Race Relations Reporter at 438 (1956). 139. Id. at 440. 140. Id. 141. See generally Devins & Fisher 2004 at 173–175. For a helpful piece on the resolutions that generally supports the distinctions I’m drawing here, see W. Moore. 142. See Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala. 2002); 335 F.2d 1282 (11th Cir. 2003). 143. See Court of the Judiciary (Alabama) Case No. 33 (November 13, 2003). 144. See also In re Sherman M. Booth, 3 Wis. 1, 91 (1854), rev’d sub nom. Ableman v. Booth, 62 U.S. 506 (1859), on remand, 11 Wis. 498 (1859) (instance of state court interpretive challenge to Court) (discussed in S. Levinson 1988 at 38). 145. 504 U.S. 298 (1992). 146. 386 U.S. 753 (1967). 147. 501 U.S. 808 (1991). 148. 482 U.S. 496 (1987). 149. 490 U.S. 805 (1989). 150. See State v. Payne, 791 S.W.2d 10 (Tenn. 1990). 299

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162. 163. 164. 165. 166.

167.

168. 169. 170. 171. 172.

173. 174. 175. 176. 177.

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501 U.S. at 854 (Marshall, J., dissenting). Id. at 847, 855, 854. 543 U.S. 551 (2005). 492 U.S. 361 (1989). Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). 536 U.S. 304 (2002). See State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003) (en banc). 543 U.S. at 594–595. Id. at 628– 629. Marbury v. Madison, 5 U.S. 137, 177 (1803). See Choper 1980; Eisgruber 2001 at chap. 6; Fleming 2000 at 217, 225, 229, 235, 243; L. Kramer 2000 at 290; Wechsler. But see Tushnet 1999 at 125–126 (despairing that such a line can consistently be drawn). INS v. Chadha, 462 U.S. 919 (1983). Baker v. Carr, 369 U.S. 186, 217 (1962), mentions the first two factors I list, plus some others. 469 U.S. 528 (1985). See The Federalist 45 and 46 (Madison) and supra n.161. See Carter v. Carter Coal Co., 298 U.S. 238 (1936); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Railroad Retirement Bd. v. Alton Railroad Co., 295 U.S. 330 (1935); Hammer v. Dagenhart, 247 U.S. 251 (1918). See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby, 312 U.S. 100, 117 (1941) (overruling Hammer); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 514 U.S. 549 (1995). 529 U.S. 598 (2000). Gonzales v. Raich, 545 U.S. 1, 5 (2005). There are many examples. See Dandridge v. Williams, 397 U.S. 471, 485–486 (1970). But see Romer v. Evans, 517 U.S. 620 (1996) (invalidating under rational basis test state constitutional provision preventing state or local government from protecting persons on the basis of sexual orientation); Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985) (invalidating state domestic preference tax statute). 487 U.S. 815, 848 (1988). See Williams v. Georgia, 349 U.S. 375 (1955); Patterson v. Alabama, 294 U.S. 600 (1935). 501 U.S. 452 (1991). 553 U.S. 723, 738 (2008). Monaghan 1975 at 10. 300

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178. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971); Miranda v. Arizona, 384 U.S. 436, 467 (1966); Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 421–427 (1946) (dormant Commerce Clause). But see Dickerson v. United States, 530 U.S. 428 (2000) (limiting the range of congressional options in responding to Miranda).

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BIBLIOGRAPHY

Ackerman, Bruce. (2007) The Living Constitution, 120 Harvard Law Review 1737. ———. (1998) We the People: Transformations. Cambridge, MA: Belknap Press of Harvard University Press. ———. (1991) We the People: Foundations. Cambridge, MA: Belknap Press of Harvard University Press. ———. (1989) Constitutional Politics/Constitutional Law, 99 Yale Law Journal 453. ———. (1984) The Storrs Lectures: Discovering the Constitution, 93 Yale Law Journal 1013. Adler, Matthew. (2006) Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?, 100 Northwestern University Law Review 719. Adler, Matthew, and Himma, Kenneth Einar, eds. (2009) The Rule of Recognition and the U.S. Constitution. New York: Oxford University Press. Agresto, John. (1984) The Supreme Court and Constitutional Democracy. Ithaca: Cornell University Press. Alexander, Larry. (2010) Telepathic Law, 27 Constitutional 139. ———. (2003) Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy, 20 Constitutional Commentary 369. ———. (2000) Can Law Survive the Asymmetry of Authority?, 19 Quinnipiac Law Review 463. ———. ed. (1998a) Constitutionalism: Philosophical Foundations. Cambridge: Cambridge University Press. ———. (1998b) Introduction, in Alexander 1998a. ———. (1993) Liberalism, Religion, and the Unity of Epistemology, 30 San Diego Law Review 763. ———. (1991) The Gap, 14 Harvard Journal of Law and Public Policy 695. ———. (1990) Law and Exclusionary Reasons, 18 Philosophical Topics 5. Alexander, Larry, and Prakash, Saikrishna. (2004) “Is That English You’re Speaking?” Why Intention Free Interpretation Is an Impossibility, 41 San Diego Law Review 967. 303

B

I

B

L

I

O

G

R

A

P

H

Y

Alexander, Larry, and Schauer, Frederick. (2009) Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance, in Adler and Himma. ———. (2007) Law’s Limited Domain Confronts Morality’s Universal Empire, 48 William & Mary Law Review 1579. ———. (2000) Defending Judicial Supremacy: A Reply, 17 Constitutional Commentary 455. ———. (1997) On Extrajudicial Constitutional Interpretation, 110 Harvard Law Review 1359. Alexander, Larry, and Sherwin, Emily. (2001) The Rule of Rules: Morality, Rules, and the Dilemmas of Law. Durham: Duke University Press. Alexander, Larry, and Solum, Lawrence. (2005) Popular? Constitutionalism?, 118 Harvard Law Review 1594. Amar, Akhil Reed. (1991) The Bill of Rights as a Constitution, 100 Yale Law Journal 1131. Applbaum, Arthur. (2010) Legitimacy without the Duty to Obey, 38 Philosophy & Public Affairs 215. Baghramian, Maria, and Ingram, Attracta, eds. (2000) Pluralism: The Philosophy and Politics of Diversity. London: Routledge. Balkin, Jack. (2011) Constitutional Redemption: Political Faith in an Unjust World. Cambridge, MA: Harvard University Press. ———. (2009a) Fidelity to Text and Principle, in Balkin and Siegel. ———. (2009b) Framework Originalism and the Living Constitution, 103 Northwestern University Law Review 549. ———. (2007a) Abortion and Original Meaning, 24 Constitutional Commentary 291. ———. (2007b) Original Meaning and Constitutional Redemption, 24 Constitutional Commentary 427. ———. (2004) Respect-Worthy: Frank Michelman and the Legitimate Constitution, 39 Tulsa Law Review 485. Balkin, Jack, and Siegel, Reva, eds. (2009) The Constitution in 2020. New York: Oxford University Press. Ball, Milner. (1984) Obligation: Not to the Law But to the Neighbor, 18 Georgia Law Review 911. Barber, Sotirios, and Fleming, James. (2007) Constitutional Interpretation: The Basic Questions. New York: Oxford University Press. Barnett, Randy. (2009) The Misconceived Assumption about Constitutional Assumptions, 103 Northwestern University Law Review 615. ———. (2007) Underlying Principles, 24 Constitutional Commentary 405. ———. (2005) Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 Constitutional Commentary 257. ———. (2004) Restoring the Lost Constitution: The Presumption of Liberty. Princeton: Princeton University Press. 304

B

I

B

L

I

O

G

R

A

P

H

Y

Barron, David. (2000) Constitutionalism in the Shadow of Doctrine: The President’s Non-Enforcement Power, 63 Law & Contemporary Problems 61. Barry, Brian. (2001) Culture and Equality: An Egalitarian Critique of Multiculturalism. Cambridge, MA: Harvard University Press. Baude, William. (2008) The Judgment Power, 96 Georgetown Law Journal 1807. Beckett, Samuel. (1954) Waiting for Godot. New York: Grove Press. Bedau, Hugo Adam, ed. (1991) Civil Disobedience in Focus. London: Routledge. Benditt, Theodore. (1987) The Rules of Precedent, in Goldstein. Bentham, Jeremy. (1843) Anarchical Fallacies, in Bentham and Bowring. Bentham, Jeremy, and Bowring, John. (1843) The Works of Jeremy Bentham. Edinburgh: William Tait. Berg, Thomas. (1995) Slouching towards Secularism: A Comment on Kiryas Joel School District v. Grumet, 44 Emory Law Journal 433. Berlin, Isaiah. (1998) The Proper Study of Mankind: An Anthology of Essays. New York: Farrar, Straus & Giroux. Berman, Mitchell. (2009) Originalism Is Bunk, 84 New York University Law Review 1. ———. (2007) Originalism and Its Discontents (Plus a Thought or Two about Abortion), 24 Constitutional Commentary 383. Bickel, Alexander. (1975) The Morality of Consent. New Haven: Yale University Press. Bloom, Harold. (1973) The Anxiety of Influence. New York: Oxford University Press. Bratman, Michael. (2005) Personal Rules and Rational Willpower, 42 San Diego Law Review 61. Brest, Paul. (1980) The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204. ———. (1975) The Conscientious Legislator’s Guide to Constitutional Interpretation, 27 Stanford Law Review 585. Burke, Edmund. (1955) Reflections on the Revolution in France. New York: Macmillan. Burley, Anne-Marie. (1992) Law among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 Columbia Law Review 1907. ———. (1989) The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 American Journal of International Law 461. Burley, Justine, ed. (2004) Dworkin and His Critics. Malden, MA: Blackwell. Burt, Robert. (1969) Miranda and Title III: A Morganatic Marriage, 1969 Supreme Court Review 81. Calabresi, Guido. (1982) A Common Law for the Age of Statutes. Cambridge, MA: Harvard University Press. Calabresi, Steven. (1999) Caesarism, Departmentalism, and Professor Paulsen, 83 Minnesota Law Review 1421. 305

B

I

B

L

I

O

G

R

A

P

H

Y

Calabresi, Steven, and Fine, Livia. (2009) Two Cheers for Professor Balkin’s Originalism, 103 Northwestern University Law Review 663. Caminker, Evan. (1994) Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stanford Law Review 817. Carter, Stephen. (1986) The Morgan Power and the Forced Reconsideration of Constitutional Decisions, 53 University of Chicago Law Review 819. Chemerinsky, Erwin. (2004) In Defense of Judicial Review: A Reply to Professor Kramer, 92 California Law Review 1013. Choper, Jesse. (1995) Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. Chicago: University of Chicago Press. ———. (1980) Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court. Chicago: University of Chicago Press. Coan, Andrew. (2010) The Irrelevance of Writtenness in Constitutional Interpretation, 158 University of Pennsylvania Law Review 1025. Cole, David. (1997) The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights, 1997 Supreme Court Review 31. Coleman, Jules. (2001) The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Oxford: Oxford University Press. Coleman, Jules, and Paul, Ellen Frankel, eds. (1987) Philosophy and Law. Malden, MA: Blackwell. Colton, Calvin, ed. (1856) The Private Correspondence of Henry Clay. New York: A. S. Barnes. Connolly, William. (2005) Pluralism. Durham: Duke University Press. Cover, Robert. (1983) Foreword: Nomos and Narrative, 97 Harvard Law Review 4. Daniels, Norman, ed. (1975) Reading Rawls: Critical Studies on Rawls’ A Theory of Justice. Stanford: Stanford University Press. Devins, Neal. (1998) How Not to Challenge the Court, 39 William & Mary Law Review 645. Devins, Neal, and Fisher, Louis. (2004) The Democratic Constitution. New York: Oxford University Press. ———. (1998) Judicial Exclusivity and Political Instability, 84 Virginia Law Review 83. Dorf, Michael, and Friedman, Barry. (2000) Shared Constitutional Interpretation, 2000 Supreme Court Review 61. Dworkin, Ronald. (2011) Justice for Hedgehogs. Cambridge, MA: Belknap Press of Harvard University Press. ———. (2006) Justice in Robes. Cambridge, MA: Belknap Press of Harvard University Press. ———. (2004) Hart’s Postscript and the Character of Political Philosophy, 24 Oxford Journal of Legal Studies 1. 306

B

I

B

L

I

O

G

R

A

P

H

Y

———. (1997a) The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 65 Fordham Law Review 1249. ———. (1997b) Reflections on Fidelity, 65 Fordham Law Review 1799. ———. (1993) Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. New York: Alfred A. Knopf. ———. (1986) Law’s Empire. Cambridge, MA: Belknap Press of Harvard University Press. ———. (1983) Law as Interpretation, in Mitchell. ———. (1977–78) Taking Rights Seriously. Cambridge, MA: Harvard University Press. Easterbrook, Frank. (1998) Textualism and the Dead Hand, 66 George Washington Law Review 1119. ———. (1989– 90) Presidential Review, 40 Case Western Reserve Law Review 905. Edmundson, William, ed. (1999) The Duty to Obey the Law: Selected Philosophical Readings. Lanham, MD: Rowman & Littlefield. ———. (1998) Three Anarchical Fallacies: An Essay on Political Authority. Cambridge: Cambridge University Press. Eisgruber, Christopher. (2001) Constitutional Self- Government. Cambridge, MA: Harvard University Press. ———. (1996) The Constitutional Value of Assimilation, 96 Columbia Law Review 87. ———. (1994) The Most Competent Branches: A Response to Professor Paulsen, 83 Georgetown Law Journal 347. Eisgruber, Christopher, and Sager, Lawrence. (2007) Religious Freedom and the Constitution. Cambridge, MA: Harvard University Press. ———. (1997) Congressional Power and Religious Liberty after City of Boerne v. Flores, 1997 Supreme Court Review 79. Elster, Jon. (2000) Ulysses Unbound. Cambridge: Cambridge University Press. ———. (1979) Ulysses and the Sirens: Studies in Rationality and Irrationality. Cambridge: Cambridge University Press. Elster, Jon, and Slagstad, Rune, eds. (1988) Constitutionalism and Democracy. Cambridge: Cambridge University Press. Ely, John Hart. (1980) Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press. Failer, Judith Lynn. (1997) The Draw and Drawbacks of Religious Enclaves in a Constitutional Democracy: Hasidic Public Schools in Kiryas Joel, 72 Indiana Law Journal 383. Fallon, Richard, Jr. (2008) Constitutional Precedent Viewed through the Lens of Hartian Positivist Jurisprudence, 86 North Carolina Law Review 1107. ———. (2005) Legitimacy and the Constitution, 118 Harvard Law Review 1787. ———. (2001) Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 New York University Law Review 570. 307

B

I

B

L

I

O

G

R

A

P

H

Y

Fallon, Richard, Jr., Manning, John, Meltzer, Daniel, and Shapiro, David, eds. (2009, 6th ed.) Hart and Wechsler’s The Federal Courts and the Federal System. New York: Foundation Press. Farber, Daniel. (2003) The Importance of Being Final, 20 Constitutional Commentary 359. ———. (1989) The Originalism Debate: A Guide for the Perplexed, 49 Ohio State Law Journal 1085. ———. (1982) The Supreme Court and the Rule of Law: Cooper v. Aaron Revisited, 1982 University of Illinois Law Review 387. Farber, Daniel, and Sherry, Suzanna. (2002) Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations. Chicago: University of Chicago Press. Federalist Papers, The (1961) New York: New American Library. Federalist Society, The, eds. (1992) Who Speaks for the Constitution? The Debate over Interpretive Authority. Washington: Author. Fisch, Jill. (2003) The Implications of Transition Theory for Stare Decisis, 13 Journal of Contemporary Legal Issues 93. Fish, Stanley. (2005) There Is No Textualist Position, 42 San Diego Law Review 629. ———. (1994) There’s No Such Thing as Free Speech . . . and It’s a Good Thing Too. New York: Oxford University Press. ———. (1983) Working on the Chain Gang: Interpretation in the Law and in Literary Criticism, in Mitchell. Fisher, Louis. (2005) Constitutional Law Writ Large, 49 St. Louis Law Journal 633. ———. (1988) Constitutional Dialogues: Interpretation as Political Process. Princeton: Princeton University Press. Flaherty, Martin. (1995) History “Lite” in Modern American Constitutionalism, 95 Columbia Law Review 523. Flathman, Richard. (2005) Pluralism and Liberal Democracy. Baltimore: Johns Hopkins University Press. ———. (1972) Political Obligation. New York: Atheneum. Fleming, James. (2006) Securing Constitutional Democracy: The Case of Autonomy. Chicago: University of Chicago Press. ———. (2000) The Constitution outside the Courts, 86 Cornell Law Review 215. Fletcher, George. (1993) Loyalty: An Essay on the Morality of Relationships. New York: Oxford University Press. Ford, Richard Thompson. (1997) Geography and Sovereignty: Jurisdictional Formation and Racial Segregation, 49 Stanford Law Review 1365. Fordham Law Review. (1997) Symposium: Fidelity in Constitutional Theory, 65 Fordham Law Review 1247 et seq. Freeman, Samuel. (2004) Public Reason and Political Justification, 72 Fordham Law Review 2021. 308

B

I

B

L

I

O

G

R

A

P

H

Y

Fried, Charles. (1994) Reply to Lawson, 17 Harvard Journal of Law & Public Policy 35. Friedman, Barry. (2009) The Will of the People. New York: Farrar, Straus and Giroux. ———. (2003) Mediated Popular Constitutionalism, 101 Michigan Law Review 2596. ———. (1993) Dialogue and Judicial Review, 91 Michigan Law Review 577. Friedrich, Carl, ed. (1949) The Philosophy of Kant: Immanuel Kant’s Moral and Political Writings. New York: Modern Library. Galston, William. (2002) Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice. Cambridge: Cambridge University Press. ———. (1991) Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State. Cambridge: Cambridge University Press. Gans, Chaim. (1992) Philosophical Anarchism and Political Disobedience. Cambridge: Cambridge University Press. Gedicks, Frederick Mark. (1995) The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence. Durham: Duke University Press. George, Robert, ed. (1996) The Autonomy of Law: Essays on Legal Positivism. Oxford: Oxford University Press. Gerber, Scott. (2008) The Court, the Constitution, and the History of Ideas, 61 Vanderbilt Law Review 1067. Gerhardt, Michael. (1991) The Role of Precedent in Constitutional Decisionmaking and Theory, 60 George Washington Law Review 68. Gewirth, Alan. (1970) Obligation: Political, Legal, Moral, in Pennock and Chapman. Gilbert, Margaret. (2006) A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society. Oxford: Clarendon Press. Goldberg, John, and Zipursky, Benjamin. (2006) Legal Obligations and the Internal Aspect of Rules, 75 Fordham Law Review 1229. Golding, Martin, and Edmundson, William, eds. (2005) The Blackwell Guide to the Philosophy of Law and Legal Theory. Malden, MA: Blackwell. Goldstein, Laurence, ed. (1987) Precedent in Law. Oxford: Oxford University Press. Goldsworthy, Jeffrey. (2000) Interpreting the Constitution in Its Second Century, 24 Melbourne University Law Review 677. Gray, John. (2000) Where Pluralists and Liberals Part Company, in Baghramian and Ingram. Green, Leslie. (2004) Associative Obligations and the State, in Burley, J. ———. (1995) Internal Minorities and Their Rights, in Kymlicka. ———. (1988) The Authority of the State. Oxford: Clarendon Press. Greenawalt, Kent. (2008) Religion and the Constitution: II: Establishment and Fairness. Princeton: Princeton University Press. ———. (2006) Religion and the Constitution: I: Free Exercise and Fairness. Princeton: Princeton University Press. 309

B

I

B

L

I

O

G

R

A

P

H

Y

———. (1996) Too Thin and Too Rich: Distinguishing Features of Legal Positivism, in George. ———. (1989) Conflicts of Law and Morality. New York: Oxford University Press. Greenberg, Mark, and Litman, Harry. (1998) The Meaning of Original Meaning, 88 Georgetown Law Journal 569. Greene, Abner. (2010) (Mis)Attribution, 87 Denver University Law Review 833. ———. (2009) Three Theories of Religious Equality . . . and of Exemptions, 87 Texas Law Review 963. ———. (2007) The Fit Dimension, 75 Fordham Law Review 2921. ———. (2006a) The Apparent Consistency of Religion Clause Doctrine, 21 Washington University Journal of Law & Policy 225. ———. (2006b) The Missing Step of Textualism, 74 Fordham Law Review 1913. ———. (2005a) Can We Be Legal Positivists without Being Constitutional Positivists?, 73 Fordham Law Review 1401. ———. (2005b) Is There a First Amendment Defense for Bush v. Gore?, 80 Notre Dame Law Review 1643. ———. (2004) Constitutional Reductionism, Rawls, and the Religion Clauses, 72 Fordham Law Review 2089. ———. (2001) Government Speech on Unsettled Issues, 69 Fordham Law Review 1667. ———. (2000a) Civil Society and Multiple Repositories of Power, 75 Chicago-Kent Law Review 477. ———. (2000b) Government of the Good, 53 Vanderbilt Law Review 1. ———. (1999) Why Vouchers Are Unconstitutional and Why They’re Not, 13 Notre Dame Journal of Law, Ethics & Public Policy 397. ———. (1997a) Discounting Accountability, 65 Fordham Law Review 1489. ———. (1997b) The Work of Knowledge, 72 Notre Dame Law Review 1479. ———. (1996a) The Irreducible Constitution, 7 San Diego Journal of Contemporary Legal Issues 293. ———. (1996b) Kiryas Joel and Two Mistakes about Equality, 96 Columbia Law Review 1. ———. (1994a) Checks and Balances in an Era of Presidential Lawmaking, 61 University of Chicago Law Review 123. ———. (1994b) Uncommon Ground: Reviewing Political Liberalism by John Rawls and Life’s Dominion by Ronald Dworkin, 62 George Washington Law Review 646. ———. (1993) The Political Balance of the Religion Clauses, 102 Yale Law Journal 1611. ———. (1991) Adjudicative Retroactivity in Administrative Law, 1991 Supreme Court Review 261. Griffin, Stephen. (2008) Rebooting Originalism, 2008 University of Illinois Law Review 1185. 310

B

I

B

L

I

O

G

R

A

P

H

Y

Gutmann, Amy, ed. (1994) Multiculturalism: Examining the Politics of Recognition. Princeton: Princeton University Press. Hamburger, Philip. (1992) A Constitutional Right of Religious Exemption: An Historical Perspective, 60 George Washington Law Review 915. Hardimon, Michael. (1994) Role Obligations, 7 Journal of Philosophy 333. Harrison, John. (1988) The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 Cornell Law Review 371. Hart, H. L. A. (1994, 2nd ed.) The Concept of Law. Oxford: Oxford University Press. ———. (1955) Are There Any Natural Rights?, 64 Philosophical Review 175. Hartnett, Edward. (1999) A Matter of Judgment, Not a Matter of Opinion, 74 New York University Law Review 123. Henry, Nannerl. (1970) Political Obligation and Collective Goods, in Pennock and Chapman. Hershovitz, Scott, ed. (2006a) Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin. Oxford: Oxford University Press. ———. (2006b) Integrity and Stare Decisis, in Hershovitz 2006a. Hirschman, Albert. (1970) Exit, Voice, and Loyalty: Response to Decline in Firms, Organizations, and States. Cambridge, MA: Harvard University Press. Hirschmann, Nancy. (1999) Freedom, Recognition, and Obligation: A Feminist Approach to Political Theory, in Edmundson 1999. Hobbes, Thomas. (1958) Leviathan. Indianapolis: Bobbs-Merrill. Holmes, Oliver Wendell. (1897) The Path of the Law, 10 Harvard Law Review 457. Holmes, Stephen. (1988) Precommitment and the Paradox of Democracy, in Elster and Slagstad. Hook, Sidney, ed. (1964) Law and Philosophy: A Symposium. New York: New York University Press. Horton, John. (2010, 2nd ed.) Political Obligation. Houndmills, Basingstoke, Hampshire, England: Palgrave Macmillan. Hume, David. (1965a) An Enquiry Concerning the Principles of Morals, in MacIntyre. ———. (1965b) A Treatise of Human Nature, in MacIntyre. ———. (1965c) Of the Original Contract, in MacIntyre. Hurd, Heidi. (2005) Why You Should Be a Law-Abiding Anarchist (Except When You Shouldn’t), 42 San Diego Law Review 75. ———. (1999) Moral Combat. Cambridge: Cambridge University Press. James, William. (1982) The Varieties of Religious Experience. New York: Penguin Books. Johnsen, Dawn. (2008) What’s a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 Boston University Law Review 395. ———. (2004) Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning, 67 Law & Contemporary Problems 105. 311

B

I

B

L

I

O

G

R

A

P

H

Y

———. (2000) Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemporary Problems 7. Kant, Immanuel. (1949) Metaphysical Foundations of Morals, in Friedrich. Kay, Richard. (2009) Original Intention and Public Meaning in Constitutional Interpretation, 103 Northwestern University Law Review 703. ———. (1988) Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Northwestern University Law Review 226. Kennedy, Duncan. (1973) Legal Formality, 2 Journal of Legal Studies 351. Kesavan, Vasan, and Paulsen, Michael Stokes. (2003) The Interpretive Force of the Constitution’s Secret Drafting History, 91 Georgetown Law Journal 1113. Klarman, Michael. (1998) What’s So Great about Constitutionalism?, 93 Northwestern University Law Review 145. ———. (1997a) Anti-Fidelity, 70 Southern California Law Review 381. ———. (1997b) Fidelity, Indeterminacy, and the Problems of Constitutional Evil, 65 Fordham Law Review 1739. Klosko, George. (2005) Political Obligations. Oxford: Oxford University Press. ———. (2004) The Principle of Fairness and Political Obligation. Lanham, MD.: Rowman & Littlefield. Koppelman, Andrew. (2002) Secular Purpose, 88 Virginia Law Review 87. Kramer, Larry. (2004) The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press. ———. (2001) Foreword: We the Court, 115 Harvard Law Review 4. ———. (2000) Putting the Politics Back into the Political Safeguards of Federalism, 100 Columbia Law Review 215. Kramer, Matthew. (2005) Legal and Moral Obligation, in Golding and Edmundson. ———. (2004) Where Law and Morality Meet. Oxford: Oxford University Press. ———. (1999) In Defense of Legal Positivism: Law without Trimmings. Oxford: Oxford University Press. Kranzler, Gershon. (1988) Williamsburg Memories. Lakewood, NJ: C.I.S. Publications. Kronman, Anthony. (1990) Precedent and Tradition, 99 Yale Law Journal 1029. Kymlicka, Will. (1995a) Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Oxford University Press. ———. ed. (1995b) The Rights of Minority Cultures. Oxford: Oxford University Press. ———. (1989) Liberalism, Community and Culture. Oxford: Clarendon Press. Laski, Harold. (1919) Authority in the Modern State. New Haven: Yale University Press. Lawson, Gary. (2007) Mostly Unconstitutional: The Case against Precedent Revisited, 5 Ave Maria Law Review 1. ———. (2003) Interpretive Equality as a Structural Imperative (or “Pucker Up and Settle This!”), 20 Constitutional Commentary 379. 312

B

I

B

L

I

O

G

R

A

P

H

Y

———. (1994) The Constitutional Case against Precedent, 17 Harvard Journal of Law & Public Policy 23. Lawson, Gary, and Moore, Christopher. (1996) The Executive Power of Constitutional Interpretation, 81 Iowa Law Review 1267. Lessig, Lawrence. (1993) Fidelity in Translation, 71 Texas Law Review 1165. Levinson, Daryl. (2011) Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harvard Law Review 657. Levinson, Sanford. (1997) On Political Boundary Lines, Multiculturalism, and the Liberal State, 72 Indiana Law Journal 403. ———. (1994) Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Georgetown Law Journal 373. ———. (1988) Constitutional Faith. Princeton: Princeton University Press. Lincoln, Abraham. (1989a) Abraham Lincoln: Speeches and Writings, 1832–1858. New York: Library of America. ———. (1989b) Abraham Lincoln: Speeches and Writings, 1859–1865. New York: Library of America. Locke, John. (1952) The Second Treatise of Government. Indianapolis: Bobbs-Merrill. Luban, David. (1991) Legal Traditionalism, 43 Stanford Law Review 1035. ———. (1989) Difference Made Legal: The Court and Dr. King, 87 Michigan Law Review 2152. Lyons, David. (1987) Constitutional Interpretation and Original Meaning, in Coleman and Paul. ———. (1985) Formal Justice and Judicial Precedent, 38 Vanderbilt Law Review 495. ———. (1984) Justification and Judicial Responsibility, 72 California Law Review 178. ———. (1981) Need, Necessity, and Political Obligation, 67 Virginia Law Review 63. ———. (1965) Forms and Limits of Utilitarianism. Oxford: Oxford University Press. Macey, Jonathan. (1989) The Internal and External Costs and Benefits of Stare Decisis, 65 Chicago-Kent Law Review 93. MacIntyre, Alasdair, ed. (1965) Hume’s Ethical Writings. Notre Dame: University of Notre Dame Press. Madison, James. (1867) Letters and Other Writings. Philadelphia: J. B. Lippincott. Markovits, Daniel. (2005) Democratic Deliberation, 114 Yale Law Journal 1897. Marx, Karl. (1967) Capital. New York: International Publishers. May, Christopher. (1994) Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative, 21 Hastings Constitutional Law Quarterly 865. McConnell, Michael. (2000) The Problem of Singling Out Religion, 50 DePaul Law Review 1. ———. (1998) Textualism and the Dead Hand of the Past, 66 George Washington Law Review 1127. 313

B

I

B

L

I

O

G

R

A

P

H

Y

———. (1997a) The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s “Moral Reading” of the Constitution, 65 Fordham Law Review 1269. ———. (1997b) Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harvard Law Review 153. ———. (1990a) Free Exercise Revisionism and the Smith Decision, 57 University of Chicago Law Review 1109, 1132. ———. (1990b) The Origins and Historical Understanding of Free Exercise of Religion, 103 Harvard Law Review 1409. ———. (1985) Accommodation of Religion, 1985 Supreme Court Review 1. McGinnis, John, and Rappaport, Michael. (2009a) Original Methods Originalism: A New Theory of Interpretation and the Case against Construction, 103 Northwestern University Law Review 751. ———. (2009b) Reconciling Originalism and Precedent, 103 Northwestern University Law Review 803. ———. (2007a) A Pragmatic Defense of Originalism, 101 Northwestern University Law Review 383. ———. (2007b) Original Interpretive Principles as the Core of Originalism, 24 Constitutional Commentary 371. Meese, Edwin, III. (1987a) The Law of the Constitution, 61 Tulane Law Review 979. ———. (1987b) The Tulane Speech: What I Meant, 61 Tulane Law Review 1003. Mendus, Susan. (2000) Pluralism and Scepticism in a Disenchanted World, in Baghramian and Ingram. Michaels, Walter Benn. (2009) A Defense of Old Originalism, 31 Western New England Law Review 21. Michelman, Frank. (2004) A Reply to Baker and Balkin, 39 Tulsa Law Review 649. ———. (2003a) Constitutional Legitimation for Political Acts, 66 Modern Law Review 1. ———. (2003b) Faith and Obligation: Or What Makes Sandy Sweat, 38 Tulsa Law Review 651. ———. (2003c) Ida’s Way: Constructing the Respect-Worthy Governmental System, 72 Fordham Law Review 345. ———. (2003d) Is the Constitution a Contract for Legitimacy?, 8 Review of Constitutional Studies 101. ———. (1986) Foreword: Traces of Self- Government, 100 Harvard Law Review 4. Miller, Geoffrey. (1993) The President’s Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemporary Problems 35. Minow, Martha. (1995) The Constitution and the Subgroup Question, 71 Indiana Law Journal 1. Mintz, Jerome. (1992) Hasidic People: A Place in the New World. Cambridge, MA: Harvard University Press. Mitchell, W. J. T., ed. (1983) The Politics of Interpretation. Chicago: University of Chicago Press. 314

B

I

B

L

I

O

G

R

A

P

H

Y

Monaghan, Henry. (2010) Supremacy Clause Textualism, 110 Columbia Law Review 731. ———. (1975) Foreword: Constitutional Common Law, 89 Harvard Law Review 1. Moore, Michael. (1996) The Dead Hand of Constitutional Tradition, 19 Harvard Journal of Law & Public Policy 263. ———. (1985) A Natural Law Theory of Interpretation, 58 Southern California Law Review 277. Moore, Wesley. (1994) Reconceiving Interpretive Autonomy: Insights from the Virginia and Kentucky Resolutions, 11 Constitutional Commentary 315. Morgan, Edmund. (2009) American Heroes: Profiles of Men and Women Who Shaped Early America. New York: W. W. Norton. Murphy, Walter. (1986) Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter, 48 Review of Politics 401. Nagel, Robert. (1998) Judicial Supremacy and the Settlement Function, 39 William & Mary Law Review 849. ———. (1993) Disagreement and Interpretation, 56 Law & Contemporary Problems 11. Nagel, Thomas. (1975) Rawls on Justice, in Daniels. Neuborne, Burt. (2008) A Comment on Professor David L. Shapiro’s The Role of Precedent in Constitutional Adjudication: An Introspection, 86 Texas Law Review See Also 51, http://www.texaslrev.com/sites/default/files/seealso/vol86/pdf/86Texas LRevSeeAlso51.pdf. ———. (1987) The Binding Quality of Supreme Court Precedent, 61 Tulane Law Review 991. Nussbaum, Martha. (2011) Perfectionist Liberalism and Political Liberalism, 39 Philosophy & Public Affairs 3. ———. (2008) Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York: Basic Books. Onuf, Peter, ed. (1993) Jeffersonian Legacies. Charlottesville: University Press of Virginia. Parfit, Derek. (1984) Reasons and Persons. Oxford: Clarendon Press. Paulsen, Michael Stokes. (2009) Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Northwestern University Law Review 857. ———. (2008a) Does the Supreme Court’s Current Doctrine of Stare Decisis Require Adherence to the Supreme Court’s Current Doctrine of Stare Decisis?, 86 North Carolina Law Review 1165. ———. (2008b) Lincoln and Judicial Authority, 83 Notre Dame Law Review 1227. ———. (2003) The Irrepressible Myth of Marbury, 101 Michigan Law Review 2706. ———. (1995) Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-third Century, 59 Albany Law Review 671. 315

B

I

B

L

I

O

G

R

A

P

H

Y

———. (1994a) The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Georgetown Law Journal 217. ———. (1994b) Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Georgetown Law Journal 385. ———. (1989) Accusing Justice: Some Variations on the Themes of Robert M. Cover’s Justice Accused, 7 Journal of Law & Religion 33. Pennock, J. Roland, and Chapman, John, eds. (1978) Nomos XIX: Anarchism. New York: New York University Press. ———. (1970) Nomos XII: Political and Legal Obligation. New York: Atherton Press. Perkins, Lisa. (1971) On Reconciling Autonomy and Authority, 82 Ethics 114. Perry, Michael. (1998) What Is “the Constitution”? (and Other Fundamental Questions), in Alexander 1998a. Perry, Stephen. (2006a) Associative Obligations and the Obligation to Obey the Law, in Hershovitz. ———. (2006b) Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View, 75 Fordham Law Review 1171. Plamenatz, J. P. (1968, 2nd ed.) Consent, Freedom and Political Obligation. Oxford: Oxford University Press. Plato (1961) The Collected Dialogues. Princeton: Princeton University Press. Posner, Richard. (1990) Bork and Beethoven, 42 Stanford Law Review 1365. Post, Robert. (2003) Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harvard Law Review 4. Post, Robert, and Siegel, Reva. (2009) Democratic Constitutionalism, in Balkin and Siegel. ———. (2003) Legislative Constitutionalism and Section Five Power: Polycentric Interpretation of the Family and Medical Leave Act, 112 Yale Law Journal 1943. Postema, Gerald. (2004) Integrity: Justice in Workclothes, in Burley, J. ———. (1991) Positivism, I Presume? . . . Comments on Schauer’s “Rules and the Rule of Law,” 14 Harvard Journal of Law & Public Policy 797. ———. (1987) Some Roots of Our Notion of Precedent, in Goldstein. Powell, H. Jefferson. (2008) Constitutional Conscience: The Moral Dimension of Judicial Decision. Chicago: University of Chicago Press. Prakash, Saikrishna Bangalore. (2008) The Executive’s Duty to Disregard Unconstitutional Laws, 96 Georgetown Law Journal 1613, 1634. Prichard, H. A. (1968) Moral Obligation and Duty and Interest. Oxford: Oxford University Press. Primus, Richard. (2008) When Should Original Meanings Matter?, 107 Michigan Law Review 165. Randolph, Thomas Jefferson, ed. (1829) Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson. Charlottesville, VA: F. Carr. 316

B

I

B

L

I

O

G

R

A

P

H

Y

Rawls, John. (2001) Justice as Fairness: A Restatement. Cambridge, MA: Belknap Press of Harvard University Press. ———. (1997) The Idea of Public Reason Revisited, 64 University of Chicago Law Review 765. ———. (1995) Political Liberalism: Expanded Edition. New York: Columbia University Press. ———. (1993) Political Liberalism. New York: Columbia University Press. ———. (1971) A Theory of Justice. Cambridge, MA: Belknap Press of Harvard University Press. ———. (1964) Legal Obligation and the Duty of Fair Play, in Hook. Raz, Joseph. (1999) The Obligation to Obey: Revision and Tradition, in Edmundson 1999. ———. (1998) On the Authority and Interpretation of Constitutions: Some Preliminaries, in Alexander 1998a. ———. (1986) The Morality of Freedom. Oxford: Clarendon Press. ———. (1979) The Authority of Law: Essays on Law and Morality. Oxford: Oxford University Press. Richards, David. (1986) Toleration and the Constitution. New York: Oxford University Press. ———. (1984) Conscience, Human Rights, and the Anarchist Challenge to the Obligation to Obey the Law, 18 Georgia Law Review 771. Riley, Patrick. (1978) On the “Kantian” Foundations of Robert Paul Wolff’s Anarchism, in Pennock and Chapman. Ripstein, Arthur. (2004) Authority and Coercion, 32 Philosophy & Public Affairs 2. Robinson, Glen. (1997) Communities, 83 Virginia Law Review 269. Rosen, Mark. (2002) “Illiberal” Societal Cultures, Liberalism, and American Constitutionalism, 12 Journal of Contemporary Legal Issues 803. ———. (1998) The Outer Limits of Community Self- Governance in Residential Associations, Municipalities, and Indian Country: A Liberal Theory, 84 Virginia Law Review 1053. Rousseau, Jean-Jacques. (1968) The Social Contract. Harmondsworth, Middlesex, England: Penguin Books. Rubenfeld, Jed. (2005) Revolution by Judiciary: The Structure of American Constitutional Law. Cambridge, MA: Harvard University Press. ———. (2001) Freedom and Time: A Theory of Constitutional Self- Government. New Haven: Yale University Press. Rubin, Israel. (1972) Satmar: An Island in the City. Chicago: Quadrangle Books. Ryan, James. (1992) Note, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Virginia Law Review 1407. Sager, Lawrence. (2004) Justice in Plainclothes: A Theory of American Constitutional Practice. New Haven: Yale University Press. 317

B

I

B

L

I

O

G

R

A

P

H

Y

———. (1978) Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harvard Law Review 1212. Samaha, Adam. (2008) Dead Hand Arguments and Constitutional Interpretation, 108 Columbia Law Review 606. Sandel, Michael. (2000) Commentary: Covenant and Consent, in Walzer et al. ———. (1998, 2nd ed.) Liberalism and the Limits of Justice. Cambridge: Cambridge University Press. ———. (1996) Democracy’s Discontent: America in Search of a Public Philosophy. Cambridge, MA: Belknap Press of Harvard University Press. Sartorius, Rolf. (1975) Individual Conduct and Social Norms: A Utilitarian Account of Social Union and the Rule of Law. Encino, CA: Dickenson. Scalia, Antonin. (1997) A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press. ———. (1989) Originalism: The Lesser Evil, 57 University of Cincinnati Law Review 849. Schaefer, Walter. (1982) Prospective Rulings: Two Perspectives, 1982 Supreme Court Review 1. Schauer, Frederick. (2009) Rules, Rationality, and the Significance of Standpoint, 35 Queen’s Law Journal. ———. (2007) Ambivalence about the Law, 49 Arizona Law Review 11. ———. (2005a) Deferring, 103 Michigan Law Review 1567. ———. (2005b) Imposing Rules, 42 San Diego Law Review 85. ———. (2004a) Judicial Supremacy and the Modest Constitution, 92 California Law Review 1045. ———. (2004b) The Limited Domain of the Law, 90 Virginia Law Review 1909. ———. (1992) The Questions of Authority, 81 Georgetown Law Journal 95. ———. (1991a) Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life. Oxford: Clarendon Press. ———. (1991b) Rules and the Rule of Law, 14 Harvard Journal of Law and Public Policy 645. ———. (1987a) The Jurisprudence of Reasons, 85 Michigan Law Review 847. ———. (1987b) Precedent, 39 Stanford Law Review 571. ———. (1985) Easy Cases, 58 Southern California Law Review 399. Scheffler, Samuel. (2001) Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought. Oxford: Oxford University Press. Sebok, Anthony. (1997) The Insatiable Constitution, 70 Southern California Law Review 417. Seidman, Louis Michael. (2001) Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review. New Haven: Yale University Press. Shachar, Ayelet. (2001) Multicultural Jurisdictions: Cultural Differences and Women’s Rights. Cambridge: Cambridge University Press. 318

B

I

B

L

I

O

G

R

A

P

H

Y

Shakespeare, William. (1969) The Complete Works. New York: Viking Press. Shapiro, David. (2001) Civil Procedure: Preclusion in Civil Actions. New York: Foundation Press. Shapiro, Martin. (1972) Toward a Theory of Stare Decisis, 1 Journal of Legal Studies 125. Shapiro, Scott. (2009) What Is the Rule of Recognition (and Does It Exist)?, in Adler and Himma. ———. (2006) What Is the Internal Point of View?, 75 Fordham Law Review 1157. ———. (2005) The Rationality of Rule- Guided Behavior: A Statement of the Problem, 42 San Diego Law Review 55. Sherwin, Emily. (1998) Ducking Dred Scott: A Response to Alexander and Schauer, 15 Constitutional Commentary 65. Siegel, Reva. (2006) Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA, 94 California Law Review 1323. ———. (2001) Text in Context: Gender and the Constitution from a Social Movement Perspective, 150 University of Pennsylvania Law Review 297. Simmons, A. John. (2005) The Duty to Obey and Our Natural Moral Duties, in Wellman and Simmons. ———. (2001) Justification and Legitimacy: Essays on Rights and Obligations. Cambridge: Cambridge University Press. ———. (1984) Consent, Free Choice, and Democratic Government, 18 Georgia Law Review 791. ———. (1979) Moral Principles and Political Obligations. Princeton: Princeton University Press. Simon, Larry. (1985) The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 California Law Review 1482. Sloan, Herbert. (1993) “The Earth Belongs in Usufruct to the Living,” in Onuf. Smart, J.  J.  C. (1973) An Outline of a System of Utilitarian Ethics, in Smart and Williams. Smart, J. J. C., and Williams, Bernard. (1973) Utilitarianism: For and Against. Cambridge: Cambridge University Press. Smith, M. B. E. (1999) Is There a Prima Facie Obligation to Obey the Law?, in Edmundson 1999. Smith, Steven. (1995) Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom. New York: Oxford University Press. ———. (1989a) Law without Mind, 88 Michigan Law Review 104. ———. (1989b) Separation and the “Secular”: Reconstructing the Disestablishment Decision, 67 Texas Law Review 955. Smith, Tara. (2009) Originalism’s Misplaced Fidelity: “Original” Meaning Is Not Objective, 26 Constitutional Commentary 1. 319

B

I

B

L

I

O

G

R

A

P

H

Y

Soper, Philip. (2002) The Ethics of Deference: Learning from Law’s Morals. Cambridge: Cambridge University Press. ———. (1984) A Theory of Law. Cambridge, MA: Harvard University Press. Sreedhar, Susanne, and Delmas, Candice. (2010) State Legitimacy and Political Obligation in Justice for Hedgehogs: The Radical Potential of Dworkinian Dignity, 90 Boston University Law Review 737. Stevens, John Paul. (1983) The Life Span of a Judge-Made Rule, 58 New York University Law Review 1. Stolzenberg, Nomi Maya. (2010) Theses on Secularism, 47 San Diego Law Review 1041. Strauss, David. (2003) Common Law, Common Ground, and Jefferson’s Principle, 112 Yale Law Journal 1717. ———. (1993) Presidential Interpretation of the Constitution, 15 Cardozo Law Review 113. Strauss, Peter. (2000) The President and the Choices Not to Enforce, 63 Law & Contemporary Problems 107. Sullivan, Kathleen. (1992) Religion and Liberal Democracy, 59 University of Chicago Law Review 195. Sunstein, Cass. (2008) Due Process Traditionalism, 106 Michigan Law Review 1543. ———. (2006) Burkean Minimalism, 105 Michigan Law Review 353. ———. (2005) Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. New York: Basic Books. ———. (2003) What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 Supreme Court Review 27. ———. (1996) Legal Reasoning and Political Conflict. New York: Oxford University Press. ———. (1993) The Partial Constitution. Cambridge, MA: Harvard University Press. ———. (1987) Lochner’s Legacy, 87 Columbia Law Review 873. Taylor, Charles. (1994) The Politics of Recognition, in Gutmann. Tamir, Yael. (1995) Liberal Nationalism. Princeton: Princeton University Press. Thoreau, Henry David. (1991) Civil Disobedience, in Bedau. Tushnet, Mark. (1999) Taking the Constitution Away from the Courts. Princeton: Princeton University Press. ———. (1983) Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harvard Law Review 781. Vermeule, Adrian. (2007) Common Law Constitutionalism and the Limits of Reason, 107 Columbia Law Review 1482. Waldron, Jeremy. (2009) Who Needs Rules of Recognition?, in Adler and Himma. ———. (1999) Law and Disagreement. Oxford: Oxford University Press. ———. (1998) Precommitment and Disagreement, in Alexander 1998a. Wall, Grenville. (1978) Philosophical Anarchism Revisited, in Pennock and Chapman. Walzer, Michael. (1970) Obligations: Essays on Disobedience, War, and Citizenship. Cambridge, MA: Harvard University Press. 320

B

I

B

L

I

O

G

R

A

P

H

Y

Walzer, Michael, Lorberbaum, Menachem, and Zohar, Noam, eds. (2000) The Jewish Political Tradition: Vol. 1: Authority. New Haven: Yale University Press. Wechsler, Herbert. (1954) The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Columbia Law Review 543. Wellman, Christopher Heath. (2001) Friends, Compatriots, and Special Political Obligations, 29 Political Theory 217. ———. (1997) Associative Allegiances and Political Obligations, 23 Social Theory and Practice 181. Wellman, Christopher Heath, and Simmons, A. John. (2005) Is There a Duty to Obey the Law? Cambridge: Cambridge University Press. Westen, Peter. (1982) The Empty Idea of Equality, 95 Harvard Law Review 537. Whittington, Keith. (2004) The New Originalism, 2 Georgetown Journal of Law & Public Policy 599. ———. (2002) Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 North Carolina Law Review 773. ———. (1999a) Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, MA: Harvard University Press. ———. (1999b) Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence: University Press of Kansas. Williams, Bernard. (1973) A Critique of Utilitarianism, in Smart and Williams. Williams, Norman. (2006) Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage, 154 University of Pennsylvania Law Review 565. Wolff, Jonathan. (2000) Political Obligation: A Pluralistic Approach, in Baghramian and Ingram. Wolff, Robert Paul. (1998) In Defense of Anarchism. Berkeley: University of California Press. Zipursky, Benjamin. (2006) Legal Obligations and the Internal Aspect of Rules, 75 Fordham Law Review 1229.

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ACKNOWLEDGMENTS

John Nagle and I met as first-year students at Michigan Law School, and have had a rich and rewarding friendship ever since. Through word and deed, John, who teaches at Notre Dame Law School, has taught me much about faith, of various kinds. Our discussions about law and politics have helped me keep an open mind, and I’m sure have influenced the contours of my thinking in ways known and unknown. Ben Zipursky and I  have been colleagues and friends for many years. Ben plays an unmatched role in advancing Fordham Law School’s academic mission. He has been a constant source of wisdom for me as this book has gone through various stages. Every day, I am grateful for finding a job I love, teaching and writing in a community of scholars across the country who strive to understand our constitutional order and do a better job of securing the blessings of liberty. In the spirit of collegial friendship, I dedicate this book to the two scholars who have meant the most to me, John and Ben. For extensive comments on the manuscript, I am indebted to John and Ben, and to Larry Alexander, Chris Eisgruber, Fred Schauer, and an anonymous Harvard University Press reviewer. This book has been a long time in the works, and its completion would have been impossible without the love and support of family and friends. In par ticular, I would like to thank my mother, Judy Greene, her partner, Sy Schwartz, and my sister, Becky Greene, as well as several cherished friends, Carole Chervin, Dave Daskal, Ellen Dubin, Tracy Higgins (at Fordham), David Post, Matt Shapiro, and Elizabeth Stafford. I would also like to single out Jim Fleming, my former Fordham colleague, for help and encouragement throughout the process. At Fordham, I was fortunate to work for many years with my friend Bill Treanor. Bill’s deanship led our school to wonderful new heights. I could not have written the book without his trust in me and in this project. I have also been fortunate to work with our current outstanding dean, Mike Martin, our revered former dean, John Feerick, and two talented and creative associate deans, Matt Diller and Sheila Foster, all of whom have supported this project wholeheartedly. Many other Fordham colleagues, present and past, have helped my thinking in many ways. In addition to those mentioned above, I would like to thank Frank Chiang, Martin 323

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Flaherty, Sonia Katyal, Jae Lee, Tom Lee, Mark Patterson, Russ Pearce, Eduardo Penalver, Aaron Saiger, Peter Siegelman, and Linda Sugin. Howie Erichson deserves special thanks for teaching me what I needed to know about the law of judgments; this is a good time to make the obligatory but nonetheless true disclaimer: all mistakes in this book are mine alone. Librarians Alissa Black-Dorward and Todd Melnick provided invaluable research assistance, as did my former students Stefano Costa, Rachel Luria, and Jill Siciliano. Becky Shank and Jean Smith helped in many ways providing secretarial ser vices. I presented portions of this book at Fordham Law School workshops, a Columbia Law School legal theory workshop, and a joint Penn/NYU/Vanderbilt constitutional law conference, and I am grateful to all, as well as to Fordham Law School and University for generous summer research funding and leaves of absence in the spring of 2005 and 2010. Outside of Fordham, many people (too many to name or remember!) have helped in one way or another over the years with this project. I would like to thank Aditi Bagchi, Ed Baker, Jules Coleman, Stanley Fish, Les Green, Kent Greenawalt, Linda McClain, Frank Michelman, Joseph Raz, Scott Shapiro, Phil Soper, and Lloyd Weinreb. John Goldberg and Tony Sebok were particularly helpful over the years in my grappling with questions of legal theory. Alyson Solomon went above and beyond in helping me construct a reading list about the akedah, which was the subject of the introduction in an earlier version of the manuscript. At Harvard University Press, my editor Elizabeth Knoll and her assistant Matthew Hills carefully shepherded the manuscript through various stages, and I am enormously grateful for their work. Finally, I would like to acknowledge the deepest debt—to those scholars over many centuries who have grappled with the questions of political and interpretive obligation that I cover in this book. In fields this rich, it is difficult to say anything truly new; I hope at least to have contributed something worthy and provocative to the ongoing discussion. Portions of this book draw, as indicated below, from prior publications of mine. I thank the following law reviews for permission to excerpt these works. Any errors in my use of these works are mine alone. Kiryas Joel and Two Mistakes about Equality, 96 Columbia Law Review 1 (1996); excerpted in Chapter 2: “Permeable Sovereignty and the Religion Clauses.” Against Interpretive Obligation (to the Supreme Court), 75 Fordham Law Review 1661 (2006); excerpted in Chapter 4. Constitutional (Ir)responsibility, 71 Fordham Law Review 1807 (2003); excerpted in Chapters 3 and 4. Constitutional Reductionism, Rawls, and the Religion Clauses, 72 Fordham Law Review 2089 (2004); excerpted in Chapter 1: “Natural Duty and Associative Obligation.”

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The Fit Dimension, 75 Fordham Law Review 2921 (2007); excerpted in substantial part in Chapter 3. Government Speech on Unsettled Issues, 69 Fordham Law Review 1667 (2001); excerpted in Chapter 1: “Systemic Stability.” Uncommon Ground—A Review of Political Liberalism by John Rawls and Life’s Dominion by Ronald Dworkin, 62 George Washington Law Review 646 (1994); excerpted in Chapter 1: “Natural Duty and Associative Obligation.” The Work of Knowledge, Vol. 72 Notre Dame Law Review, Page 1479 (1997). Reprinted with permission. © Notre Dame Law Review, University of Notre Dame; excerpted in Chapter 1: “Systemic Stability.” The Irreducible Constitution, 7 San Diego Journal of Contemporary Legal Issues 293 (1996). Copyright 1996 The Journal of Contemporary Legal Issues. Reprinted with the permission of The Journal of Contemporary Legal Issues; excerpted in Chapter 1: “Systemic Stability.” Three Theories of Religious Equality . . . and of Exemptions, 87 Texas Law Review 963 (2009); excerpted in substantial part in Chapter 2: “Exiting from the Law,” with permission of Texas Law Review for English language only. The Political Balance of the Religion Clauses, 102 Yale Law Journal 1611 (1993); excerpted in Chapter 2: “Permeable Sovereignty and the Religion Clauses.”

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INDEX

Acceptance, of rules (or law) by citizens and officials, 90– 94; relationship to political obligation, 91– 93 Accommodations, 3; exemptions compared and contrasted, 5, 134; and religion clauses, 11, 140–149 Act utilitarian arguments for political obligation, 96– 98 Alexander, Larry: and the “gap,” 5, 29–32, 99; and interpretive obligation to the Supreme Court, 13, 214–215, 219–222, 226–227; and deference to precedent, 190–192 Anarchism, 5, 32–33 Anchor theory, of interpretive obligation, 12, 171, 199–201 Applbaum, Arthur, and correlativity, 257n37 Aquinas, and relationship between autonomy and authority, 96 Aspirational, understanding of our Constitution, 174–176 Associative obligation, theory of political obligation, 7– 8, 63– 94; relationship to agent- centered theories, 63; relationship to natural duty theory, 63 Authority: asymmetry of, 5, 29–32; ser vice conception, 9, 107–110; and contentindependent reasons, 16; and contentdependent reasons, 17; relationship to autonomy, 38, 96, 106, 108 Autonomy: Kant/Rousseau view, 33; and consent theory of political obligation, 36, 38; relationship to authority, 38, 96, 106, 108; and fair play theory of political obligation, 40–41; and political participation theory of

political obligation, 45, 105; in the state of nature, 94; relationship to settlement, 101–103 Bailey v. Drexel Furniture Co., 296n81 Balkin, Jack: and faith and redemption theory of constitutional legitimacy, 7, 50–52; and original meaning, 179–180 Barnett, Randy, and natural duty theory of political obligation, 263n94 Barron, David, and presidential review, 231 Barry, Brian, and rejection of exemptions, 11, 119–122, 126–127, 134 Berman, Mitchell, and original meaning, 200 Bivens v. Six Unknown Named Agents, 250 Blackmun, Justice Harry, and exemptions, 128, 133 Bloom, Harold, and misreading, 195 Board of Education of Kiryas Joel Village School District v. Grumet, 11, 144–149 Boumediene v. Bush, 250 Bowen v. Roy, 123 Brandenburg v. Ohio, 196 Bratman, Michael, and commitments, 289n118 Brennan, Justice William: and exemptions, 133–134; and Michael H. v. Gerald D., 175; and interpretive obligation to the Supreme Court, 234–237 Brown v. Board of Education I and II, 212, 225, 241, 244 Burden of proof: aspect of political obligation, 2, 4, 18–19, 22, 118–119; aspect of interpretive obligation, 4, 18

327

I N D E X

Burke, Edmund: and settlement, 9, 105–107; and precedent theory of interpretive obligation, 12, 171, 194, 198 Bush, George W., and presidential review, 231 Calabresi, Steven, and original meaning, 181 Calhoun, John, and nullification, 299n137 Caminker, Evan, and interpretive obligation to the Supreme Court, 242 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 193 City of Boerne v. Flores, 144, 236–239, 245–247, 250–251 Civil disobedience, and contrast with conscientious objection, 11, 118 Clay, Henry, and interpretive obligation to the Supreme Court, 214 Clinton v. City of New York, 230 Coerced contracts, and bindingness, 83– 84, 86– 88 Coercion, burden on state to justify, 14 Collateral bar rule, 53–54 Commerce clause, 175, 193, 232, 248–249 Commitmentarian, theory of interpretive obligation, 12, 166–167, 181–187 Common ground: theory of interpretive obligation, 12, 167–168, 187–190; basis for political obligation, 23, 26, 57– 63, 72, 77, 121–122 Comparative error costs, 99–101 Connolly, William, and pluralism, 21 Conscientious objection, and contrast with civil disobedience, 11, 118 Consent, theory of political obligation, 6, 35–40; relationship to fair play theory, 40–41 Constitutional legitimacy, 26, 207–208 Constitution, United States. See Accommodations; Commerce clause; Constitutional legitimacy; Departmentalism; Exemptions; Fit; Fourteenth Amendment, section 5; Government speech; Interpretive obligation; Justification; Levels of generality; Lineitem veto; Multiple repositories of power; Oath; Original meaning; Positional duties; Precedent; Presidential review; Religion clauses of the First Amendment; Supremacy

clause; Supreme Court; Take care clause; Underenforcement Contagion, 9, 13, 95, 97– 98, 191, 219 Content- dependent reasons, 17, 182 Content-independent reasons, 14, 16, 107, 182–183, 186 Cooper v. Aaron, 212–213, 215, 219, 236–239, 245–247, 250 Corporation of the Presiding Bishop v. Amos, 142 Correlativity, of political obligation and legitimacy, 5, 24–34, 101 Cover, Robert, and law of judgments, 7, 54–56 Cutter v. Wilkinson, 142 Dead hand, concern regarding political obligation, 47, 89 Democratic legitimacy: and original meaning (or understanding), 11, 165–166, 172–181; and Supreme Court as interpretive authority, 12 Dennis v. United States, 196 Departmentalism, 12, 54, 199, 216, 219, 243 Desuetude, 227 Douglas, Stephen, and interpretive obligation to the Supreme Court, 232 Dred Scott v. Sandford, 218, 228, 231–232 Dworkin, Ronald: and associative obligation theory of political obligation, 8, 63, 67, 69–78; and integrity theory of interpretive obligation, 168–170, 192–197; and moral realism originalism, 177–180; and paradigms, 200; and primacy of justification in constitutional interpretation, 201–204 Edmundson, William, and political legitimacy, 257n33 Edwards v. Aguillard, 153 Eisgruber, Christopher, and limited acceptance of exemptions, 11, 122–123, 131, 134–135, 135–139 Elster, Jon, and commitmentarian theory of interpretive obligation, 184 Ely, John Hart, and theory of judicial review, 49 Emigration, and insufficiency as remedy to political obligation/legitimacy problem, 10, 39, 45, 66, 117–118 328

I N D E X

Employment Division v. Smith, 116, 120, 127–128, 135–137, 143–145, 157, 236 Epperson v. Arkansas, 152, 156 Estate of Thornton v. Caldor, Inc., 144–145 Exemptions, 5, 117–139; accommodations compared and contrasted, 5, 134; as remedy for political obligation/legitimacy problem, 10, 23–24, 114–115; rejection of by Brian Barry, 11; rejection of by Justice Stevens, 11; limited acceptance of by Christopher Eisgruber and Lawrence Sager, 11, 122–123, 131, 134–139; and religion clauses, 11, 47, 62, 149–157; and illiberal groups, 11, 157–160; and compelling state interest, 123–129; and harm to claimants, 129–135 Fair play, theory of political obligation, 6, 40–45, 78– 80; relationship to consent theory, 40–41; relationship to systemic stability theory, 42–43 Farber, Daniel, and interpretive obligation to the Supreme Court, 215–216 Fine, Livia, and original meaning, 181 Fish, Stanley, and role of fit in constitutional interpretation, 205 Fit, role of in constitutional interpretation, 12, 201–209 Flathman, Richard, and contagion argument, 97 Fleming, James, and integrity theory of interpretive obligation, 170, 192, 196 Ford, Richard Thompson, and Kiryas Joel, 148 Fourteenth Amendment, section 5, and interpretive obligation to the Supreme Court, 232–239, 251 Gag rule, of public reason, 61– 62 Galston, William, and pluralism, 22 Gans, Chaim, and contagion argument, 272n338 Gap (between authority’s and subject’s reasons), 5, 29–32, 99 Garcia v. San Antonio Metropolitan Transit Authority, 248–249, 251 Generality: aspect of interpretive obligation, 4, 15; aspect of political obligation, 4, 15–17 Generation: and interpretive obligation to the Supreme Court, 13, 224–227; and political

obligation, 47–48, 105–106; and interpretive obligation to prior sources of constitutional meaning, 172–173 Gilbert, Margaret, and associative obligation theory of political obligation, 8, 83– 90 Goldberg, John, and relationship between legal and moral obligation, 92 Goldman v. Weinberger, 123, 138, 145 Gonzales v. O Centro Espirita, 128–129 Gonzales v. Raich, 249 Government speech, relationship to associative obligation, 68– 69 Gray, John, and pluralism, 22 Green, Leslie: and the particularity problem of natural duty theory, 57; and Dworkin on associative obligation, 74; and illiberal groups, 158–159; and consent theory of political obligation, 260n24 Greenawalt, Kent: and rule utilitarian arguments, 98; and exemptions, 129–130 Gregory v. Ashcroft, 250 Guidelines, for officials in deciding whether to follow the Supreme Court, 13, 223–247; coordination/stability, 223; vote and response, 223–224; distinguishability, 224; persuasiveness, 224; generational participation, 224–227; positional duties, 227–247 Hammer v. Dagenhart, 296n81 Hand, Judge Brevard, 240–241 Hardimon, Michael, and role obligations, 65 Harlan, Justice John Marshall, and interpretive obligation to the Supreme Court, 234 Hart, H. L. A.: and fair play theory of political obligation, 41; and acceptance, 90– 94; and relationship between legal and political obligation, 91– 93; and existence conditions for a legal system, 93– 94, 187, 208; and core/ periphery line, 200 Henry, Patrick, and exemptions, 131 Horton, John, and associative obligation theory of political obligation, 270n307 Hume, David: and consent theory of political obligation, 39; and systemic stability theory of political obligation, 258n2 Hurd, Heidi, and interdependence of reasons, 31

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Kronman, Anthony, and deference to precedent, 194–195 Kymlicka, Will, and protection of minority groups, 20, 21

Illiberal groups: and exemptions, 11, 157–160; and exit therefrom, 22, 159 INS v. Chadha, 232, 248 Interposition, 244–245 Interpretive obligation (constitutional): defined, 2, 161; prima facie, 2, 4, 17–18; generality, 4; burden of proof, 4, 18; to prior sources of constitutional meaning, 12, 161–209 [otherwise indexed simply as “interpretive obligation”]; to the Supreme Court, 12–13, 210–251; Supreme Court’s response to interpretive challenge, 13, 247–251; relationship to political obligation, 161–162; relationship to statutory interpretation, 164; democratic legitimacy theory, 165–166, 172–181; Rubenfeld commitmentarian theory, 166–167, 181–187; Strauss and Postema common ground theory, 167–168, 187–190; precedent theory, 161, 169–171, 190–199; anchor theory, 171, 199–201; role of fit, 201–209; structural argument (Supreme Court), 212–218; settlement argument (Supreme Court), 214–215, 218–222; guidelines for officials, 223–247; positional duties, 227–247 Jackson, Andrew, and interpretive obligation to the Supreme Court, 216–217, 228, 232 Jefferson, Thomas: and interpretive obligation, 12, 172–173, 186–187, 225–226; and interpretive obligation to the Supreme Court, 228 Judgments, law of, 7, 12, 52–56, 210–211, 215, 217, 222, 225–226, 244–245 Justification, primacy of in constitutional interpretation, 12, 177, 189–190, 201–204 Katzenbach v. Morgan, 233–237 Kennedy, Justice Anthony: and Kiryas Joel, 147–148; and interpretive obligation to the Supreme Court, 237–239 Klarman, Michael, and primacy of justification in constitutional interpretation, 202 Klosko, George: and multiple principles (or a mixed theory) of political obligation, 17; and fair play theory of political obligation, 40–43 Kramer, Matthew, and generality (or invariability), 15

Larson v. Valente, 144–145 Laski, Harold, and pluralism, 21 Lassiter v. Northampton County Board of Elections, 233 Lawson, Gary, and deference to precedent, 198–199 Legal obligations, as distinguished from moral ones, 4, 14, 19–20 Legal positivism, 4, 14; and the separability thesis, 14, 77 Legal system, existence conditions, 93– 94 Lemon v. Kurtzman, 140 Levels of generality, issue in constitutional interpretation, 138, 175, 180, 202, 204 Liberalism, relationship between comprehensive and political, 57– 63, 121 Liberal democracy, aspects of, 46, 102, 119, 207–208 Libertarian claims, 3–5, 20–21 Lincoln, Abraham, and interpretive obligation to the Supreme Court, 218–219, 228, 231–232 Line-item veto, 230–231 Lochner v. New York, 232 Locke, John, and consent theory of political obligation, 35, 39 Loyalty, 7– 8, 63– 64, 76, 93 Luban, David, and commitmentarian theory of interpretive obligation, 185 Lyng v. Northwest Indian Cemetery Protective Association, 123, 135–136, 145 Lyons, David: and deference to precedent, 197; and primacy of justification in constitutional interpretation, 204; and utilitarian arguments, 273n348 Madison, James, and deference to precedent, 198 Marbury v. Madison, 210, 213, 236, 239, 247–248 Markovits, Daniel, and generational participation, 227 Marshall, Chief Justice John, and judicial review, 213, 247

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I N D E X

Marshall, Justice Thurgood, and interpretive obligation to the Supreme Court, 246–247 Marx, Karl, and demystification, 9, 103 McConnell, Michael: and exemptions, 133; and original meaning, 179–180 McCreary County v. ACLU, 153 McCulloch v. Maryland, 228, 233 McGinnis, John, and original meaning, 179 Mendus, Susan, and pluralism, 22 Michael H. v. Gerald D., 175 Michelman, Frank, and political participation theory of political legitimacy, 7, 48–50 Minersville School District v. Gobitis, 241 Miranda v. Arizona, 250 Mize, Judge Sidney, and interpretive obligation to the Supreme Court, 241 Monaghan, Henry, and overenforcement, 250 Moore, Chief Justice Roy, 245 Moral obligations, as distinguished from legal ones, 4, 14, 19–20, 90– 94 Morrison v. Olson, 196 Multiple (or plural) interpretive authority, 3, 14, 24, 215–222, 228, 234, 239, 243, 246; and departmentalism, 12 Multiple repositories of power, 3–4, 9, 12, 23, 103–105, 115, 139, 213, 216, 228, 246 Nagel, Robert, and interpretive obligation to the Supreme Court, 214 Nagel, Thomas, and critique of Rawls, 264n133 Natural duty, theory of political obligation, 7, 56– 63; and common ground, 23; and the particularity problem, 57, 63; relationship to systemic stability theory, 57; relationship to associative obligation, 63 Natural law, 14 Notice-rule of law concerns, 164, 197, 205, 207, 222 Nozick, Robert, and fair play theory of political obligation, 41 Nullification, 244–245 Nussbaum, Martha: and exemptions, 124–125, 131; and illiberal groups, 158 Oath, and interpretive obligation to the Supreme Court, 210, 244

Obama, Barack, and presidential review, 230 O’Connor, Justice Sandra Day: and exemptions, 128; and endorsement test, 153; and interpretive obligation to the Supreme Court, 247, 250 Official immunity, 164, 197, 216 Oregon v. Mitchell, 298n102 Original meaning (or understanding), theory of interpretive obligation, 12, 161, 165–166, 172–181, 200; expected applications version, 176–177, 181; moral realism version, 177–180; intermediate version, 178–181 Overenforcement, 250 Paulsen, Michael Stokes: and law of judgments, 7, 54; and departmentalism, 54, 199; and original meaning, 179; and deference to precedent, 198–199 Payne v. Tennessee, 246–247 Permeable sovereignty, 20–24, 33–34; defined, 2–3; and accommodation, 3; libertarian claims distinguished, 3–5, 20–21; connection to pluralism, 4, 21–23; as remedy for political obligation/legitimacy problem, 10, 13–14; and religion clauses, 11, 47, 139–157; and burden on citizen to offer proper reasons for exemption, 19 Perry, Michael, and original meaning, 179 Perry, Stephen: and associative obligation, 77–78; and Hart, 91 Planned Parenthood v. Casey, 156, 191–192 Plato, and fair play theory of political obligation, 40 Pluralism, 4, 21–23, 139 Political balance of the religion clauses, 149–157 Political legitimacy: defined, 2; thick, justification conception, 2, 5, 27–29; correlative with political obligation, 5, 24–34; ascription of, 18; thin conceptions, 24–27, 57–58 Political obligation: defined, 2, 14, 73–74; burden of proof, 2, 4, 18–19, 22, 118–119; prima facie, 2, 4, 17–18; generality, 4, 15–17; correlative with political legitimacy, 5, 24–34; mixed theories, 6, 17; agent- centered theories, 6–7, 35–56; status-based theories,

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Political obligation (continued) 6, 7– 8, 56– 94; state- centered theories, 6, 8–10, 94–113; consent, 6, 35–40; fair play, 6, 40–45; political participation, 6–7, 45–56; natural duty, 7, 56– 63; associative obligation, 7–8, 63– 94; systemic stability, 8–10, 94–113; common ground, 23, 26, 57– 63; relationship to interpretive obligation, 161–162 Political participation, theory of political obligation, 6–7, 45–56, 105–106 Political question doctrine, 221, 248–249 Positional duties, regarding interpretive obligation to the Supreme Court, 227–247; the President, 228–232; Congress, 232–239; federal courts, 239–243; state and local officials, 243–247 Postema, Gerald: and common ground theory of interpretive obligation, 12, 168, 187–190; and commitmentarian theory of interpretive obligation, 182 Powell, Justice Lewis, and interpretive obligation to the Supreme Court, 240 Precedent, theory of interpretive obligation, 12, 161, 169–171, 190–199; and Edmund Burke, 12; and stability, 12, 169, 190–192; and integrity/ equality, 12, 169–170, 192–197 Precommitment, relationship to commitmentarian theory of interpretive obligation, 182–185 Presidential review, 228–232 Prima facie: aspect of political obligation, 2, 4, 17–18; aspect of interpretive obligation, 2, 4, 17–18 Promises, and relationship to political obligation, 79– 80 Quill Corporation v. North Dakota, 245–246 Rappaport, Michael, and original meaning, 179 Rawls, John: and natural duty theory of political obligation, 7, 26, 56– 63; and correlativity, 25–26, 57– 63; and common ground basis for political obligation, 26, 57– 63; and fair play theory of political obligation, 41, 43; and the particularity problem, 57; relationship to interpretive obligation, 188

Raz, Joseph: and ser vice conception of authority, 9, 107–110; and relationship between respect for law and political obligation, 93; and commitmentarian theory of interpretive obligation, 185 Reagan, Ronald, and interpretive obligation to the Supreme Court, 232 Reasons, interdependence of, 28–29, 31–32 Religion clauses of the First Amendment, 115–116, 139–157, 236–237, 239; and judicial exemptions, 11, 47, 62, 149–157; and legislative accommodations, 11, 140–149 Religious Freedom Restoration Act (RFRA), 128–129, 143–144, 236–239, 251 Roberts, Chief Justice John, and exemptions, 128 Roe v. Wade, 156, 191–192, 196 Role obligations, 64– 68 Roper v. Simmons, 246–247 Rosen, Mark, and critique of Rawls, 264n134 Rousseau, Jean-Jacques: and consent theory of political obligation, 37; relationship to Gilbert argument for political obligation, 85 Rubenfeld, Jed, and commitmentarian theory of interpretive obligation, 12, 166–167, 181–187, 226 Rule- sensitive particularism, 9, 30, 100–101, 198, 223, 243 Rule utilitarian arguments for political obligation, 98– 99 Sager, Lawrence: and limited acceptance of exemptions, 11, 122–123, 131, 134–139; and underenforcement, 134–136, 220; and integrity theory of interpretive obligation, 170, 192 Scalia, Justice Antonin: and plain meaning rule, 109–110, 200; and exemptions, 128, 131; and Michael H. v. Gerald D., 175; and statutory interpretation, 177; and interpretive obligation to the Supreme Court, 247 Scarlett, Judge Frank, and interpretive obligation to the Supreme Court, 241 Schauer, Frederick: and asymmetry of authority, 5, 29–32; and rule- sensitive particularism, 9, 30, 100; and presumptive positivism, 10, 109, 110–113; and interpretive obligation to the Supreme Court, 13, 214–215, 219–222, 226–227; and deference to 332

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precedent, 190–191, 192, 202–204; and easy/ hard case line, 200 Scheffler, Samuel: and role obligations, 65; and the distributive objection to associative obligation, 66– 67 Sedition Act, 228 Seidman, Louis Michael: and political participation theory of political legitimacy, 7, 48–50; and correlativity, 26–27 Separability thesis, of legal positivism, 14 Settlement: risks from, 3, 9–10, 82– 83, 101–107; difficulty of achieving, 10, 108–113; and constitutional interpretation, 12–13, 105, 189–190; and the Supreme Court, 214–215, 218–222 Shachar, Ayelet, and illiberal groups, 159–160 Shapiro, Scott, and Hart, 91 Sherwin, Emily, and the “gap,” 99 Siegel, Reva, and interpretive obligation to the Supreme Court, 228 Simmons, A. John: and generality, 15; and correlativity, 33 Simon, Larry, and original meaning, 173–174 Skidmore v. Swift & Co., 193 Sloan, Herbert, and Jefferson’s generational theory, 287n76 Smith, Steven, and original meaning, 179 Smith v. United States, 275n383 Solum, Lawrence, and interpretive obligation to the Supreme Court, 219 Soper, Philip, and associative obligation theory of political obligation, 8, 78– 83 Souter, Justice David, and religious purpose test, 153 Statutory interpretation, relationship to constitutional interpretation, 164, 177, 207 Stevens, Justice John Paul: and rejection of exemptions, 11, 132–133; and rejection of accommodations, 237 Stone v. Graham, 152–153 Strauss, David, and common ground theory of interpretive obligation, 12, 167–168, 187–190 Strauss, Peter, and interpretive obligation to the Supreme Court, 229 Sunstein, Cass: and precedent theory of interpretive obligation, 169; and integrity theory of interpretive obligation, 171, 192

Supremacy clause, 212, 215–216 Supreme Court: and interpretive obligation, 12–13, 161, 210–251; guidelines for officials, 13, 223–247; and response to interpretive challenge, 13, 247–251; and political control over, 200–201, 217; and structural argument, 212–214, 215–218; and settlement argument, 214–215, 218–222 Systemic stability: and correlativity, 5, 27–30; and self- dealing, 8– 9, 94–101, 205–206; theory of political obligation, 8–10, 94–113, 258n2; and settlement, 9, 95– 96, 101–107; theory of interpretive obligation, 12, 169; relationship to fair play theory, 42–43; relationship to natural duty theory, 57 Take care clause, 229 Taylor, Charles, and pluralism, 21 Texas Monthly, Inc. v. Bullock, 142–144 Thompson v. Oklahoma, 250 Underenforcement, 134–136, 220 United States v. Darby, 297n81 United States v. Lee, 123–124 United States v. Lopez, 249 United States v. Morrison, 249 Virginia and Kentucky Resolutions, 245 Walker v. City of Birmingham, 53–54, 56 Wall, Grenville, and relationship between autonomy and authority, 96, 106 Wallace v. Jaffree, 153 Walzer, Michael, and pluralism, 22–23 Webster, Daniel, and interpretive obligation to the Supreme Court, 214 West Virginia State Board of Education v. Barnette, 241 Whittington, Keith: and constitutional interpretation vs. construction, 174; and original meaning, 179 Williams, Roger, and exemptions, 124–125 Wolff, Robert Paul, and relationship between autonomy and authority, 38 Zipursky, Benjamin, and relationship between legal and moral obligation, 92– 93 333