Rawls and Law 2011942198, 9781409430438, 9781315089188

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Rawls and Law

Philosophers and Law Series Editor: Tom Campbell Titles in the Series: Cicero and Modern Law

Marx and Law

Richard 0. Brooks

Susan Easton

Aquinas and Modern Law

Hobbes on Law

Richard 0. Brooks and James Bernard Murphy

Claire Finkelstein

Aristotle and Modern Law

Foucault and Law

Richard 0. Brooks and James Bernard Murphy

Peter Filzpatrick and Ben Golder

Augustine and Modern Law

Derrida and Law

Richard 0. Brooks and James Bernm-d Murphy

Pierre Legrand

Plato and Modern Law

Hume and Law

Richard 0. Brooks

Ken Mackinnon

Locke and Law

Gadamer and Law

Thom Brooks

Francis J Mootz 111

Rawls and Law

Nietzsche and Law

Thom Brooks

Francis J Mootz 111 and Peter Goodrich

Rousseau and Law

Wittgenstein and Law

Thom Brooks

Dennis Patterson

Kantand Law

Hegel and Law

B. Sharon Byrd and Joachim Hruschka

Michael Salter

Rawls and Law

Edited by

Thom Brooks Newcastle University, UK

First published 2012 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OXI4 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright © 2012 Thom Brooks. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part ofthis book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, induding pbotocopying and recording, or in any information storage or retrieval system, witbout permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Wherever possible, these reprints are made from a copy ofthe original printing, but these can themselves be ofvery variable quality. Whilst the publisher has made every effort to ensure the quality ofthe reprint, some variability may inevitably remain.

British Library Cataloguing in Publication Data Rawls and law. - (Philosophers and law) 1. Rawls, lohn., 1921-2002. 2.Law- Philosophy. 3. Political science-Philosophy. I. Series [I. Brooks, Thom. 340.1 '092- dc22 Library ofCongress Number: 2011942198 ISBN 9781409430438 (hbk)

Contents Aeknowledgements Series Pre/aee Introduction

PART I

vii ix XI

CONSTITUTIONAL LAW

2 Frank I. Michelman (2003), 'Rawls on Constitutionalism and Constitutional Law' , in S. Freeman (ed.), The Cambridge Companion to Rawls, Cambridge: Cambridge University Press, pp. 394-425. 3 2 Ronald Dworkin (2004), 'Rawls and the Law' , Fordham Law Review, 72, pp. 1387-405. 35 3 CharIes A. Kelbley (2004), 'Are There Limits to Constitutional Change? Rawls on Comprehensive Doctrines, Unconstitutional Amendments, and the Basis of Equality', Fordham Law Review, 72, pp. 1487- 536. 55 4 Neomi Rao (1998), ' ABackdoor to Policy Making: The Use ofPhilosophers by the Supreme Court', University o/Chieago Law Review, 65, pp. 1371-40l. 105 5 Thom Brooks (2003), ' Does Philosophy Deserve a PI ace at the Supreme Court?' , Rutgers Law Reeord, 27, pp. 1-17. l37 PART 11

IMMIGRATION

6 Matthew Lister (2010), 'Immigration, Association, and the Family', Law and Philosophy, 29, pp. 717-45.

157

PART III POLITICAL LIBERALISM AND PUBLIC REASON

7 Michael J. SandeI (1994), 'Political Liberalism', Harvard Law Review, 107, pp. 1765- 94. 8 Frank I. Michelman (1994), 'The Subject of Liberalism ', Stanford Law Review, 46, pp. 1807- 33. 9 Kent Greenawalt (1995), 'Some Problems with Public Reason in lohn Rawls's PolWeal Liberalism', Loyola 0/ Los Angeles Law Review, 28, pp. 1303- 17. 10 Ronald C. Den Otter (2005), ' Can a Liberal Take His Own Side in an Argument? The Case for lohn Rawls ' s Idea ofPolitica1 Liberalism ' , Saint Louis University Law Journal, 49, pp. 319- 66.

189 219 247

263

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PART IV PRIVATE LAW 11 Kevin A. Kordana and David H. Tabachnick (2006), 'On Belling the Cat: Rawls and Tort as Corrective lustice' , Virginia Law Review, 92, pp. 1279- 310. 12 Arthur Ripstein (2006), 'Private Order and Public lustice: Kant and Rawls', Virginia Law Review, 92, pp. 1391-438.

313 345

PART V REPARATIONS 13 Martin D. Carcieri (2010), ' Rawls and Reparations', MichiganJournal ofRace and Law, 15, pp. 267- 316.

395

PART VI GLOBAL JUSTICE AND INTERNATIONAL LAW

14 lohn Tasioulas (2002), 'From Utopia to Kazanistan : John Rawls and the Law of Peoples' , Oxford Journal ofLegal Studies, 22, pp. 367- 96. 15 Thomas W. Pogge (2004), ' The Incoherence between Raw Is' s Theories of lustice' , Fordham Law Review, 72, pp. 1739- 59. 16 Leif Wenar (2006), 'Why Rawls is Not a Cosmopolitan Egalitarian ' , in R. Martin and DA Reidy (eds), Rawls 's Law ofPeoples: ARealistic Utopia?, Oxford: Blackwell Publishing, pp. 95- 113. 17 Regina Kreide (2009), 'Preventing Military Humanitarian Intervention? John Rawls and lürgen Habermas on a Just Global Order' , German Law Journal, 10, pp. 93- 113. 18 David Reidy (2010), 'Human Rights and Liberal Toleration', Canadian Journal of Law and Jurisprudence, 23, pp. 287- 317.

Name Index

447 477

499

519 541

573

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. Thom Brooks (2003), 'Does Philosophy Deserve a Place at the Supreme Court?' , Rutgers Law Record, 27, pp. 1- 17. Copyright © 2003 Thom Brooks. Blackwell Publishing for the essay: Leif Wenar (2006), 'Why Rawls is Not a Cosmopolitan Egalitarian' , in R. Martin and D.A. Reidy (eds), Rawls s Law ofPeoples: ARealistic Utopia? , Oxford: Blackwell Publishing, pp. 95- 113 . Copyright © 2006 LeifWenar. Cambridge University Press for the essay: Frank I. Michelman (2003), ' Rawls on Constitutionalism and Constitutional Law', in S. Freeman (ed.), The Cambridge Companion to Rawls, Cambridge: Cambridge University Press, pp. 394-425. Copyright © 2003 Cambridge University Press. Martin D. Carcieri (2010), 'Rawls and Reparations' , Michigan Journal of Race and Law, 15, pp. 267- 316. Copyright © 2010 Martin D. Carcieri. Copyright Clearance Center for the essays: Neomi Rao (1998), 'A Backdoor to Policy Making: The Use ofPhilosophers by the Supreme Court', University ofChicago Law Review, 65, pp. 1371-40l. Copyright © 1998 University ofChicago Law School; Michael J. Sandei (1994), 'Political Liberalism', Harvard Law Review, 107, pp. 1765- 94. Copyright © 1994 Harvard Law Review Association; Frank I. Michelman (1994), 'The Subject ofLiberalism' , Stanford Law Review, 46, pp. 1807- 33. Copyright © 1994 Stanford Law Review; Kevin A. Kordana and David H. Tabachnick (2006), 'On Belling the Cat: Rawls and Tort as Corrective Justice' , Virginia Law Review, 92, pp. 1279- 310. Copyright © 2006 Virginia Law Review; Arthur Ripstein (2006), ' Private Order and Public Justice: Kant and Rawls', Virginia Law Review, 92, pp. 1391-438. Copyright © 2006 Virginia Law Review. Fordham Law Review for the essays: Ronald Dworkin (2004), 'Rawls and the Law' , Fordham Law Review, 72, pp. 1387-405; Charles A. Kelbley (2004), 'Are There Limits to Constitutional Change? Rawls on Comprehensive Doctrines, Unconstitutional Amendments, and the Basis of Equality' , Fordham Law Review, 72, pp. 1487- 536; Thomas W. Pogge (2004), 'The Incoherence between Rawls's Theories of Justice', Fordham Law Review, 72, pp. 1739- 59. German Law Journal for the essay: Regina Kreide (2009), ' Preventing Military Humanitarian Intervention? John Rawls and Jürgen Habermas on a Just Global Order', German Law Journal, 10, pp. 93- 1l3 .

viii

Rawls and Law

Loyola ofLos Angeles Law Review for the essay: Kent Greenawalt (1995), 'Some Problems with Public Reason in lohn Rawls's Political Liberalism' , Loyola o/Los Angeles Law Review, 28, pp. 1303-17. Oxford University Press for the essays: lohn Tasioulas (2002), 'From Utopia to Kazanistan: lohn Rawls and the Law of Peoples', Ox/ord Journal 0/ Legal Studies, 22, pp. 367- 96. Copyright © 2002 Oxford University Press; Saint Louis University Schoo1 of Law for the essay: Ronald C. Den Otter (2005), ' Can a Liberal Take His Own Side in an Argument? The Case for lohn Rawls's Idea of Political Liberalism' , Saint Louis University Law Journal, 49, pp. 319- 66. Copyright © 2005 St Louis University Schoo1 ofLaw, St Louis, Missouri. Springer for the essay: Matthew Lister (2010), ' Immigration, Association, and the Family ', Law and Philosophy, 29, pp. 717-45. Copyright © 2010 Springer. University ofWestern Ontario for the essay: David Reidy (2010), ' Human Rights and Liberal Toleration', Canadian Journal 0/Law and Jurisprudence, 23, pp. 287- 317. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface The series Philosophers and Law selects and makes accessible the most important essays in Englisb tbat deal witb tbe application to law of tbe work of major philosopbers for wbom law was not a main concern. The series encompasses not only what these philosophers had to say about law but also brings together essays wh ich consider those aspects of the work of major philosopbers which bear on our interpretation and assessment of current law and legal tbeory. The essays are based on scholarly study of particular philosophers and deal with both the nature and role oflaw and the application of philosophy to specific areas oflaw. Some philosophers, such as Hans Kelsen, Roscoe Pound and Herbert Hart are known principally as philosophers of law. Others, whose names are not primarily or immediately associated with law, such as Aristotle, Kant and Hegel, have, nevertheless, had a profound infIuence on legal thought. It is with the significance for law of this second group of philosophers that tbis series is concemed. Each volume in the series deals with a major philosopher whose work has been taken up and applied to the study and critique of law and legal systems. The essays, which have all been previously published in law, pbilosophy and politics journals and books, are selected and introduced by an editor with a special interest in the philosopher in question and an engagement in contemporary legal studies. The essays chosen represent the most important and influential contributions to the interpretation ofthe philosophers concemed and the continuing relevance oftheir work to current legal issues.

TOM CAMPBELL Series Editor Centre Jor Applied Philosophy and Publie Ethies Charles Sturt University

Introduction lohn Rawls (1921- 2002) is widely held to be amongst the most important political philosophers for over a century. Rawls and Law is the first work of its kind to publish in one place the most influential essays in the field covering a number of topics, including constitutionalism, democratic tbeory, egalitarianism, feminism, global justice, political liberalism, tbe rule of law and public reason. Ihe volume should help inform both scholars and students coming to tbe study of Rawls's work for the first time of botb tbe importance and complexity of bis ideas, as weil as shed light on how they might be further improved and applied. Ihis Introduction will beg in with abrief overview ofRawls's theory ofjustice to familiarize readers and then move on to discuss the essays contained in eacb Part ofthe book.

Rawlsian Justice Rawls offers a new theory of justice. Ibis was initially publisbed in A Theory 0/Justice, but later revised, incorporating further ideas, in Political Liberalism (Rawls, 1971 , 1996).1Justice as Fairness (200 I) presents a summary of bis later views. I will briefly offer an outline of Rawls 's main arguments before turning attention to the contents of Rawls and Lmv. Rawls begins by considering political society as a fair system of cooperation over time from one generation to tbe next. What would sucb a political society look like? His tbeory of justice develops from tbis main organizing idea. Several ideas readily appear. First, we would bave a particular view of citizens. Citizens engaged in a fair system of cooperation would bave to be free and equal. Otberwise, tbey would be unable to cooperate fairly, bowever understood over generations. Citizens are conceived as having an effective sense of justice. Ibis permits tbem the ability to understand and apply principles of justice, as weil as revise their views of justice witb otbers over time. Citizens bave a second capacity, or moral power, in addition to a sense of justice: this is the capacity for a conception ofthe good. Second, we would bave an idea of a well-ordered society. A fair system of cooperation would be a society tbat is effectively regulated by a public conception of justice. Ibe wellordered society would be acceptable to citizens and mutually recognized as sucb. One important aspect is tbe society's basic structure: tbis is tbe primary political and social institutions of tbe society tbat compose tbe system of fair cooperation. Ihe basic structure assigns basic rights and duties and provides the background social framework within wbicb the activities of associations and individuals take pi ace (Rawls, 200 I, p. 10). Ihus, Rawls 's tbeory ofjustice or 'justice as fairness' - is a political, not general, conception of justice. Our concern is with tbe project of applying principles to tbe basic structure of society and working from tbere.

2

For more on Rawls's idea ofpoliticalliberalism, see Brooks and Nussbaum (forthcoming).

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Rawls and Law

The main idea is to develop a framework of how we might approach political questions and resolve disputes, but without saying exactly how all questions should be settled in advance. One task is to detennine principles of justice that will apply to the basic structure. Rawls argues that we should perfonn a hypothetical thought experiment. We specify fair agreement from within an original position. This is a non-historical setting. We join with others as parties to the original position and stand behind a veil of ignorance. This veil brackets morally arbitrary features from entering into our deliberations. We are to be ignorant of our ethnicity, sex, sexual orientation and native endowments. We then consider what principles of justice these parties would unanimously consent to. Rawls argues that the parties to the original position would accept the following two principles: I. Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all. 2. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions offair equality of opportunity; and, second, they are to be to the greatest benefit of the leastadvantaged members ofsociety (Rawls, 2001 , pp. 42- 3). These two principles of justice may be understood in the following way. First, there is the principle of basic liberties. Second, there is the principle split into two parts of: (bI) fair equality of opportunity; and (b2) the difference principle. These three parts have a lexicalorder: (a) > (b I) > (b2). Ideally, there would be no potential c1ash between the principles. However, where there is conflict we give priority in this way for the following reasons. Basic liberties take lexical priority over the second principle. This is because the justification of social and economic inequalities should never come at the expense ofbasic liberties. These Iiberties include a 'social minimum ' of our basic needs (Rawls, 2001, p. 48). The second principle is more complicated. The idea is that parties to the original position would prioritize equality of opportunity over the difference principle. Fair equality of opportunity is understood to require not only that social positions and public offices are open to all, but also that all have a fair chance to attain them. These principles apply to the basic structure and provide 'background justice' (Rawls, 2001 , p. 53). However, these principles are only meant to help provide a framework, and they do not settle all political questions in advance. Rawls argues that all persons may hold a reasonable comprehensive doctrine. The doctrine is a view about value and meaning. Examples include mainstream religious views, such as Catholicism, Iudaism or Islam, and philosophical views, such as deontology or utilitarianism . Rawls recognizes the fact ofreasonable pluralism. This is the fact that different persons may possess different, but not unreasonable, comprehensive doctrines. Thus, you and I may agree about a doctrine, and our difference is not a case of only one us holding a reasonable view. Some may hold unreasonable views and these would include fascist or racist doctrines. Such doctrines may provide an understanding of values, but they are unreasonable in that they are based on rigid ideologies of hate or fear, and are irrational. Most hold reasonable comprehensive doctrines. The problem is that many of us will hold different doctrines.

Rawls and Law

xiii

The fact of reasonable pluralism gives rise to the problem of political stability. If many in society hold different and reasonable comprehensive doctrines, then citizens are divided on substantive moral questions. How can political stability be possible in the face of such difference? The answer lies in the idea of political liberalism. Political liberalism does not prioritize one reasonable comprehensive doctrine over any other. It forges agreement in a new way. Citizens engage with each other through the use ofpublic reason. A public reason is a reason tbat is grounded in my reasonable comprehensive doctrine tbat may be acceptable to any other such doctrine. We weigh the relative merit of competing public reasons by reflective equilibrium and forge an overlapping consensus. This consensus is tbe possibility of future political stability. There is a great deal more that can - and perhaps should - be said about Rawls's idea of justice. 2 My discussion here is merely indicative ofthe main arguments and general character of his complex and genuinely fascinating view. Nevertheless, I will now offer a few words about the contents ofthis volume and develop furtber certain aspects ofRawls's theory and how it may be applied to questions concerning law and legal theory.

Constitutional Law Part I of tbis volume appropriately comprises several important essays conceming Rawls's theory ofjustice and constitutionallaw. Frank Michelman (Chapter 1) offers a true tour de force of constitutional legal thinking and insight into Rawls's work. There are certainly differences between how American constitutional law has developed and, say, tbe lexical priority of basic liberties as the first principle of political justice. Michelman says that by Rawlsian standards 'tbe U.S. Supreme Court's performance over the years has been so-so' (p. 28). Yet this fact does not foreclose the possibility of greater future agreement. In Chapter 2 Ronald Dworkin addresses tbis issue. For Dworkin, Rawls's political philosophy offers new and useful insights to lawyers conceming the character and value of legality. Rawls's view is descriptive in that it beg ins from a shared understanding of 'what is taken for granted' , but 'it is in other ways substantive and normative because the equilibrium it seeks is with principles judged for independent appeal' (p. 40). Dworkin takes Rawls's view to be consistent with Dworkinian constructive interpretativism and for several reasons, not least their similar views on objectivity (p. 53). Perhaps, then, it is a matter oftime before the courts recognize the value of Rawls's ideas? Some believe that Rawls 's theory ofjustice bas had a profound influence on legal discourse despite the fact the US Supreme Court has yet to cite his work. For example, Charles Kelbley (Chapter 3) argues that Rawls 's ideas have had a deep impact on how we conceive institution al legal reform today. Special mention is made of Rawls's two contributions - namely, the relationship between politicalliberalism and comprehensive doctrines. This offers us a new perspective on political neutrality that has areal use for constitutionallaw today.

2

For an excellent overview, see Freeman (2007).

xiv

Rawls and Law

Not everyone agrees. Neomi Rao (Chapter 4) counters that, yes, philosophers such as Rawls have influenced the American courts. Moreover, this is a very bad thing. It is bad because the courts should rely on legal precedents and not moral philosophy. The use of philosophy is an illegitimate substitute for precedent. Thus, where the law runs out, the use ofphilosophy is ushered in. Judges have used philosophy to argue for controversial positions often unsupported by law. Therefore, philosophy has no place in the courthouse and it should remain outside the front door. Thom Brooks (Chapter 5) is critical ofthis view on many levels. The US Supreme Court mentions philosophers only rarely, if at all. Where they are mentioned, there is no evidence that reference to philosophers and their ideas have held priority over legal precedents. Brooks considers the famous Philosophers' Brief which draws particular criticism from Rao. He argues that she is mistaken on many counts regarding the Brief and its claims. lndeed, the Brief does not argue its case on the basis of moral philosophy, but of legal record. Moreover, there is some evidence that the US Supreme Court indirectly responds to its main arguments even if this response is not explicit. Philosophy deserves a place at the US Supreme Court after aIl, and this is no bad thing.

Immigration Part II deals with immigration, a topic not only of increasing importance for our globalized world, but also the target of greater attention. In Chapter 6 Matthew Lister attempts to offer important insights into what should be included in any comprehensive normative account concerning the limits of discretion states should have in setting their immigration policies. The freedom of association all citizens possess is a freedom that may cross borders. Lister argues that there are reasons to claim that the right to family-based immigration can outweigh the associative desires of a majority under certain circumstances. The understanding of rights and general framework of justice that help us with these claims largely derive from Rawls's work. Thus, Rawlsian justice may help shed new light on immigration law and associated duties.

Political Liberalism and Public Reason One key part of Rawls's theory of justice concerns the relation between political liberalism and public reason. Part III incorporates insightful essays that relate Rawls's thinking on these ideas to law. Michael J. Sandei (Chapter 7) reviews Rawls's arguments for political Iiberalism and offers a helpful summary of the many debates that have been inspired by Rawls's work. These debates concern Rawls's defence ofthe priority ofthe right over the good, as weil as his political conception ofthe individual and what politicaljustice is about (and what it is not

Rawls and Law

xv

about). SandeI presents important criticisms of these views. For example, Rawls argues that we should bracket differences in our comprehensive doctrines and find consensus through the use ofpublic reason and an overlapping consensus. SandeI replies that we sbould ' engage rather than avoid the comprehensive moral and religious doctrines at stake' (p. 202). Frank I. Michelman (Chapter 8) believes that there may be greater promise in Rawls's politicalliberalism. However, ultimately, much of its argument depends on a particular idea of the self, and the problem is that this idea is contestable and is, perhaps, more of a fantasy and also utopian. This concern about Rawls and his idea ofthe self is also pursued by Ronald Den Otter in Chapter 10. By contrast, Kent Greenawalt (Cbapter 9) finds a problem elsewbere in Rawls 's idea ofpublic reason. Ifwe rely purelyon public reasons to forge agreement on public policy, then this raises the problem that parties may be forced to forego what they believe are tbe best (private) reasons for a position in favour ofthe best public reasons. Greenawalt offers this challenge: ... aRoman Catholic who addresses aborti on legislation would have to refrain from relying on a confidently held religious belief that from the moment of conception an embryo is entitled to the moral status of a full human being. Does asking people to refrain from relying on what they believe most deeply itself create a kind of unfairness? (p. 249)

This challenge raises new questions about the role ofpublic reason in politicalliberalism as fair and politically neutral. Is this neutrality genuinely neutral? Does political neutrality come at too high a price?

Private Law How helpful is Rawls's theory of justice for developing a clearer idea of private law? Part IV addresses this question. Arthur Ripstein (Chapter 12) argues that private rights protect an important variety of freedom , but that their enforcement is the responsibility of the wider society and an exercise of political power. This presents a kind of antinomy. Ripstein looks to Kant and Rawls for a helpful solution. Kevin Kordana and David Tabachnick (Chapter 11) disagree with much ofRipstein 's analysis, arguing that Rawls at best offers a 'consequentialist (outcome-oriented) theory of tort law' (p. 316). Raw Is 's work is perhaps less Kantian than we have thought and problematic in new ways.

Reparations Part V consists of a single substantive contribution by Martin D. Carcieri (Chapter 13). Carcieri argues that Rawls can help us find a useful analysis of racial policy and justice. He offers two claims. His first claim is that Rawls's work cannot provide strong forms of affirmative action. Nevertheless, Rawls leads us to a surprising second claim: we can derive from his work strong forms oflegislative reparations.3

2

On reparations, see also Brooks (2008b).

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xvi

Global Justice and International Law Finally, Part VI considers essays that focus on Rawls's views on global justice and how they migbt be applied in internationallaw. 4 Rawls's general views are presented in bis The Law 01 Peoples (1999). Recall his domestic theory of justice. Rawls asks us to imagine that we are parties to an original position. From this position, the parties agree political principles and their ordering. Likewise, Rawls asks us now to conceive of ourselves as representatives of a people wbo are party to a global original position. We represent peoples rather than states because the former is a more ethical concept. States are defined in part by their borders, and these borders often lack ethical significance. The only boundary that has such significance is that which can include a people witb certain defining characteristics. The parties to this second original position are thought to agree eight principles of justice that will define the Law of Peoples, the global structure within which a Society of Peoples operates. These principles include the idea that peoples are free and independent, and should observe treaties and a duty ofnon-intervention (Rawls, 1999, p.37). Rawls's theory of global justice presented in The Law 01 Peoples has attracted more criticism than praise. This is evident in mucb work on the subject. John Tasioulas (Chapter 14) begins with Rawls's eigbt principles oftbe Law ofPeoples and proceeds to offer a belpful critical guide to the central issues in Rawls's view. Unfortunately, Tasioulas finds Rawls's work more 'a counsel of despair' ,albeit one that 'we need not acquiesce in' (p. 476). Likewise, Thomas W. Pogge (Chapter 15) shares dissatisfaction witb what he calls 'the incoherence' between Rawls's different theories ofjustice. 5 Pogge asks whether it would be more attractive to reform the global institutional order from the perspective of A Theory 01Justice instead of The Law 01 Peoples. He finds much more of interest - and more compelling arguments - in Rawls's earlier work than in his later work. Rawls's Society ofPeoples is not a realistic utopia and the best we can bope for: we can asp ire to much more. Nevertheless, there are more positive results that also may arise through the study of Rawls 's work. First, his view of global justice has real coherence. In Chapter 16 Leif Wenar argues tbat tbere are several good reasons why Rawls is not a cosmopolitan egalitarian. Nor is it a defect ofhis views that this is the case. This is not to say that Rawls's The Law 01Peoples is beyond criticism, but rather to say that sucb criticism must be found elsewbere. Regina Kreide (Chapter 17) considers the topic of humanitarian intervention. She finds useful inspiration from the work ofRawls and also from that of Jürgen Habermas. Together, they both help us Resh out a more compelling view. Kreide's essay represents an important eontribution to a topic - humanitarian intervention - that has reeeived a partieular inerease in seholarly attention in reeent years. Kreide elearly shows how Rawls's work may eontribute to future debates in fruitful ways. Finally, this book concludes with David Reidy (Chapter 18) on the topie of Rawls and human rights. Rawls's eoneeption ofhuman rights has eneountered mueh eritieism for being 'ultraminimalist' . Reidy argues that sueh critieisms fall short of the mark and that Rawls's idea of rights helps advance our understanding of human rigbts. Our debates, in his view, would do better to engage more elosely with Rawls's eoneeption.

2 2

On global justice more generally, see Brooks (2008a). For Pogge's views on global justice, see Brooks (2007).

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Conclusion

Rawls is the most important political philosopher of the last 100 years or more. No single volume can do justice to the great influence he has had on how we might think about jurisprudence and the law. I have brought together much ofthe pre-eminent leading work that shows how rich Rawls's influence has been and how fruitful his ideas are for thinking about so many areas of law. My great hope is that this volume will not only inform the reader of these important ideas, but will also inspire further work. There is so much more to be said. The future may weil be Rawlsian .

Acknowledgements

I must acknow ledge the support of the series editor, Tom Camp bell, for this project since its beginning. I am further grateful to Valerie Saunders for her help. My special thanks must go to my teachers Peter de Marneffe and LeifWenar for bringing Rawls's work to life. I have also benefited greatly from conversations on Rawls 's work with Fabian Freyenhagen and Martha Nussbaum .

References Brooks, Thom (2007), 'Puni shing States That Cause Global Poverty', William Mitehell Law Review, 32, pp. 519- 32. Brooks, Thom (ed.) (2008a), The Global Justiee Reader, Oxford: Blackwell. Brooks, Thom (2008b), ' A Two-Tiered Reparations Theory: A Reply to Wenar', Journal 0/ Soeial Philosophy, 39, pp. 666-69. Brooks, Thom and N ussbaum, Martha C. (forthcoming), Rawls s PolWeal Liberalism, New York: Columbia University Press. Freeman, Samuel (2007), Rawls, London: Routledge. Rawls, John (1971), A Theory 0/ Justiee , Cambridge, MA: Harvard University Press. Rawls, John (1996), Politieal Liberalism (paperback edn), New York: Columbia University Press. Rawls, John (1999), The Law 0/ Peoples, Cambridge, MA: Harvard University Press. Rawls, John (2001), Justiee as Fairness: ARestatement, ed. Erin Kelly, Cambridge, MA: Harvard University Press.

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Part I Constitutional Law

[1] Rawls on Constitutionalism and Constitutional Law FRANK I. MICHELMAN'

Constitutionalism - the idea of the subjection of even the highest political authority in a country to limits and requirements having the form and force of law - is a notion of normative political theory. Despite this notion's familiarity to us, theorists continue to puzzle over what, exactly, it means for it to be put into practice or how, exactly, its being put into practice may bear on the moral justifiability of political rulership. Our first general question in this chapter is about John Rawls's contributions to this branch of speculative inquiry. From a lawyer's standpoint, a "constitution" is an existent law or statute, the country's highest-ranking one, which no other legal enactment, opinion, or decision may contravene. What lawyers call constitutionallaw is a body of learning to be used in specifying the content of this highest-ranking law or statute and applying it to disputed cases. Here, too, we find a field of long-standing debate about how judges and other officials ought to approach their tasks of construing and applying basic-Iaw texts and precedents. The issues prove hard to resolve without getting into speculative questions concerning (a) the ends and reasons for which a country's basic law imposes limits and requirements on ordinary political rule, and (b) the events and conditions by and under which such legal impositions may legitimately be decided and come into force. We may think of judges, lawyers, and their academic kibitzers entering the debates using whatever circulating fund of relevant beliefs and assumptions, concepts and categories, reasonings and teachings may currently comprise the" discourse" of constitutionallaw. Of course, participants often aim to add to this fund or modify it. Our second general question in this chapter is about how, if at all, Rawls's work may have modified the dis course of constitutionallaw or may possibly yet do so.

4

Rawls and Law

Rawls on Constitutionalism and Constitutional Law

1.

395

RAWLS ON CONSTITUTIONALISM:

CONTRACTARIAN LEGITIMACY AND CONSTITUTIONAL ESSENTIALS

A. Political Liberalism as Constitutional

Contractarianism Rawls has sought to ascertain the conditions of the possibility of politicallegitimacy in modern, plural societies. He asks how it may be possible that "there [couldJ exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines"; or, in terms he interestingly considers equivalent, how "deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime."! Cast in terms of legitimacy, the question is how there can be a moral warrant for enforcement of laws made by majoritarian institutions against individual members of a population of presumptively free and equal persons - how "citizens [in a democracy may] by their vote properly exercise . . . coercive . .. power over one another."2 Rawls's ans wer lies in what he calls the liberal principle oi legit-

imacy:

Our .. . political power is . . . justifiable [to others as free and equalJ .. , when it is exercised in accordance with a constitution the essentials of which all citizens may be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.3

Rawls thus adopts what we may call a constitutional contractarian mode of political justification. We can distinguish three key components in such a justification as follows: RATIONAL UNIVERSALISM ("hypothetical contract"). Constitutional contractarianism begins in liberal individualism with the idea that exercises of political power surely are justified when every affected, competently reasoning individual can approve them as in line with his or her own actual balance of reasons and interests.

In modern states, it is beyond imagining that every discrete act of lawmaking could plausibly CONSTITUTIONAL ESSENTIALISM.

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be portrayed as passing such adernanding test. A hypotheticalcontractual standard of political justification can only be meant for application to constitutionallaws - a restricted set of laws that fundamentally shape, organize, and limit the country's lawmaking system. Constitutional contractarian political justification depends on the view that your finding the constitution acceptably in line with reasons that apply to you, considering your interests, commits you to acceptance of the daily run of lawmakings that issue properly from the constituted system, regardless of whether each and every one of them does or should elicit your agreement. 4 That is the point of Rawls's claim that exercises of political coercion are justifiable insofar as they accord with "a constitution, the essentials of which all citizens may be expected to endorse." Why "the essentials of which"? For starters, we can say because any practically workable constitution is bound, if only for crass political reasons, to contain arbitrary and even irrational matter that could not possibly be said to respond to reasons applicable to everyone in view of their interests. For example, the V.S. Constitution guarantees the "equal suffrage" of every state in the Senate regardless of population. We do not want every such eccentricity to disqualify the constituted regime from contractarian legitimacy as long as its "essential" parts do all satisfy the hypothetical contract test. (We come below, in Parts I(E) and I(f), to the hard question of how it is decided which parts are essential for such purposes. 5 ) But can there really be even an "essential" constitution that is universally rationally approvable in modern conditions of pluralism? Rawls's hope for this depends on a favorable motivational presupposition. 6 Political coercion is justified, Rawls says, when its exercise ac cords with a constitution whose essentials all may be expected to endorse in the light of principles and ideals acceptable to them not only "as rational" but also lias reasonable." The test is counterfactual, and much is packed into that hypothetical "as reasonable." It means I ought to support the regime and its acts if and only if (a) others generally comply with it, and (b) I can see how its essential parts comply with a set of political ideals and principles that merit mutual acceptance by a competently reasoning group of persons, all of whom suppose each other CIVILlTY.

5

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motivated to find and abide by fair terms of social cooperation in conditions of deep and enduring but reasonable disagreement over questions of the goodJ Rawls calls a citizen's forbearance from public policy proposals that she cannot sincerely defend in such terms both her "civility" and her submission to a constraint of "public reason."

B. Political Liberalism's Restricted Universe Thus a kind of constitutional contractarianism is Rawls's response to the question of the possibility of legitimate government in modern, plural societies. But the response could not have been what it is (it might weIl have been that there is no discoverable answer to the question) had Rawls not constructed it with a society of a certain kind already in view. No doubt apart of "political liberalism" (Rawlsian contractarianism) is its elaboration of a form of politics in which public, mutually acceptable principles of political jus ti ce displace contesting, particular interests and ethics as the framing considerations for public policy debates affecting society's basic structure. But this vision of a publicly reasonable constitutional politics would be blatantly utopian standing by itself. Rawls's philosophy therefore must draw its warrant for the substantial conceivability of a politics of this kind from more elementary considerations, and Rawls proposes no other source for these more elementary considerations than a certain highly general notion of democratic social life that he expects will already have a firm claim on his audience. The vision is "constructed" or "worked out," as Rawls says, from ideal elements - "fundamental ideas" - drawn from "the most deep-seated convictions and traditions of a modern democratic state."s In that way, Rawls's contractarian response to the problem of politicallegitimacy has been specifically shaped to societies already imagined as falling with a certain broad historical tradition of political sensibility.9 Rawls looks to democratic political culture, broadly viewed, for the makings of a basis for political agreement robust enough to support a democratic constitution even while allowing for the ingrained tendency of constitutional democracy itself to sustain a wide diversity of conflicting moral and religious doctrines.

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C. "lustice As Fairness " (the "Two Principles of lustice") as a Contentious Instance of Political Liberalism It by no means follows, as some have charged, that Rawls has done

nothing but echo back to his cirde what it already thinks. ' ° By his specific conception of justice "as fairness" (as represented by the famous two principles of justice in their lexical ordering), Rawls means to have produced one rational reconstruction of the constitutionaldemocratic tradition capable, if accepted, of resolving some chronic issues and disagreements internal to that tradition. I I The line of thought runs approximately as follows: (I) A political (as opposed to a sectarian or comprehensive philosophical) conception of justice for the basic structure of a democratic society is worked up from fundamental ideas that can reasonably be "seen as" having been drawn from the culture of such a society. (2) The particular political conception of justice as fairness has been constructed out of a particular set of such fundamental ideas extracted from the public culture of a democratic state. However, (3) there are, presumably, other defensible conceptions of constitutional-democratic justice, each of them perhaps corresponding to a somewhat different" take" on democratic society, a different set of starting-point fundamental ideas that lead to a different condusion about exactly what "political conception"what set of principles and ideals for appraising a set of constitutional essentials for a democratic society (on the order of the two principIes of justice as fairness) - a reasonable person would endorse. I2 If so, then (4) the failure of constitutional democracies thus far to resolve certain chronic issues of constitutional right and wrong may reflect a plurality of political conceptions, all of which are defensible, if competing, reconstructions of a more abstractly shared and general vision of a democratic society. ' 3 Thus, one valid reconstruction might start from a strictly "proceduralist" view of a democratic society as one whose members, respecting each other as free and equal, use no means other than persuasion to resolve disagreements over the basic terms of social cooperation. Such a reconstruction might end in a political conception resembling a Habermasian ideal speech situation. Rawls, by contrast, builds in from the start a substantive dimension of fairness. In his rendition, a democratic culture is one that is committed to basic terms of social cooperation that are fair, given that the co operation

7

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is among persons who reciprocally recognize each other as free and equallifetime associates. I 4 From that fundamental idea of social cooperation on fair terms, Rawls develops a "political" conception of persons - as endowed not only with certain moral powers but with corresponding higher-order interests in the exercise of those powersthat go far to explain their moral status of equality in regard to both the making and the content of decisions affecting the basic structure of society. Rawls maintains that reflection on the fundamental idea of society as a system of fair, lifetime cooperation among free and equal persons leads to the ascription of these powers and interests: [S)ince persons can be full participants in a fair system of social cooperation, we ascribe to them . . . two moral powers connected with .. . the idea of social cooperation ... : a capacity for a sense of justice and a capacity for a conception of the good. A sense of justice is the capacity to understand, to apply, and to act from the public conception of justice which characterizes the fair terms of social cooperation . ... The capacity for a conception of the good is the capacity to form, to revise, and rationally to pursue a conception of one's rational advantage or good. Persons are reasonable .. . when ... they are ready to [abide willingly by) principles and standards as fair terms of cooperation, given the assurance that others willlikewise do so .. .. The rational is . .. a distinct idea .. . and applies to [an agent) with the powers of judgment and deliberation in seeking ends and interests peculiarly its own. I 5

Finally, because "someone who has not developed and cannot exercise the moral powers to the minimum requisite degree cannot be a normally and fully cooperating member of society over a complete life," we ascribe to citizens the "two corresponding higher-order interests in developing and exercising these powers."I6 It is not, Rawls emphasizes, that we adopt this view of persons as a general scientific account of human vocation. It is rather that these attributions are already salient in the idea of everyone's "taking part in a fair system of social cooperation and seeking and presenting public justifications for their judgments on fundamental political questions" - which is the very notion of a democratic society that the principles of justice as fairness are meant, in asense, to elucidate. I7 Rawls develops the principles through a work-up of these features of the person into a situation of social choice of principles to govern the basic structure (the "original position") and through the ac count he

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gives of the choice that would ensue. The aim is to persuade us (in reflective equilibrium) that these starting points elaborated through this "procedure of construction" capture so well our own sense of the moral core of a democratic society that the resulting prescriptions for the chronic problems and disagreements of constitutional democracy are ones we should accept. In summary, in a Rawlsian political (as opposed to a sectarian or comprehensive philosophical) conception of justice, a set of values is developed from certain fundamental ideas "seen as" inherent in the culture of a democratic society and then transmitted through some form of elaboration or demonstration to a set of principles (a "political conception" or "conception of justice") to govern the basic structure of a democratic society in conditions of reasonable pluralism, including the main points of its constitution. 18 Built in virtually from the start are key values, which, having been drawn from the public culture of a democratic society, are expected to help recommend the principles to an overlapping moral consensus of the society's differing, reasonable comprehensive views in a wide and general reflective equilibrium. These, then, are "public" or "political" values for the political conception in question, admissible to the public reasoning and argument (over matters of constitutional interpretation or amendment, for example) of all citizens who sincerely hold this conception. 19 Because the starting point fundamental ideas will differ somewhat from one political conception to another, the set of political values will not be exactly the same for every political conception of justice encompassed by politicalliberalism. In the political conception Rawls defends, justice as fairness, the political values include the fulfillment of the social preconditions to the adequate and full development and exercise by every person of the two moral powers, of the reasonable and the rational, that are presupposed by the very idea - which Rawls equates with that of a democratic society - of lifetime social co operation on fair terms among human moral equals each with a life to live. 2 0 D. The Categories of Rawlsian Constitutional Analysis

We have mentioned the Rawlsian idea of constitutional essentials but so far have only scratched the surface of it. Before delving deeper, we will need to have before us the fun array of Rawlsian constitutional-argumentative categories.

9

I-
22 Thus, Rawls seeks to raise his theory to the realm of political culture rather than remain within the more common social cuIture. This way of looking at comprehensive doctrines might see m to render them wholly irrelevant to the core of political liberalism, for the principles and content of Rawls's political theory of justice are elaborated entirely independent of such doctrines. That, of course, accounts for the uniqueness of Rawls's political liberalism, for past theories of justice were wedded, in one way or another, to comprehensive doctrines as their material source. Yet this is a mistaken assessment of the role of comprehensive doctrines in Rawls's thought. In fact, there is an intimate and necessary relationship between comprehensive doctrines and Rawls's theory of politicalliberalism. If there were no comprehensive doctrines at all, which is difficult even to imagine, political Iiberalism would be supertluous, even meaningless. We must remember that political Iiberalism owes its very origin in great part to the plurality of incompatible 19. See id. at 4 n.4 ("A comprehensive doctrine ... is distinct from a political conception of justice, since it applies to all subjects and its virtues cover all parts of life." (ernphasis added» . Rawls makes an irnportant qualification to this characterization by noting that some comprehensive doctrines are incompletely or "partially cornprehensive." ld. at 175. Rawls also supposes that "the comprehensive doctrines of most people are not fully comprehensive, and this allows scope for the developrnent of an independent allegiance to the political conception that helps to bring about a consensus." ld. at 168. 20. ld. at xlii. 21. ld. at 14 (internal quotations omitted). 22 ld.

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comprehensive doctrines and the absence of any moral authority to pronounce one of them as true. 23 Moreover, there is the great practical necessity of achieving the sought after "overlapping consensus" on Rawls's freestanding conception of justice. Without comprehensive doctrines, that consensus would have no place or perspective from which to emerge; there would be no overlapping consensus necessary, for by hypothesis, no differences in values and beliefs would exist. But if there are no comprehensive doctrines, this would contradict the obvious fact of pluralism on matters religious, moral, and philosophical, which was the original motivation for Rawls's attempt to transform his theory of justice into a freestanding conception. It is therefore necessary to keep in mi nd that for Rawls, the choiee of the freestanding political conception is made from so me content-rieh perspective, which is the perspective of individuals and groups divided by their commitment to comprehensive doctrines.24 Rawls did not make explicit use of the idea of a comprehensive doctrine until we11 after Theory was published.25 Key essays in the 1980s touched on the "serious problem" with Theory that Rawls ca me to acknowledge and which Political Liberalism was meant to resolve. 26 Wh at was this "serious problem" that Rawls saw in his earlier and justly famous work on justice? The short answer is that Rawls came to see Theory as being attached to a comprehensive doctrine, one among many such doctrines. This brought into question the "stability" of justice as fairness, which I sha11 attempt to explain. Anyone familiar with Theory may be puzzled by the idea that it could be thought of as dependent upon a comprehensive doctrine, i.e., a doctrine that could not be shared by a11 because many persons are actua11y committed to competing and incompatible comprehensive doctrines. After all, Theory seemed to be freestanding in many important respects. Its device of the "original position"27 enabled those occupying that hypothetical stance to deli berate about the principles of justice free of their biases of c1ass, gender, race, religion, and the like. The original position device made vivid to them (and to us) the stringent demands of justice, which merited the designation of "justice as fairness" because it put those deliberators (you and me) behind a "veil of ignorance" that shielded us from awareness of our 23. Id. at 97 ("[G]iven the fact of reasonable pluralism, citizens cannot agree on any moral authority ... ."). 24. See, e.g. , id. at 168-69. 25. That the idea of comprehensive doctrines was, in important respects, at least implicit in Theory can be seen within the central concepts of justice as fairness and the original position, the laUer being a device to eliminate knowledge of persons' comprehensive commitments so that they may not be drawn upon when making the choice of principles of justice. 26. See Rawls, Political Liberalism, supra note 7, at xvii-xix. For Rawls's discussion of his work leading up to Po/itical Liberalism, see id. at xv-xx. 27. See Rawls, A Theory of Justice, supra note 4, §§ 20-30, at 102-05.

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particular commitments of a philosophical, moral, or religious nature-precisely the kind of commitments that result from adherence to comprehensive doctrines. Moreover, the original position forced us to choose far everyone, as there was no way in which we could tailor the principles of justice to accommodate our own proclivities and biases.211 In what sense, then, was Theory itself a comprehensive doctrine among many others? In Part III of Theory Rawls raised the question of the stability of justice as fairness. By the term "stability" Rawls was referring to the capacity of his theory to win support and remain stable over time, which is certainly an important consideration. For no matter how elegant a theory ofjustice may be, if it is not congruent with stability it is bound to be defective,z9 The "serious problem"30 that Rawls later saw in his account of stability in Theory concerned his linking justice as fairness to a comprehensive doctrine that embraced a number of values on the basis of which all citizens (or so he then thought) could endorse his conception of justice and live their lives in commitment to it. Based on those values, all citizens would see justice as fairness as constituting a well-ordered society.31 But, as Rawls came to realize, [tJhe faCl of a plurality of reasonable but incompatible comprehensive doclrines-the fact of reasonable pluralism-shows that, as used in Theory, the idea of a well-ordered society of justice as fairness is unrealislic. This is because it is inconsistent with realizing its own principles under the best of foreseeable conditions. 32 Wh at were the values that constituted the comprehensive doctrine in which Theory was embedded? Many of the topics in Part III of Theory could be cited as constitutive elements of the comprehensive doctrine that was inimical to the achievement of the political conception of justice that he proposed in Political Liberalism. For example, bis account of stability itself invoked the work of J.S. MilI;33 the account of moral autonomy was laced with Kantian themes,34 as was bis discussion of the concept of human sociality and social union. 35 The presence of these and other characteristics in Rawls's account of the stability of justice as fairness therefore constituted a dependence on a comprehensive doctrine that not aII persons could be expected to share. For example, his account of moral autonomy will likely be 28. Id. 29. ld. § 2, at 6.

30. See Rawls, Political Liberalism, supra note 7, at xviii.

31. Id. 32. ld. at xix.

33. Rawls, A Theory of Justice, supra note 4, § 76, at 439-40.

34. ld. § 44, at 251-58. 35. ld. § 79, at 459 n.4.

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unacceptable to those persons who are committed to a comprehensive religious or moral doctrine that rejects moral autonomy as a value. 36 But one should not draw from this the conclusion that Rawls's substantive theory of justice has undergone dramatic changes in PoLitical Liberalism. Removing the inconsistency in his account of stability in Theory still allowed hirn to "take the structure and content of Theory to remain substantially the same."37 Thus, while it is certainly true that Rawls's critique of comprehensive doctrines entailed a major change in his thought, the core of his theory remained intact. One might simply say that the form of his theory changed whereas the substance did not. B. Comprehensive Doctrines in Contemporary Controversies The "serious problem" that Rawls saw in Theory has analogues in several contemporary controversies. A very brief sketch of them will further illustrate the significance and extent of Rawls's distinction between comprehensive doctrines and a political conception of justice. 1. The Ten Commandments Controversy

The recent controversy over the presence of a display of the Ten Commandments in the Alabama Supreme Court implicates at least a partially comprehensive religious doctrine at the heart of the matter. 38 The cent ra I question is whether the state of Alabama, in allowing the Ten Commandments to be displayed in a public place, violates the Establishment Clause39 by giving tacit approval and recognition to a conventional religious symbol that figures in one or another comprehensive religious doctrine. In the language of constitutional law, does the state thereby violate the "wall of separation" between church and state?40 I have no intention to try to answer that question here. But I do want to suggest that a freestanding conception of justice in Rawls's sense may weil preclude allowing the display of the Ten Commandments in public pI aces, such as the Alabama Supreme Court. The argument for exclusion would be based on the principle that any religious content that is allowed to figure in the public 36. See Rawls, Political Liberalism, supra note 7, at xlv ("Many citizens of faith reject moral autonomy as part of their way of life.") . 37. Rawls, Political Liberalism, supra note 7, at xviii. 38. See Alabama lustices Order Ten Commandments Removed, N.Y. Times, Aug. 21, 2003, at Al; see also Jeffrey Gettleman , He'd Do 11 Again, Says Ihe 'Ten Commandments Judge, ' N.Y. Times, Nov. 13,2003, at A18. 39. U.S. Const. amend. I. 40. For a critical appraisal of the historical basis of the separation of church and state, see, fOT example, Philip Hamburger, Separation of Church and State 38 (2002) (arguing that the separation of church and state doctrine in constitutional law does not have historical roots in the First Amendment).

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commitments of the state necessarily implicates the elements of a comprehensive doctrine that is unacceptable to many people who do not believe in the Ten Commandments for whatever reason. A commitment by the state to a comprehensive doctrine constitutes an impediment to securing an overlapping consensus on a political conception of justice from adherents to comprehensive doctrines in which the Ten Commandments simply have no place. 4 \ 2. The Gay-Rights Controversy A se co nd example of a comprehensive doctrine entering the public sphere of justice concerns the dispute over granting equal rights to homosexuals, including the right to marry. Part II discusses the merits of a proposed constitutional amendment to define marriage as a union of a man and a woman , which would wholly preclude the right to same-sex marriage. This section, however, pursues more limited aims by very briefly commenting on arecent Vatican document opposing same-sex rights42 and then discussing Justice Antonin Scalia's dissenting opinion in the Supreme Court's gay rights decision, Lawrence v. Texas. 43 The Vatican's statement in the Considerations document is a paradigmatic example of a comprehensive doctrine. Its opposition to same-sex unions is firmly based on multiple sources, including a theory of natural law, divine revelation, and church teachings and encyclicals on the nature of Christian marriage. Although addressed to the public, it argues from within the framework of Catholic moral and social doctrine. It claims to express the natural moral truth about marriage in its opposition to the approval or legalization of same-sex unions. Rawls's concyption of political justice would not question the truth claims of the Vatican's position, for Rawls's concern is to formulate a politically freestanding theory on wh ich all reasonable comprehensive doctrines can agree from the perspective of their own . doctrines. 44 41. A similar question is posed by the words "under God" in the Pledge of Allegiance, a question whicb the Supreme Court will address in a case to be argued in the 2003 term. See Linda Greenhouse, Supreme Court to Consider Case on 'Under God' in Pledge to Flag, N.Y. Times, Oet. 15, 2003, at Al. A eomprehensive doctrine was likewise at issue in arecent Italian court decision that ordered crucifixes removed from a public schoo!. See Associated Press, Vatican Rebukes Judge for Ban on CruciflXes, N.Y. Times, Ocl. 28, 2003, at A14. 42 See Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, June 3, 2003, at hup://www.vatican.va/roman_curialcongregations/cfaith/ documentslrc_con_cfaith_doc_20030731_homosexual-unionLen.html [hereinafter Considerations ]. 43. 123 S. Cl. 2472, 2488 (2003) (striking a Texas law banning sodomy as unconstitutional as applied and, further, overruling Bowers v. Hardwick). 44. See Rawls, Political Liberalism, supra note 7, at 94.

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Given the inflexible positIOn enunciated in the Vatican's Considerations document, it may be difficult for the Church to support a political conception of justice like Rawls's, at least if that conception endorses same-sex relations as a matter of freestanding political principle. It may be that, when faced with the pluralism of comprehensive doctrines in the contemporary world, the Church prefers to press its claim to possessing the truth without engaging in the search for an overlapping consensus with the many other comprehensive doctrines on a political conception of justice. One of the most striking things about Justice Scalia's dissenting opinion in Lawrence is his defense of the precedent that the Lawrence majority overruled, Bowers v. Hardwick. 45 In defending Bowers, Scalia appeared wholly supportive of that decision's holding that the prevailing morality of the Georgia electorate had been a sufficient basis to justify making sodomy a criminal offense. 46 From a Rawlsian point of view, one might initially think that Scalia simply invoked an ingredient of the public political values that are central to political liberalism. 47 But the morality invoked in Bowers and defended by Scalia in dissent in Lawrence is a bare-bones datum that is presented without reference to supporting public reasons. Moreover, that morality is deeply contested throughout the nation, much more so now than at the time Bowers was decided. Justice White, who wrote for the Court in Bowers, noted that in 1961 every state had criminal sanctions against homosexual conduct. 48 Yet when Bowers was handed down in 1986, only twenty-four states had anti-homosexual laws in effect. 49 Justice White did not address the significance of that shift in American morality regarding same-sex conduct. By 2003, however, when Lawrence was decided, the number of states banning sodomy had dwindled to thirteen. Thus, between 1961 and 2003, thirty-seven states had, either through judicial decisions or legislative repeals, abandoned their anti-homosexual laws. That would seem to constitute significant evidence relevant to the claim that the morality opposing same-sex relations had been reduced to a distinct minority view in America. Justice Scalia's dissent takes no account of this dramatic change. Yet even without that massive shift in moral sentiment, there still remains the crucial point that moral opposition to homosexuality is, at aminimum, entangled with a (partially) comprehensive doctrine. Such a doctrine entails comprehensive values on the nature, purpose, 45. 478 U.S. 186 (1986), overruled by Lawrence, 123 S. Cl. at 2472 (validating a Georgia anti-sodomy law substantially similar to that struck down in Lawrence). 46. See Lawrence, 123 S. CI. at 2490 (Scalia, J., dissenting); Bowers, 478 U.S. at 196. 47. See, e.g.,Rawls, Political Liberalism, supra note 7,at 236 n.23. 48. Bowers, 478 U.S. at 193. 49. Id. at 193-94.

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and value of sexuality, marriage, procreation, and the family. Because those values are framed and linked together in support of heterosexuality, the resulting comprehensive doctrine entails negative values with respect to same-sex acts, relationships, and homosexual marriage. Whether true or false, a comprehensive doctrine like that is arguably excluded from the domain of the political, which requires public reasons for curtailing liberties. C. Comprehensive Doctrines and Human Rights

Rawls 's distinction between comprehensive doctrines and a freestanding conception of political justice was in significant respects implicit in the work that preceded and eventually culminated in the U.N. Universal Declaration ofHuman Rights. The process that led to the Declaration suggests that the drafters of that document attempted to avoid reliance on comprehensive doctrines. Indeed, one major U.N. contributor to the theoretical bases of human rights, Jacques Maritain, who, as an independent philosoph er, wrote extensivelyon natural law, nevertheless emphasized the importance of putting philosophy and tbeory aside in the U.N.'s joint effort to achieve a statement on human rights that had universal appeal to the member states of the U.N. In late 1948 the Uni ted Nations General Assembly, meeting in Paris, voted to adopt the Universal Declaration of Human Rights. It was a monumental achievement that gave birth to the human rights era. Tbe DecIaration had been drafted and re-drafted over a two-year period by the U.N. Human Rights Commission. Chaired by Eleanor Roosevelt, the Commission was composed of a distinguished group of internationally recognized scholars and diplomats from various parts At numerous junctures in their debates and of the world. deliberations, questions arose concerning the foundations of human rights. One persistent question was whether such rights could be said to be universal in scope. If they were universal, that raised the further question of whether and how the content of human rights could vary from culture to culture and from religion to religion throughout the world. In short, were there some things that were universally wrong to do to persons, no matter the culture or religion that was dominant in a particular country? And were there some things that were universally required of nations and peoples to do or provide for all persons, no matter a country's culture, religion, or dominant philosophy? What follows is a brief review of the nature of the background assumptions informing the Commission's deliberations and debates leading up to the final adoption by the U.N. General Assembly of the Universal Declaration of Human Rights. 50 My primary concern is 50. For the account of the deliberations of the Human Rights Commission, see

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with how the members of the Human Rights Commission avoided, or attempted to avoid, cultural and religious bias to achieve the c1aimed universality of the Declaration. In Rawls's terminology, were they trying to avoid reliance on particular comprehensive doctrines? The V.N. approach to articulating a list of universal human rights relied on a committee of no more than a dozen or so U.N. delegates. Often the drafting and re-drafting of what came to be ca lied the Universal Declaration was done by three or four of those delegates, with Eleanor Roosevelt serving as chair without participating herself in the actual drafting and editing, yet performing the indispensable functions of gatekeeper and critic, offering moral and intellectual support as weil as challenges and inspiration to the Commission's ongoing work. We might call this the "committee approach" to defining human rights, an approach that certainly has its advantages within the U.N. context of respect for global diversity. Given the make-up of the United Nations, it was virtually inevitable that a comrnittee composed of members from diverse cultural and religious traditions would draft the Universal Declaration in order to guarantee, as much as possible, a sense of balance, fairness and universal representation when the Declaration was presented to the General Assembly in Paris. 51 The Commission's concern for fairness in identifying and articulating universal human rights was certainly essential and crucial to their work being acceptable to the members of the U.N. General Assembly. The fact that the General Assembly ultimately voted to endorse the Universal Declaration without a single dissenting vote is so me evidence that the Declaration was perceived as fair to all without favoring a particular culture, philosophy, or religion. In that sense, the Declaration was, at least in principle, "freestanding ," independent of particular comprehensive doctrines. To the extent that it was independent of moral, philosophical, and religious foundations , the Commission's achievement invites comparison with Rawls's conceptions of justice as fairness and political liberalism. Indeed , it is quite possible that Rawls's work could have provided a better rationale and a more secure justification for human rights than what was achieved with the Comrnission's "committee approach." Had Theory or The Law o[ Peoples52 been available decades earlier, Rawls might very weil have been invited to join the U.N.'s Education, Social, and Cultural Organization ("UNESCO") advisory committee Mary Ann Glendon, A World Made New: Eleanor Roosevelt and The Universal Declaration of Human Rights (2001). 51. Whether the make-up of the Commission was sufficiently representative of world cultures is a question beyond the scope of Ihis Article. 52. It is in The Law 01 Peoples, supra note 11, that Rawls applies his notion of "justice as fairness" to questions of human rights. This, 100, is beyond the scope of this Article.

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of experts on the theoretical bases of human rights. There is, however, a certain paradox contained in that suggestion, as explained below. As no ted earlier, one of the main endeavors of the Commission was to put philosophy aside on the assumption that no one philosophy would or could be acceptable to all members of the V.N. General Assembly (nor, for that matter, to the dozen or so delegates who made up the body of the Human Rights Commission). To turn to Rawls, an eminent American philosopher, and to rely on his theory of justice as fairness , had it been available in 1948, would likely have been quite eontrary to the spirit of the Commission's thinking. But the paradox is removed if Rawls's attempt to "demoeratize" philosophy is sueeessful, that is, if his theory of justiee is independent of any partieular eomprehensive doctrine, such as we find in partieular religions-Judaism, Catholicism, or Islam, for example-or in various philosophies, such as those of Aristotle, Kant, or Marx. Each of these religions and philosophies conflicts with one another in many ways (although, of course, they may have many shared values). But because they are comprehensive doctrines in competition with others, they are, as a consequence, unacceptable from the standpoint of universality, which is preeisely what the Human Rights Commission endeavored to achieve. Here I will focus on the difficult problems of universality and its apparent anti thesis, cultural and philosophieal relativism, which the Commission members confronted time and again. The V .N. Charter had mentioned human rights several times in its Preamble and in several of the Charter's Articles, but it did not state wh at they were, much less give an account of their actual or virtual universality throughout the world. That would be the task of the V.N. Human Rights Commission. To complete this task, the Commission had to eonfront head-on a formidable cha 11 enge , which Glendon describes as folIows: Was it really possible for a fledgling organization to produce a document acceptable to delegates from all the countries in a constantly expanding United Nations? Ey 1948, when the Declaration was put to a vote, the United Nations had fifty-eight member states containing four-fifths of the world's populationtwenty-two from the Americas, sixteen from Europe, five from Asia, eight from the Near and Middle East, four from Africa, and three from Oceania. Could any values be said to be common to all of them? What did it mean 10 speak of certain rights as universal?53

Thus the V.N.'s immaturity and cultural breadth seemed likely to stymie any proposed resolution which purported to define human values. 53. Glendon, supra nole 50, alSO (citalion omiued).

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As Glendon notes, the UNESCO organization foresaw these very questions arising and accordingly sought advice from a number of distinguished philosophers, including French philosopher Jacques Maritain, the American philosopher Richard McKeon of the University of Chicago, and Cambridge University political historian E.H. Carr, who chaired the panel that was known as the Committee on the Theoretical Bases of Human Rights. "The philosophers' group began its work in March [of 1947] by sending a questionnaire to statesmen and scholars around the world-including such notables as Mohandas Gandhi, Pierre Teilhard de Chardin, Benedetto Croce, Aldous Huxley, and Salvador de Madariaga-soliciting their views on The the idea of a universal declaration of human rights. " 54 Commiuee's report was later published, along with the questionnaire and many of the responses. ss Maritain contributed to this volume and also wrote its introduction,S6 in which he expressed a fairly hopeful outlook for human rights universality. Here it should be pointed out that Maritain hirnself was a highly respected Thomist philosoph er (an exponent of the thought of the thirteenth century philosopher and theologian St. Thomas Aquinas) and a noted defender of the theory of natural law. In his role as an independent philosopher, Maritain would surely have explained the origin and justification of human rights from within the natural law tradition. S7 However, in his UNESCO essay, he recognized that that tradition was not acceptable to all "men who come from the four corners of the globe and who not only belong to different cultures and civilisations, but are of antagonistic spiritual associations and schools of thought."S8 He emphasized that the goal of the UNESCO philosophers and thinkers was to achieve an agreement, not on the basis of a shared philosophy, wh ich was wholly unrealistic, but on the basis of shared practical goals. While it was unrealistic to expect agreement on "the same conception of the world, of man and of knowledge," it was possible, he thought, to achieve consensus on "the affirmation of a single body of beliefs for guidance in action."S9 Maritain's explanation of how this agreement on a "single body of beliefs" could be achieved seemed to require the abandonment, or at least the putting aside and bracketing, of philosophical positions and analysis. For Maritain, philosophy, at least in this context, needed to 54. Id. at 5l. 55. Human Rights: Comments and Interpretations (UNESCO ed., 1949) [hereinafter Human Rights]. This source was a symposium edited by UNESCO with an Introduction by Jacques Maritain. 56. Id. at 9. Human Rights contains thirty-two responses to the UNESCO questionnaire; others were received but not published. 57. See, e.g. , Jacques Maritain, Man and the State (1951). 58. Jacques Maritain, lmroduclion to Human Rights, supra note 55, at 10. 59. Id.

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turn away from speculation and first principles in order to focus on the practical issue of deciding what members of diverse cultures and belief systems could reasonably affirm in light of "the lessons of experience and history."60 Again and again, Maritain emphasized that questions of truth must be put aside in favor of " practical convictions" and common "principles of actions.,,61 When human rights are our concern, the approach must be "pragmatic" rather than theoretical. Despite their differences, those committed to diverse philosophies and systems of thought can nevertheless achieve a "convergence in practice" in the enumeration of human rights.62 Maritain's explanation for this "convergence" postulates that ethical concepts precede and govern systems of moral philosophy, such systems being the product of sustained reflection. Indeed, Maritain asserts: [T]here is a kind of plant-Iike formation and growth of moral knowledge and moral feeling, in itself independent of philosophie systems and the rational justifications they propound, [so that] while all these systems quarrelover the why and wherefore, yet in their practical conc1usions they prescribe rules of behavior which are in the main and for all practical purposes identical for a given age and culture .. . .63

While Maritain's commitment to put philosophy aside was quite defensible in the context of defining human rights, it would seem, however, that this focus on the conditions of universal agreement is itself a most important philosophieal task, perhaps one of the most exalted tasks of political philosophy. That task is to recognize the Iirnitations of one's own philosophical perspective; to take into consideration the contrary perspectives of those who embrace different philosophical principles and values; to realize that one's "truth" and the other's "truth" are not likely to be reconciled; and then, most importantly, to work together with those "others" to achieve a common ground, a eore of agreement-based on that "plant-Iike formation and growth of moral knowledge"-on what is needed, in Rawls 's terminology, for achieving an "overlapping consensus"64 on justice in national and international contexts. 60. Id. at 14. I emphasize "reasonably" in order 10 suggest a comparison with Rawls's own emphasis on the "reasonable" in his discussion of politicalliberalism. See Rawls, Political Liberalism, supra note 7, at 48-54. 61. Again, the comparison with Rawls is apropos. See Rawls, Political Liberalism, supra note 7, al 94 (arguing that truth is not the aim of political liberalism in the context of a plurality of comprehensive doctrines). 62. Maritain, supra note 58, at 11-12. 63. Id. at 12. Maritain's position here is similar in some respects to Rawls's discussion of the moral sentiments in Theory , supra note 4, § 73, at 420, as weil as to his notion oE "refl ective equilibrium," id. § 9, at 40. 64. For the concept of an "overlapping consensus," see Rawls, Political Liberalism, supra note 7, at 133.

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As the foregoing discussion suggests, there are important similarities and paralleIs between the work of the U .N. Committee on the Theoretical Bases of Human Rights and Rawls's theoretical approach to rights within a politically liberal society. First and fore most, both the Committee and Rawls endeavored to avoid reliance on a comprehensive doctrine. Second, and relatedly, neither the Committee nor Rawls started with some putatively indubitable foundational truth from which rights might be derived; in this way, both Rawls and the Committee appear to adopt an antifoundationalist standpoint inasmuch as any particular foundation they might adopt would inevitably be controversial. Third, Rawls and the Committee eschewed deep and abstruse philosophy, in great part because both wished to achieve the greatest degree of agreement. For Rawls, that agreement concerned the political conception of justice; for the Committee, it was the Universal Declaration of Human Rights. Fourth, while both concentrated on theoretical considerations, their theorizing was geared toward achieving practical agreement within a context of a pluralism of belief in mauers of philosophy, religion, and morality. If examined at greater length, the parallel achievements of Rawls and the Committee would reveal several important differences. 65 Nonetheless there are many ways in which their separate paths displayed common concerns: to avoid reliance on comprehensive doctrines and robust understandings of naturallaw or natural rights in order to define a defensible understanding of rights, whether human or national. We must eventually determine how this relates to the amendment power provided by the U.S. Constitution, which I will touch on in one of the scenarios discussed in Part IV. II. RA WLS ON UNCONSTITUTIONAL AMENDMENTS In his discussion of the role of the Supreme Court as the exemplar of public reason,66 Rawls argues that there are limits to what can be a valid amendment to the Constitution. For Rawls, this is so even when the procedures that the Constitution provides for amendment are fully and correctly followed. Although his view on this issue may not be representative of the consensus among American constitutional lawyers and scholars, there are some who, like Rawls, have taken the position that there are at least implicit substantive limits on the power

65. To c1arify, the above account of the similarities between the work of the Human Rights Commission and Rawls's work on justice obviously ignores many details in both the Commission's Universal Dedaration and Rawls's mature work on human rights in The Law 0/ Peoples, supra note 11, details that would reveal significant differences in their respeclive results. My foeus is on certain common approach es 10 rights in their respective works. 66. Rawls, Political Liberalism, supra note 7, at 231.

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to amend the Constitution.67 What is meant by "substantive limits"? For the moment, suffice it to say that it refers to constraints on changes to the content of the Constitution; constraints arising from existing core freedoms set forth in that document, especially in the Bill of Rights or those imposed by long-standing traditions; or constraints resulting from a principled understanding of the purposes and aims of the Constitution and the amending power set forth therein. But first we should note what the Constitution says in regard to this issue. Article V of tbe Constitution lays down the required procedures for amendment. It provides: The Congress, whenever two thirds of both Houses shall deern it necessary, shall propose Arnendrnents to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention tor proposing Amendments, which, in either Case, shall be valid to all [ntents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Arnendrnent which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its consent, shall be deprived of its equal Suffrage in the Senate. 68

One notable feature of Article V is tbe exceptions it sets forth to the amendment power. Specifically, Article V forbade an amendment that would stop the African slave trade prior to 1808. Further, but without time limitations, Article V disallows an amendment depriving astate, without its consent, of its equal representation in the Senate. The Framers made just these two exceptions-one temporary and one permanent exception-to the amendment power conferred upon the people, the states, and the Congress. One could certainly argue, with due allowance made for those exceptions, that Article V therefore permits any amendment to tbe Constitution that is secured by means of following the procedures of ArticIe V.69 By its terms, at least, 67. See, e.g., Walter F. Murphy, Merlin's Memory: The Past and Future lmperfect of the Once and Future Polity, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 163 (Sanford Levinson ed., 1995). For an extensive and insightful review of the essays collected in Responding to lmperfection, see Frank I. Michelman, Thirteen Easy Pieces, 93 Mich. L. Rev. 1297 (1995). 68. U.S. Const. art. V. 69. Some theorists maintain that Artic1e V is the exclusive means for amending the Constitution. See, e.g., David R. Dow, The Plain Meaning of Article V, in Responding 10 Impcrfection: The Theory and Practice of Constitutional Amendment 117 (Sanford Levinson ed., 1995). Other theorists, such as Bruce Ackerman and Akhil Reed Amar, go further and argue that amendments outside Article V's

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ArticIe V itself does not precIude any substance from forming part of an amendment. AIthough this is very probably the canonical understanding of ArticIe V for most American lawyers,70 it is not at all Rawls's position. What, then, explains Rawls's opposition to the nearabsolute freedom of the amendment power, which ArticIe V, having enumerated and entrenched two exceptions to that power, would appear to allow? Consider the kind of hypothetical amendments that raise this issue for Rawls. He questions "whether an amendment to repeal the First Amendment, say, and to make a particular religion the state religion with all the consequences of that, or to repeal the Fourteenth Amendment with its equal protection of the laws, must be accepted by the Court as a valid amendment."71 What reasons, Rawls asks, might the Court have for holding such amendments invalid, even when they are the product of careful and complete adherence to the stringent supermajority procedures set forth in ArticIe V? The principal reason that Rawls gives is the nature and purposes of amendments, which he characterizes in terms of the actual amendments that have been made apart of our Constitution. These purposes, he says, incIude adjusting and broadening constitutional va lues and removing weaknesses and defects of the original document. Rawls's fuller explanation is worth citing: Consider the following reasons: an amendment is not merely a change. One idea of an amendment is to adjust basic constitutional values to chan ging political and social circumstances, or to incorporate into the constitution a broader and more inclusive understanding of those values. The three amendments related to the Civil War all do this, as does the Nineteenth Amendment granting women the vote; and the Equal Rights Amendment attempted the same. At the Founding there was the blatant contradiction between the idea of equality in the Declaration of Independence and the Constitution and chattel slavery of a subjugated race; there were also property qualifications for voting and women were denied the suffrage altogether. Historically those amendments brought the Constitution more in line with its original promise. Another idea of amendment is to adapt basic institutions in order to remove weaknesses that co me to light in subsequent constitutional practice. Thus, with the exception of the Eighteenth, the other amendments concern either the institutional design of provisions either have occurred or are possible. See Bruce Ackerman, We the People: Foundations (1991); Akhil Reed Amar, The Consent 0/ (he Govemed: Constitutional Amendment Outside Article V , 94 Colum. L. Rev. 457 (1994). This lalter kind of amendment is for the most part beyond the scope of this Article. 70. See, e.g., Bruce Ackerman, We The People: Transformations 92 (1998). 71. Rawls, Political Liberalism, supra note 7, at 238. Rawls here refers 10 Ackerman, supra note 69, at 319-22, where Ackerman suggests that Ihe Court must look upon the amendment under discussion as valid. See Political Liberalism, supra note 7, at 238 n.25.

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government, witness the Twenty-second, which allows the president to serve only two terms; or certain basic matters of policy, witness the Sixteenth, which grants Congress the {>ower to levy income taxes. Such has been the role of amendments.12

This account of the past role of amendments is surely persuasive. Of course, it may not be applicable to recent amendment proposals or to the basis of future amendments in circumstances we cannot now imagine. But putting aside questions pertaining to the future until later, consider how Rawls's views might apply to recent and controversial amendment proposals, some of which may go beyond the limited purposes Rawls lists far valid amendments. It should be noted that none of these amendments has been adopted and may never be adopted, but they indicate the kind of amendments that are frequently proposed in the Congress and therefore present test cases for the criteria Rawls defends for acceptable amendments. ARecent and Current Proposals [or Amendments 1. The Flag Amendment

In the wake of Supreme Court decisions that struck down laws designed to prohibit the burning of the American f1ag,73 amendments were so on introduced in Congress to give tbe States and Congress tbe authority to ban the physical desecration of the f1ag. 74 One significant argument against the constitutionality of the f1ag-burning amendment was based on the contention that First Amendment free speech rights are natural rights retained by the people, and that repeal of the First Amendment would therefore have been unenforceable and unconstitutional. 75 From Rawls's perspective, however, such an argument would likely depeod upon and derive from a comprehensive doctrine because of the argument's reliance on natural rights; in that way the argument would therefore exceed the boundaries of a political theory of justice and likely be perceived as unacceptable from tbe perspective of politicalliberalism. While tbat is an argument we can understand from withio the scope of Rawls's mature work, it does 72. Rawls, Political Liberalism, supra note 7, at 238-39 (citations omiued). 73. See United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989). 74. For relevant commentary, see, for example, John R. Vile, The Case Against Implicit Limits on the Constitutional Amending Process, in Responding to Imperfection : The Theory and Practice of Constitutional Amendment 191, 202-13 (Sanford Levinson ed., 1995); Murray Dry, Flag Burning and the Constitution, 1990 Sup. CL Rev. 69; Robert J. Goldstein, The Great1989·1990 Flag Flap: An Historieal, Political, and Legal Analysis, 45 U. Miami L. Rev. 19 (1990); Mark Tushnet, The FlagBurning Episode: An Essay on the Constitution, 61 U. Colo. L. Rev. 39 (1990). 75. See Jeff Rosen, Was the Flag Burning Amendment Unconstitutional?, 100 Yale L.J. 1073 (1991) (arguing that the flag-burning amendment was unconstitutional because it violated natural rights retained by the people).

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not necessarily endorse the constitutionality of a flag amendment, for such an amendment arguably abridges First Amendment free speech rights. Rather than looking upon First Amendment free speech rights as natural rights, which rest upon a comprehensive doctrine, a political conception of free speech might interpret flag desecration as a form of protected symbolic expression, which is the position taken by the Court in Texas v. Johnson. 76 Rawls would likely oppose a flag-burning amendment on that ground. But would the Court be justified in invalidating a flag amendment that removes flag desecration from the purview of First Amendment free speech rights, when that is the will of a supermajority of the Congress and the States? 2. The Marriage Amendment Another example of current controversial amendments concerns proposals in recent years to amend the Constitution so as to define marriage as a union of two persons of the opposite sex.77 After the Court's recent decision in Lawrence v. Texas,18 more advocacy for a "marriage amendment" is inevitable in light of fears that the Lawrence case has paved the way for the so-called next step in "the homosexual agenda,"79 wh ich is same-sex marriage. Those fears were arguably validated in the more recent decision of the Massachusetts Supreme ludicial Court's decision on November 18, 2003.80 That decision held that same-sex couples have a constitutional right under the Massachusetts constitution to the benefits of civil marriage,81 making it even more likely that opponents of same-sex marriage will seek a constitutional amendment to ban same-sex marriage. 82 Whatever the merits of a marriage amendment may be, from a Rawlsian perspective it is very likely that such an amendment is another instance of a comprehensive doctrine invading the freestanding sphere of the political. This is so to the extent that the case against homosexual marriage tends to be based on such factors as

76. 491 U.S. at 402 (vacating defendant's conviction under Texas law banning flagburning). 77. The Alliance for Marriage is one organization that is currently engaged in advocacy for a federal marriage amendment. See Alliance for Marriage, at http://www.allianceformarriage.org (last visited Feb. 2, 2004). 78. 123 S. CI. 2472 (2003). 79. ld. at 2496 (Scalia, J., dissenting). 80. See Linda Greenhouse, Supreme Court Paved Way for Marriage Ruling with Sodomy Law Decision, N.Y. Times, Nov. 19, 2003, at A24. 81. See Pam Belluck, Marriage by Gays Gains Big Victory in Massachusells, N.Y. Times, Nov. 19, 2003, at Al. As of this writing in mid-February of 2004, the Massachusetts legislature is holding a constitutional convention to discuss whether to counteract the Supreme ludicial Court's ruling authorizing gay marriage. 82. See Adam Nagourney, A Thorny lssue for 2004 Race, N.Y. Times, Nov. 19, 2003, at Al.

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tradition, status quo morality, and above all on natural law. 83 But Rawls makes no attempt to decide the issue. 84 Although Rawls's notion of a comprehensive doctrine may be relevant to criticizing a marriage amendment, would such an amendment also transgress the lirnited purposes that he had argued are characteristic of the twenty-seven amendments to the Constitution?85 There are good reasons for thinking a marriage amendment would go beyond those criteria. For example, no amendment to the Constitution has singled out a particular dass of persons and denied its members important rights that all others enjoy. On the contrary, the amendments concerned with individual rights have either proscribed their abridgement or conferred rights upon groups that had been previously denied those rights, as with blacks in the Fourteenth and women in the Nineteenth Amendments. One can certainly argue that given the evidence of the genetic origins of sexual orientation, as is now widely agreed to be the case, sexual orientation may be no more of a basis for discrimination than is race, gender, or other immutable characteristics. But whether samesex conduct and relationships are purely a matter of choice or a more or less fixed orientation would appear irrelevant to the principle that all persons should have equal liberty of conscience and be treated as equal moral agents. The full exercise of the two moral powers that, for Rawls, are definitive of moral personality-the capacity for having a sense of justice and the capacity for choosing a conception of one's good 86-require Iiberty of conscience. Without liberty of conscience and "the liberty to fall into error and to make mistakes," one is deprived of the "social conditions necessary for the development and exercise" of the capa city for a conception of a person's goOd. 87 3. The Human Life Amendment A third example of highly controversial proposals for a constitutional amendment is the so-called human life amendment, which has been advocated by various groups since Roe v. Wade 88 legalized abortion. In general, this amendment would define the fetus as a human being and therefore pave the way for proscribing abortion in all the States. It is undear how Rawls would regard such an 83. See lohn Rawls, The ldea of Publie Reason Revisited, in John Rawls: CoUected Papers 573, 587 (Samuel Freeman ed., 1999) (stating that appeals "against same-sex marriages, as within the government's legitimate interest in the family, would reflect religious or comprehensive moral doctrines"). 84. /d. at 587 n.38. 85. Rawls, Political Liberalism, supra note 7, at 238-39. 86. See Rawls, ATheory of Justice, supra note 4, at 442. 87. Rawls , Political Liberalism, supra note 7, at 313; see also MicheIman, supra note 1, at 410-14. 88. 410 U.S. 113 (1973).

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amendment. But in light of his original remarks on aborti on within his discussion of public reason,89 he would likely oppose the amendment, but not necessarily think it unconstitutional, as it may not constitute a "constitutional breakdown" as clearly as he thinks the amendment repealing the First Amendment would. Indeed, in light of his more extended remarks on aborti on in his introduction to the paperback edition of Political Liberalism,90 Rawls appears to leave the question to be determined by a reasonable balance of political vaJues, without taking a hard and fast position on to what outcome that reasonable balance would lead. 91 By contrast, Ronald Dworkin would surely argue that a human life amendment would constitute a major mistake in understanding individual freedom and the role of the State. 92 4. The Foreign-Born Citizens Amendment In contrast to the three foregoing instances of proposed amendments, a fourth example is the quite recent and perhaps somewhat less controversial proposal to permit foreign-born citizens to qualify for the Office of the President provided they have been residents and citizens of the United States for astated number of years-for example, twenty or more years. 93 Assuming that the purpose of the amendment is to adjust the Constitution to include a broader understanding of the qualifications of foreign-born citizens, then the amendment arguably falls within Rawls's list of valid purposes. In support of the amendment proposal, one could argue that today's circumstances are arguably far different from those of the Framers, when fears of foreigners becoming President in the early decades of the Nation were more understandable and perhaps wellgrounded.

89. See Rawls, Political Liberalism, supra note 7, at 243 n.32 (suggesting that a reasonable balance of political vaJues may support a woman's right 10 abortion in the first trimester). 90. ld. at lv-lvi n.3l. 91. See also lohn Rawls, Commonwealth Interview wirh John Rawls, in Collected Papers 616, 618 (Samuel Freeman ed., 1999) (expressing no opinion as to wh ether "things would have gone better or worse if the Court had not made [the] decision fit made in Roe v. Wade]"). 92. See Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993) (arguing that the abortion controversy is over competing understandings of the intrinsic value of life on which government should not take aposition). 93. See Editorial, A Constitutional Anachronism, N.Y. Times, Sept. 6, 2003, at AIO (suggesting that the Constitution should be amended pursuant to present proposals now before the Congress to permit foreign-born citizens to be eligible for the Office of the President).

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B. Rawls's Rationale for Opposing Amendments Repealing Constitutional Essentials

Let us return now to the type of amendment Rawls considers objectionable. According to Rawls, amendments are not meant to dismantle the structure of the Constitution or repeal constitutional essentials, such as the First Amendment Establishment Clause. Rather, their primary function is to adjust, broaden, improve, and correct what is already contained in the Constitution. In this light, wh at should the Court do or say in regard to the hypothetical amendment that repeals the First Amendment's Establishment Clause or the Fourteenth Amendment's Equal Protection Clause? Rawls explains his position: The Court could say, then, that an amendment to re pe al the First Amendment and replace it with its opposite fundamentally contradicts the constitutional tradition of the oldest democratic regime in the world. 11 is therefore invalid. Does this mean that the Bill of Rights and the other amendments are entrenched? Weil, they are entrenched in the sense of being validated by long historical practice. They may be amended in the ways mentioned above but not simply repealed and reversed. Should that happen, and it is not inconceivable that the exercise of political power might take that turn, that would be constitutional breakdown, or revolution in the proper sense, and not a valid amendment of the constitution. The successful practice of its ideas and principles over two centuries place restrictions on what can now count as an amendment, whatever was true at the beginning. 94

Again, Rawls's reasoning is surely persuasive. But we should notice that Rawls is not here invoking the perennial conflict between legal positivism and natural law, and taking the side of the latter in repudiating amendments that repeal co re constitutional freedoms. Rather, he cites long-standing tradition and the successful practice of the Constitution's principles and va lues over the course of our history in defense of those co re freedoms. 95 It is on that basis that Rawls characterizes the repeal of the Clauses at issue as a "constitutional breakdown" or "revolution."96 But if longstanding tradition and practice immunize core constitutional freedoms from repeal, that 94. Rawls, Political Liberalism, supra note 7, at 239 (citations omiued). 95. See Solum, supra note 1, at 576 (stating that for Rawls it is "legal practice and not natural law that immunizes the freedoms of speech and religion from the amendment process"). 96. See Samuel Freeman, PoLitieal Liberalism and the Possibility 0/ a lllst Democratie Constitwion , 69 Chi.-Kent L. Rev. 619, 663 (1994) (characterizing repeal of the First Amendment as "constitutional suicide, the destruction of the most fundamental features of a democratic society") [hereinafter Freeman, Demoeratie Constitution] ; see also Samuel Freeman, Original Meaning, Demoeratie Interpretation, and the Constitwion, 21 Phil. & Pub. Aff. 3, 42 (1992) [hereinafter Freeman, Original Meaning] (describing the same as a "constitutional breakdown").

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introduces a barrier into Article V that is plainly absent from its text and perhaps even contrary to its spirit. Moreover, deciding when and where to apply that barrier to amendments poses great difficulties. Some of our long-standing traditions and practices have been abandoned precisely through the amendment process, the Civil War Amendments and the Nineteenth Amendment being notable examples. Of course, Rawls looks upon those amendments as examples of "incorporat[ing] into the constitution a broader and more inclusive understanding of [constitutional] values."97 Perhaps that indicates the inherent ambiguity in the appeal to American traditions and practices. One can easily expand on Rawls's opposition to "radicaI " amendments. For example, in light of the obvious reality of a "pluralism" of comprehensive doctrines in our society-the very pluralism that led Rawls to transform Theory into Political Liberalism-the repeal of the First or Fourteenth Amendment would necessarily do great damage to the continued existence of that pluralism. From Rawls's perspective, repealing the Establishment Clause and endangering liberty of conscience introduces an unreasonable comprehensive doctrine into the very core of our constitutional framework ,98 completely reversing central aspects of our constitutional traditions. C. Views in Support 0/ Rawls's Position

Given the foregoing considerations, it is not surprising that others concur with Rawls's view that some constitutional amendments that are proposed and ratified in accordance with the procedural requirements of Article V may nonetheless be invalid and require the Supreme Court to reject them. What follows is a summary of a few of the arguments that are parallel to Rawls's own thinking on invalid constitutional amendments. 1. Walter F. Murphy

Over the course of many years Walter F. Murphy has argued forcefully in several articles for a position that is similar to Rawls's.99 Murphy certainly recognizes the need for and validity of constitutional change; he could hardly do otherwise. Indeed, at the outset of Merlin 's Memory Murphy quotes the words of Noah Webster: "The very attempt to make perpetual constitutions, is the assumption of a right to controul the opinions of future generations; and to legislate 97. Rawls, Political Liberalism, supra note 7, at 238. 98. Id. at 59 (distinguishing unreasonable comprehensive doctrines fram reasonable ones). 99. See, e.g., Murphy, supra note 67, at 163 n.3 (citing other articles where he has wrilten on substantive limits to the amending power).

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far those over whom we have as Iittle authority as we have over a nation in Asia."loo Murphy also cites Edmund Burke, "the prophet of conservatism," to the same effect: "[A] state without the means of so me change is without the means of its own conservation."101 Yet change tout court is not the issue; it is rather the kind of change proposed far the Constitution. As Murphy says, "so me change is not the same as any change."I02 According to Murphy, change must be evaluated in terms of norms governing "the political desirability, the procedural propriety, or the substantive legitimacy of any specific proposal for change."103 Suppose, for example, that the people decide to abolish constitutional democracy in return for a charismatic leader's promise of prosperity in a time of a severe economic downturn. Although the people can agree to such a transformation, Murphyasks: "Maya people who accepted constitutional democracy democratically or constitutionally authorize such a political transmutation? May the new system validly claim to draw its autharity from the consent of the governed?"I04 Murphy thinks not, and for a variety of reasons, all of which, according to him, point to the necessity for substantive limitations on the amending power. Textual Limits. There are arguably explicit textual prohibitions on certain kinds of changes. I05 For example, Murphy notes that the First Amendment can be seen as prohibiting its own repeal by an Act of Congress, because the text of the First Amendment clearly states that Congress shall make no law abridging freedoms enumerated therein. I06 That argument, however, may be overcome by other considerations, noted by Murphy.107 Semantic Meaning. There is the semantic argument that the word amend means correcting or improving, not deconstructing, reconstructing, or replacing and abandoning the fundamental principles of the Constitution. 108 "[V]alid amendments can opera te only within the existing political system; they cannot ... replace the polity."I09 Normative Constraints. The normative theory embedded in the Constitution imposes prohibitions on the amending power. "Any 100. Id. at 163 (citing Noah Webster, Bills 01 Righrs, in Collection of Essays and Fugitive Writings on Moral, Historical, Political and Literary Subjects 47 (1790» . 101. Id. at 168 (citing Edmund Burke, Reflections on the Revolution in France 19· 20 (Dutton 1910) (1790». 102. ld. 103. ld. 104. Id. at 175. 105. Id. 106. Id. at 175·76 nAO. 107. Id.; see also Michelman, supra note 67, at 1304 n.29 (arguing that this textual interpretation of the First Amendment is not a "compelling argument"). 108. Murphy, supra note 67, at 176·77. 109. Id. at 177.

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change that would transform the polity into a political system that was totalitarian, or even so authoritarian as not to allow a wide space for human freedom, would be illegitimate, no matter how pure the procedures and widespread the public support."11O Natural Law and Natural Rights. Because the Preamble to the Constitution includes the important aim of establishing justice, and because "American tradition implants the nation's founding document, the Declaration of Independence, into the larger Constitution, natural rights im pose binding standards on public officials."11I Thus, "[w]hatever one's opinion of the intellectual worth of natural law and natural rights, the text of the supreme law of the land recognizes and protects them."J12 Each of Murphy's points are certainly relevant to establishing credible grounds for Iimiting the amending power. Each one is also controversial, of course, and may not be decisive or convincing, all things considered. 1l3 For example, following Sotirios A. Barber, Murphy recognizes that "a full commitment to reason allows only a provisional commitment to constitutional democracy because we must be open to rational persuasion about the moral necessity, or at least desirability, of systemic transformation of the polity."J14 For Murphy, a constitutional democracy would permit a radical transformation, but only to a "system that would enlarge reason's empire or strengthen its reign.,,115 I will draw upon these last points in the Conclusion to this Article.

2. Stephen Macedo and Samuel Freeman Like Murphy, Stephen Macedo and Samuel Freeman also argue against the view that Article V procedures will ipso facto guarantee the validity of constitutional amendments. Macedo's positionJl 6 is similar to Rawls's; in fact Rawls dtes Macedo's work with approval. J17 In effect, Macedo argues that parts of the Constitution are more 110. ld. at 179. For an argument that questions the cogency of Murphy's position on this point, see Michelman, supra note 67, at 1306 & n.35. 111 . Murphy, supra note 67, at 180-81. 112. ld. 113. For critical analysis of Murphy 's position, see John R. Vile, The Case Againsl lmplicil Limits on the Constitlllional Amending Process, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 191, 196-201 (Sanford Levinson ed., 1995). "To empower the courts not simply to review the procedures whereby amendments were adopted but also to void amendments on the basis of their substantive content would surely threaten the notion of a government founded on the consent of the governed. " ld. at 198. 114. Murphy, supra note 67, al 189 (referring to Sotirios A. Barber, The Constitution of Judicial Power 60-61,186-87, 232-34 & n.265 (1984)). 115. ld. 116. See Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism 182-83 (1990). 117. Rawls, Political Liberalism, supra note 7, at 238 & n.26.

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fundamental than other provisions, and an amendment that repealed fundamental constitutional freedoms would be "unintelligible and revolting from the perspective of the Constitution as a whole. "118 Thus, according to Macedo, " the first freedoms of speech and the press, the requirement of warrants for police searches, the right to confront witnesses, and to a trial by jury, even the elaborate procedures required to amend the Constitution, all these provisions and more represent basic structural commitments to institutionalizing a process of free and reasonable self-government."1l9 Consequently, "[a]n amendment which sought to expunge that basic commitment and to wipe out basic political and personal freedoms intrinsic to reasonable self-government suggests adesire to revolutionize rather than correct and amend . . . and so it would properly be held by the Supreme Court to be a nullity."120 Two of Macedo's contentions are troublesome. First, he may be implying that the Constitution protects freedoms "intrinsic to reasonable self-government" under all social and economic circumstances, both now and in the future. But that strong claim would be virtually impossible to support with convincing arguments. For one thing, future contingencies may require us to revise whatever view we now hold about which freedoms are intrinsic to the Constitution and to reasonable self-government. Second, he assurnes without argument that it is part of the role of the Supreme Court to exercise judicial review of the substantive content of amendments. Of course, on this second point Rawls's position is no different. But as discussed below, there are persuasive reasons that arguably explain the Court's refusal to exercise oversight of the substantive content of validly ratified constitutional amendments. 121 Unlike Macedo, who wrote of the problem under discussion before Political Liberalism was published, Samuel Freeman directIy addresses Rawls's opposition to amendments repealing core constitutional freedoms .122 Freeman concedes that Rawls here embraces a "radical idea,"123 the idea, namely, "that not everything enacted according to Article V procedures constitutes a valid amendment to the constitution."124 For example, First Amendment freedoms of religion, speech, and assembly identify tbe most basic of the democratic liberties-Iiberty of conscience and freedom of thought:

118. Macedo, supra note 116, at 183.

119. ld. (internal quotations omitted). 120. Id. 121. See infra notes 139-44 and accompanying text.

122. Freeman, Democratic Constitution, supra note 96.

123. Id. at 662. 124. Id.

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Without freedom of thought, inquiry, and discussion, public reasoning about the constitution and democraey itsel[ would not be possible. For the sovereign people to attempt to give up these liberties for the sake of other va lues is not a legitimate amendment to the constitution. lt is constitutional suicide, the destruction of the most fundamental features of a democratie society. These basic liberties are then "inalienable," to use the eighteenth century term; they cannot be bartered away. As such they are constitutionally entrenched. 12S

Freeman's remarks are germane to the discussion of the basis of equality in Part III below, which returns to the subject of democracy and its importance to Rawls's position on the amendment issue. 3. William F. Harris 11 William Harris offers an extended reflection on constitutional change in his book The Interpretable Constitution. 126 Chapter 4, "Revising the Constitutional Polity: The Limits of Textual Amendability," is devoted entirely to the subject. It is complex, original, and in many respects a profound reflection on the subject. In many ways, however, the earlier chapters in his book be ar importantly on the amendability issue. Here it is possible only to summarize a few of his ideas on constitutional change. From one perspective, the position Harris develops can be used in support of Rawls's claims on acceptable amendments; but there is another side to Harris's thought that allows for radical change. On the one hand, Harris argues that "[t]he solidity of the constitutional world rests on the possibility of other constitutional worlds, or revised versions of the present one, being brought into being in its place."127 On the other, he argues that the form, design, or wholeness of the constitutional document must be respected and left intact. For the Federalists, at least, the meaning of the Constitution's text "was to be found in the character of its project, not in its sentences. "128 Accordingly, Article V should not be viewed as a freestanding provision, for "one provision of the document should not be interpreted so as to destroy the whole text. "129 As far as the use of Article V is concerned, any change or amendment, according to Harris, "must continue to make sense within the preexisting scheme of constitutional meaning."I30 Harris's position is obviously congruent with Rawls's. Harris presents a double-stranded view of constitutional change by Id. at 663 (emphases added) . Harris, supra, note 9. Id. at 166. Id. al 172. Id. 130. Id. at 183. 125. 126. 127. 128. 129.

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making a distinction between amendments that employ the procedures of Article V, and a more or less complete revolution of the constitutional polity by the action of the sovereign people. Whatever changes that come about through the use of Article V must be in conformity with the "wholeness" of the Constitution; on the other hand, the whole people, in virtue of their ultimate sovereignty, may suspend "the system by which it was previously represented. The theological equivalent would be to say that the immediate actuality of divine power .. . would return the universe to the original void for a new beginning."131 Harris puts the distinction crisply: The verification of the sovereign constitution maker is precisely in its capacity to remake what it has made, when it acts as sovereign, on a view of its whole enterprise-and only then. But in the practical ArticIe V amending process, when the machinery of government is acting as the agent of the people in its soverei~n capacity. the notion of limits not only makes sense; it is necessary.l 2

Much remains to be said about Harris's positions on constitutional change, but in light of the foregoing, it can be said that his understanding of Article V is supportive of Rawls's view on the limits of Article V. D. Views Opposing Rawls's Position 1. Jed Rubenfeld and Christopher L. Eisgruber Theorists who appear to oppose Rawls's position on the limits to constitutional amendment do so on more categorical grounds, emphasizing what amounts to a virtual absolute freedom conferred by Article V. Among these theorists are Jed Rubenfeld 133 and Christopher L. Eisgruber. l34 Although Rubenfeld defends a theory of commitment to constitutional values over time, he nevertheless argues that, [t]he very principle that gives the Constitution legitimate authority-the principle of self-govemment over time-requires that a nation be able to reject any part of a constitution whose commitments are no longer the people's own. Thus wrilten constitutionalism requires a process not only of pOEular constitution-writing, but also of popular constitution-rewriting. 1 5

Rubenfeld goes so far as to state, in c1ear opposition to a position such as Rawls's, that "constitutionalism always permits the possibility 131. Id. at 184 n.14. 132 ld. at 193. 133. Jed Rubenfeld, Freedom and Time: A Theory of Constitutional SelfGovernment (2001). 134. Christopher L. Eisgruber. Constitutional Self-Government (2001). 135. Rubenfeld, supra note 133, at 174.

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of legitimate rupture, of a revolutionary process of popular rewriting that takes place, in part or in whole, outside every existing political institution."136 Thus, from Rubenfeld's perspective, it would appear that the long-standing traditions, principles and practices emphasized in Rawls's position do not constitute a bar to radical changes via Article V. Similarly, Eisgruber, referring to Article V, argues that "[a] constitutional procedure that enables people to entrench good rules and institutions will also enable them to entrench bad rules and institutions. A people must have the freedom to make controversial political choices, and that freedom will necessarily entail the freedom to choose badly."J37 But whether the people's freedom to choose badly includes the freedom to decide to abolish their future freedom to choose is questionable. Harris, for example, argues that "[t]he only constraint on the constitution maker, as on any sovereign, is that this people must always act so as to preserve and fulfill its sovereigntyframing its mandates generally and abstractly, and maintaining its capacity to rethink the constitutional order as a whole."J38 This conflict between Eisgruber and Harris is important, but it may be resolved in Part V below, where an attempt is made to reconcile two contrasting strands of Rawls's thought, which are parallel to the claims made above by Eisgruber and Harris. 2. Walter Dellinger and Judicial Review One response to the claims of Rawls, Murphy, Freeman, and Macedo-that repealing a co re constitutional freedom, such as the First Amendment Establishment Clause, would be tantamount to revolution or a constitutional breakdown-is found in Walter Dellinger's discussion of the amendment issues that surfaced in controversies over the Equal Rights Amendment. 139 Although Dellinger was there concerned mainly with process questions, such as the appropriateness of judicial review of contes ted issues about valid ratifications and rescission of ratifications, he made an important point about substance. For the framers of the Constitution, meeting in Philadelphia in 1787, [t]he formal amendment process set forth in articIe V represents a domestication of the right to revolution. ArticIe V maintains the spirit of 1776-the right of the people to alter or abolish an inadequate government. But the manner of the right's exercise is ci rcumscribed. Change is permitted, but only through the modes 136. Id. (emphasis added). 137. Eisgruber, supra note 134, at 120. 138. Harris, supra note 9, at 203. 139. Walter Dellinger, The Legitimacy 01 Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386 (1983).

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specifically sanctioned in the charter of government itself. Article V is thus a very conservative rendering of the right of revolution. 140 Needless to say, if Dellinger is correct tbat Article V provides for an orderly and constitutional means of effectuating a revolution, then tbe serious reservations of Rawls, Freeman, and otbers about "constitutional breakdown" and "revolution" may be somewhat beside the point, because the Framers themselves, according to Dellinger, were arguably anticipating, and providing a peaceful means of responding to, the very conditions wbere actual breakdown and revolution migbt otherwise occur. Elsewhere Dellinger also provides a reason for rejecting tbe Supreme Court's exercise of judicial review of the substance of constitutional amendments: "Judicial review of the merits of proposed amendments is iIlegitimate for tbe simple reason that the Constitution places virtually no limits on tbe content of amendments. Witb two express exceptions, Congress is constitutionally free to propose, and the states to ratify, any amendment whatsoever."141 Like Rawls, Dellinger acknowledges that "the Constitution taken as a whole stands for certain enduring principles, and [that] one can construet meaningful arguments tbat a particular proposed amendment is inconsistent with those principles."142 That seems to be at least part of the basis for Rawls's opposition to certain radical amendment proposals, tbe fact that tbey are ineonsistent with important principles and values contained in the bistorical Constitution" 43 Nonetheless, Dellinger claims that "arguments about the political wisdom of proposed amendments are only arguments; tbey ean never be translated into judicial rules of positive law that confine the ultimate discretion of tbe proposing Congress and the ratifying legislatures.,,144 What Dellinger may bave in mind in speaking of the inability to translate arguments against proposed amendments into positive rules 140. Id. at 431 (citation omiued). But see Michael Parenti, The Constitution as an Elitist Document, in How Democratic is the Constitution 39, 47 n.18 (Robert A. Goldwin & William A. Schambra eds., 1980) (arguing that the Constitution was designed to preserve an undemocratic dass struclUre, making sweeping changes almost impossible). See also Dellinger, supra note 139, at 431 n.235 (commenting on Parenti's position). 141. Walter Dellingcr, Constitlllional Polities: A Rejoinder, 97 Harv. L. Rcv. 446, 447-48 (1983) (citations omitted) (responding 10 Laurence H. Tribe, A Constüution We Are Amending.· In Defense o[ a Restrained ludicial Rote, 97 Harv. L. Rev. 433 (1983» ; see id. at 448 n.14 (citing William Frierson, Amending the Constitlllion otthe United States, 33 Harv. L. Rev. 659, 661 (1920) ("With this enumeration of the maUers which the convenlion thought necessary to withdraw from the amending power, it would see m 10 be impossible to infer an intention that any other restrictions were in te nd cd to be placed upon the character of amendments that might be adopted."». 142. ld. at 448. 143. Rawls, Political Liberalism, supra note 7, at 238-39. 144. Dellinger, supra note 141 , at 448.

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of law is, among other things, our obvious inability to foresee, understand, and evaluate the totality of circumstances that would recommend the proposal and ratification of amendments at some future time. To be sure, the framers of Article V foreclosed two possible amendments within the body of Article V. But those entrenched provisions were arguably required simply to assure the ratification of the Constitution itself, not to foreclose other kinds of change in the future.

E. A Question 0/ Time? In evaluating Rawls's position, perhaps some will say, in bis defense, that we must remember that he was considering a radical idea that originated with Ackerman's hypothesis of a "Christianity Amendment," an extreme example of a constitutional amendment that is so diametrically opposed to our present constitutional tradition as to be almost unthinkable today.145 Yet Rawls hirnself took it seriously; as he said, "it is not inconceivable that the exercise of political power might take that turn. "146 Indeed, Rawls's worry may seem all the more tenable when we consider the growth and political influence of religious fundamentalism in contemporary America and elsewhere in the world. The recent and unsuccessful attempt to maintain a display of the Ten Commandments in the lobby of the Alabama Supreme Court in violation of a federal court order to remove the display suggests that the separation of church and state is not in grave danger. 147 It is not difficult, however, to imagine the gradual growth over the course of years or decades of a build-up of popular support for a much more extensive integration of law and religion. When we consider the feasibility of a Christianity (or Islamic) Amendment synchronically, across time, the danger may not be perceived as readily as it might be if we looked at these things diachronically, over a longer course of time. The difficulty with that longer stretch of time, of course, is that the longer it is the more we lose perspective and understanding. Two periods of consciousness-the present in relation to the past, or the present in relation to the future-are very difficult to span. But when we are dealing with the past we know something about that past from abundant sources of information. The future , on the other hand, never quite is; what we know about the future is at best a matter of conjecture. Perhaps that conclusion counsels greater respect for the decisions of future generations of citizens, reminding us that present convictions and circumstances within the status quo are not and cannot be the 145. See Ackerman, supra note 70, at 14. 146. Rawls, Political Liberalism, supra note 7, at 239. 147. See supra note 38 and accompanying text.

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only measures of the constitutionality of an amendment. Thus (so the argument would run) the First Amendment, the Equal Protection Clause, or any number of other core rights or freedoms now protected, are vulnerable wherever convictions and circumstances have changed dramatically, particularly within the distant and contingent future. Given where we stand today in our constitutional democracy, it is nearly impossible for us to imagine the moral, philosophieal, and religious doctrines that may prevail 100 or 200 years from now. Perhaps even more importantly for present purposes, the problem with imagining or predicting the central values and the social and economic circumstances of the future, along with their implications for our fundamental law, is even more acute, as those values and circumstances will depend on a far greater number of variables. Consider, for example, the impact of a dramatic and severe decline of social and economic conditions. Such a decline could be so devastating as to require drastic and unprecedented limitations or repeal of many of the equal liberties. We cannot know the combination of conditions that would lead to a repeal of the Establishment or Equal Protection Clauses, but because we cannot, that may constitute a sufficient condition for not foreclosing that remote possibility in advance. After exploring Rawls's position on the basis of equality in Part 111 and how the Court might decide in Part IV, I return to the above points in Part V. 111. RA WLS ON THE BASIS OF EQUALITY There is another approach to the issue discussed in the foregoing part that may yield a sounder and more attractive defense of Rawls's position on the amendment issue. We have been assurning that the amendment under review would repeal such core freedoms as the Establishment Clause or the Equal Protection Clause. In either event the fundamental equality of citizens in our constitutional democracy would be dramatically affected. In Rawls's terminology, those amendments would violate the "basis of equality." What is meant by the basis of equality? Rawls has two different explanations of this concept, one in Theory148 and another in Political Liberalism. 149 Distinguishing them will further illuminate the main difference between Rawls's two major works. A. The Basis oi Equality in A Theory of Justice Rawls gives an account of the basis of equality in Theory that explains "the features of human beings in virtue of which they are to be treated in accordance with the principles of justice."15o The 148. See Rawls, A Theory of Justice, supra note 4, § 77, at 441. 149. See Rawls, Political Liberalism, supra note 7, at 19, 79-81,109-10. 150. Rawls, ATbeory of Justice, supra note 4, § 77, a t441.

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underlying question concerns "what sorts of beings are owed the guarantees of justice."151 Rawls explains: The natural answer seems to be that it is precisely the moral persons who are entitled to equal justice. Moral persons are distinguished by two features: first they are capable of having (and are assumed to have) a conception of their good (as expressed by a rational plan of life); and second they are capable of having (and are assumed to acquire) a sense of justice, a normally effective desire to apply and to act upon the prineiples of justice, at least to a certain minimum degree. ß2 Thus, in Theory, moral personality is a potentiality that is ordinarily realized by human beings, and this potentiality for moral personality Rawls regards as the foundation of and "a suffieient condition for being entitled to equal justice."153 If human beings did not possess these two moral powers or capacities, presumably they would not be entitled to equal justice. But because human beings do (normally) possess these capacities, then "[t]his fact can be used to interpret the concept of natural rights."154 Rawls explains his reference to natural rights: For one thing, it explains why it is appropriate to call by this name the rights that justice proteets. These claims depend solelyon eertain natural attributes the presenee of which ean be aseertained by natural reason pursuing common sense methods of inquiry. The existence of these attributes and the claims based upon them is established independently from soeial conventions and legal norms. 155 It is the presence of these attributes in human beings that entitles them to make claims based on these attributes. For Rawls, it is thus natural for us to seek justice, to make claims based upon our nature, our natural attributes. Arguably, it is even our responsibility to make claims that we believe are justly derived from our natural attributes. It is also natural for us to cballenge conventions and taboos tbat are inconsistent witb or contrary to the claims we sincerely believe are na tu rally or reasonably derived from these natural attributes. Rawls's founding of equality and justice upon natural attributes of persons, and his association of the concept of natural rights with this foundation , implies that a great many rights derive from the two moral capacities he attributes to persons. Indeed, it opens the door to a palace of rights that Theory never attempted to identify or define. There is a ready explanation for that: Rawls's immediate concerns

151. 152. 153. 154. 155.

Id. at 442. Id. Id. Id. at 442 n.30. Id. (emphasis added).

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were simply more fundamental and foundational to the underlying theory of justice itself. Thus, a person's capacities for a sense of justice and a conception of the good do not conclude the rendering of justice, but identify its natural starting point. To be meaningful, a person's natural capacities necessarily include an indefinite number of claims that derive from and depend upon those defining human capacities. Otherwise, the presence of the two powers Rawls identifies is iIIusory and opaque: They would fail to have real consequences and would not qualify the force of the claims persons may make about the justice and the goodness of the fundamental decisions that define their lifeways. If we are to take rights seriously, we must therefore attend to the comprehensive dimensions and the more extensive implications of our moral powers to give justice and define, pursue, and revise our conceptions of the good. We might pause to note Ronald Dworkin's comments on Rawls's use of the term "natural rights." Dworkin was the first to identify Rawls's method as constructivist. 156 He also noted the natural rights foundations of Rawls's theory, even though it was a term Dworkin avoided in describing that theory "because it has, for many people, disqualifying metaphysical associations. "157 Such pcople "think that natural rights are supposed to be spectral attributes worn by primitive men like amulets, which they carry into civilization to ward off tyranny."158 But within the constructive model: [T]he assumption of natural rights is not a metaphysically ambitious one. It requires no more than the hypo thesis that the best political program, within the sense of that model, is one that takes the protection of certain individual choices as fundamental , and not properlv subordinated to any goal or duty or combination of these.15~

For Dworkin, Rawls's assumption of natural rights therefore does not involve a dubious ontology-at least no more dubious than the fundamental concepts that direct utilitarian theories of justice. Thus, from Dworkin's perspective, Rawls's 'deep theory' renders rights natural rather than the long-term outcome of custom or explicit legislation. Natural or fundamental rights are the independent grounds for assessing the justice of custom and legislation. We can,

156. See Rawls, Political Liberalism, supra note 7, at 91 & n.1 (citing Ronald Dworkin, Taking Rights Seriously 159-68 (1978)). 157. Ronald Dworkin, Taking Rights Seriously 176 (1978). For similar reasons, Dworkin has avoided use of the naturallaw label. Bur see Ronald Dworkin, "Narural" Law Revisited, 34 U. Fla. L. Rev. 165 (1982) (reluclantly adopting the label of "naturalism" in describing his theory of adjudication). 158. Dworkin, supra note 157, at 176. 159. Id. at 176-77.

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Dworkin says, test this theory of natural rights by examining "its power to unite and explain our political convictions."I60 To avoid the conclusion that Theory was a strong and explicit defense of natural rights, it is helpful to note that the only place Rawls refers to natural rights as applying to his theory is in a single footnote within his discussion of the "basis of equality," which occurred weil over 400 pages into Theory.161 Yet he does refer to the concept of natural rights in that one footnote . But any claim that arises from our moral personality's natural attributes (the two moral powers), "the presence of which can be ascertained by natural reason pursuing common sense methods of inquiry,"162 is not, to repeat Dworkin's phrase, a "metaphysically ambitious one." If, as Rawls holds, "the capacity for moral personality is a sufficient condition for being entitled to equal justice,"163 and if core constitutional freedoms such as free speech, equality, free exercise of religion, and the like, are based on claims that implicate the two natural capacities known by those "common sense methods of inquiry,"I64 then we have a further and perhaps deeper explanation for Rawls's opposition to amendments that would repeal the First Amendment or the Equal Protection Clause. Such amendments would violate the basis of equality by infringing on the exercise of the two moral powers, the two natural capacities that in significant From this perspective, those respects define us as persons. amendments would not only constitute a "constitutional breakdown" or "revolution," but a dismantling of human persons as they are known by means of Rawls's "common sense methods of inquiry." Does Rawls's account of equality have paralleis in the law? Arguably one finds evidence of his natural rights account of equality in many of the decisions of the Supreme Court, some of which antedate the appearance of Theory. One outstanding example is Justice Douglas's majority opinion in Griswold v. Connecticut, I65 which established the constitutional right of privacy in the course of holding that married persons have a right to use birth control devices and receive medical counseling concerning their use. In writing about the marital right of privacy, Justice Douglas ended his opinion with these words: "We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system."I66 His opinion bristles with overtones of a natural right to

160. ld. at 177. 161. Rawls, ATheory of Justice, supra note 4, at 442 n.30. 162. ld. 163. ld. at 442. 164. ld. at 442 n.30. 165. 381 U.S. 479 (1965). 166. ld. at 486.

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make fundamental decisions analogous to the one at issue in Griswold. 167 Writing for the Court several years after Griswold in Eisenstadt v. Baird,l68 Justice Brennan characterized the right of privacy more broadly: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."l69 That language, of course, foreshadowed the decision of the Court the following term in Roe v. Wade ,170 where the Court endorsed the proposition that the right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."J7J Those three decisions are examples of situations where personsmarried couples, single persons, and pregnant women-exercise their moral powers by giving voice to their natural capacity for a sense of justice and a conception of their good. We cannot claim that Rawls's early work influenced the Court's holdings in those cases. The point is rather that we can look to Rawlsian ideas to better understand those and many other decisions of the Court. We might , for example, rewrite the Griswold rationale for mari tal privacy in sexual matters to reflect the idea that the underlying claim for privacy justly and reasonably arises from persons' natural moral powers to seek justice and express their firm sense of their good, which no state should be allowed to deny except for extraordinary and grave reasons. Likewise, we can appreciate the great importance of the right to choose abortion to a pregnant woman for the same reasons. The state may weIl encourage a woman so situated to exercise responsibility in making her decision, but not go as far as to coerce the decision .172 The foregoing account of the basis of equality in Theory may appeal to philosophers just as it did to Rawls in his early work. But because it is more a matter of philosophical argument than constitutional analysis, it is doubtful that the majority of constitutional lawyers would accept this account as a basis for limiting the substantive content of constitutional amendments. Moreover, Rawls's account of the basis of equality in Theory seems to be part of a comprehensive 167. As one scholar noted, shortly after Griswold was handed down, "[tJhe Jesuit magazine America noted the irony of some of the justices essentially having to rely on 'higher law' or 'nalurallaw' derivations in order 10 slrike down a law Ihat the church for so many decades had defended on quite different but similarly labeled ' natural law' grounds." David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade 256-57 (1994). 168. 405 V.S. 438 (1972) (extending the right of privacy concerning the use of contraceptives to single persons). 169. Id. at 453 (citations omitted). 170. 410 V.S. ll3 (1973). 171. Id. at 153. 172 See generally Dworkin, supra note 92; see also Planned Parenthood v. Casey, 505 V.S. 833 (1992).

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doetrine inasmueh as it grounds itself on a theory of natural rights, even in the limited way in whieh Rawls embraees that theory. To the degree that Rawls departs from that eomprehensive doctrine and substitutes another explanation for the basis of equality in Political Liberalism, we should consider putting aside the earlier aceount and examine his new rationale. For one thing, it may be more acceptable to eonstitutional lawyers and even influence the Court's deeision if ever it is faeed with an amendment repealing the core constitutional values that Rawls was concerned would be unjustly eroded. B. The Basis of Equality in Political Liberalism The major difference in Rawls's discussion of the basis of equality in Political Liberalism is the apparent absence of any reference to natural rights. Rather than claiming, as he did in Theory, that persons have the two moral powers as natural capaeities or attributes, and relating these attributes of moral personality to a natural rights foundation,173 in Political Liberalism Rawls presents a more straightforwardly political aeeount of the two moral powers and their relation to the basis of equality. This change, of course, re fleets his goal of detaching his eoneeption of justice from any and all dependenee on a eomprehensive doetrine. Before stating what Rawls says about the basis of equality in Political Liberalism, let us first eonsider a few aspeets of the background and foundation for his position. For Rawls, "the fundamental organizing idea of justiee as fairness . . . is that of society as a fair system of eooperation over time, from one generation to the next.,,174 Rawls takes this idea "to be implicit in the public culture of a democratic society."175 Because those who engage in these "fair terms of eooperation" in the "publie eulture of a demoeratic society" are persons, we obviously need some eoneeption of what we mean by persons. Rawls explains: Beginning with the ancient world, the concept of the person has been understood, in both philosophy and law, as the concept of someone who can take part in, or who can playa role in, social life, and hence exercise and respect its various rights and duties. Thus, we say that a person is someone who can be a citizen, that is, a normal and fully cooperating member of society.176

Unless we accept what Rawls says here, we can make no sense of our soeial, legal, and political institutions, which are precisely founded upon such implieit ideas and whieh impute all sorts of eapacities, responsibilities and liabilities to persons. And beeause Rawls's 173. 174. 175. 176.

Rawls, A Theory of Justice, supra note 4, § 77, at 442 n.30. Rawls, Political Liberalism, supra note 7, at 15. ld. ld. at 18.

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starting point is the tradition of democratic thought, he also thinks of citizens as free and equal. He explains: The basic idea is thaI in virtue of their two moral powers (a capacity for a sense of justice and for a conception of the good) and the powers of reason (of judgment, thought, and inference connected with these powers), persons are free. Their having these powers to the requisite minimum degree to be fully cooperating members of society makes persons equal.!17

Rawls then elaborates on this, and makes the critical point I want to emphasize: [S]ince persons can be full participants in a fair system of social cooperation, we ascribe 10 them Ihe two moral powers connected with the elements in the idea of social cooperation [already] noted ... : namely, a capacity for a sense of justice and a capa city for a conception of the good .... 178

Thus, instead of grounding the basis of equality on natural rights, as he did in Theory, Rawls now ascribes the two moral powers to persons in virtue of their successful democratic practices as free and equal persons over the course of generations. The logic of this reasoning is compelling: Unless we ascribe (impute or attribute) the two moral powers to persons, and unless persons with these powers are free and equal, we cannot explain or understand their long-standing and successful practices within a public democratic culture, to which our Constitution is committed in manifold ways. There is no deep ontology or metaphysics involved here; nor is there any attribution of natural rights to persons, as there was in the one footnote in Theory .179 What we have is rather an example of Rawls's common sense methodology, now applied to the task of restricting his conception of justice to the political in order to achieve a "freestanding" conception of justice and thereby appeal to all reasonable comprehensive doctrines for their endorsement of an overlapping consensus on the political conception of justice. What might this now say to constitutionallawyers, particularly with reference to hypothetical amendments that would repeal core constitutional freedoms, or establish a religion, or do away with the equal protection of the laws? It would tell them that what is at stake in adopting such amendments is the implicit understanding of persons as free and equal and to whom we necessarily "ascribe" the moral capacities to have conceptions of justice and the good, all of which underwrites the very possibility of our having a public democratic culture. Rawls is right, at least to this extent: The amendments he opposes, 177. Id. at 19 (citing Rawls, A Th eory of Justice, supra note 4, § 77). 178. Id. (emphasis added). 179. See Rawls, A Theory of Justice, supra note 4, § 77, at 442 n.30.

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if adopted by Congress, the States, and the people, would be tantamount to a constitutional breakdown or revolution if only because they would be such radical departures from core constitutional values and principles that rest upon our understanding of democracy, persons, the basis of equality, and moral personality. We can therefore see that for Rawls much more is actually at stake than simply opposing amendments because of their departure from long-standing traditions and practices. But is Rawls also right in denying that the Court must accept the amendments as valid?180 Here there is room for same dis agreement. For one thing, much would obviously depend on the jurisprudential views of the then sitting Justices who would have to decide the issue.

IV. How MIGHT THE COURT DECIDE? Faced with achallenge to an allegedly unconstitutional amendment, the Court would have a daunting task. It is unlikely that the Justices would agree on a single rationale for their decision. On the contrary, we can imagine several scenarios competing for the Justices' votes. Scenario One. The Court might simply say that they have no appellate jurisdiction over the substantive content of an amendment, the reason being that Article V and the Constitution as a whole make no allowance for judicial oversight of such a matter. On the other hand, they would no doubt agree to adjudicate questions concerning the procedural correctness of the manner in which an amendment was proposed or ratified in light of provisions set forth in Article V. But procedural problems are not in issue in respect to the amendments under consideration here. It is precisely the substance of those amendments that causes concern for Rawls and others. In short, if the Court were dominated by textualists or narrow originalists, it might weil hold , possibly with great regret , that the plain meaning of Article V allows for any amendment, regardless of content, apart, of course, from the one entrenched exception that survives to this day.181 Scenario Two. The Court may summarily decide that judicial review of the substance of amendments is simply foreclosed on the theory that these matters are nonjusticiable political questions lying beyond their jurisdiction. 182 Scenario Three. Unlikely and remote as this scenario may be, the 180. See Rawls, Political Liberalism, supra note 7, at 238 n.25 (contesting the view of Bruce Ackerman that the commitment to dualist democracy implies that the Court must accept such amendments (citation omiued». 181. See Dow, supra note 69, at 117. 182. See James E. Fleming, We lhe Exceplional American People, 11 Const. Comm. 355, 375 n.83 (1994) (noting that the common interpretation of Coleman v. Miller,307 u.s. 433 (1939), precludes review of amendments). Bur see Bruce Ackerman, Conslilutional PolilicslConslitulional Law, 99 Yale L.I. 453, 492-99 (1989) (rejecting the common interpretation of Coleman) .

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Court may take the view that constitutional amendments are in any case irrelevant, for the good reason that if an amendment has been able to achieve the superrnajority support required by Article V, then the value inscribed in that amendment was arguably already a value of the American People before its ratification. IB3 The idea is that amendments are second-order phenomena that merely instantiate an already given and realized social and political value of the People. The underlying argument here would obviously need to be worked out in much greater detail. Scenario Four. Drawing upon an insight of Professor F1eming, we might say that "the question whether the Supreme Court has authority to declare amendments (or original provisions) unconstitutional presents a case of what Hart would call uncertainty in the penumbra of the ultimate rules of recognition."I84 Yet this uncertainty will not necessarily prevent a court from rendering a decision. Expanding on his meaning, Hart explains: One form of 'formalist' error may perhaps just be that of thinking that every step taken by a court is covered by so me general rule conferring in advance the authority 10 lake it, so thai its creative powers are always a form of delegated legislative power. Tbe truth may be that, when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules, they gel their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success. 185 But Hart was obviously of two minds about the authenticity of this "success." Indeed, his further comments (following those just cited) on this issue suggest that "success" may sometimes be illusory: It is conceivable that the constitutional question at issue may divide society too fundamentally to permit of its disposition by a judicial decision. The issues in South Africa concerning the entrenched c1auses of the South Africa Act, 1909, at one time threatened to be too divisive for legal settlement. But where less vital social issues are concerned, a very surprising piece of judicial law-making concerning the very sources of law may be calmly "swallowed". Where this is so, it will often in retrospec( be said, and may genuinely appear, that there always was an "inherent" power in the courts to do what they have done. Yet this may be a pious fiction, if the only evidence for it is the success of what has been done. 186

Scenario Five. Building on the preceding scenario and recognizing a distinction between power and legitimacy, there is the possibility that 183. See David A. Strauss, The lrrelevance 01 Constirutional Amendments, 114 Harv. L. Rev. 1457 (2001). 184. Fleming, supra note 182, at 375 (citing H.L.A. Hart, Tbe Concept of Law 14450 (1961». '185. H.L.A. Hart, The Concept of Law 149 (1961). 186. ld. at 149-50.

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the Court may use its power to achieve a result that is illegitimate, one that is not, in so me sense, in accord with the rule of law, precedents, or other authority. This is something that Rawls concedes is not at a11 inconceivable, at least with respect to the electorate or the legislative branch. 187 Rawls explains: Now admittedly, in the long run a strong majority of the electorate can eventually make the constitution conform to its political will. This is simply a fact about political power as such. There is no way around this fact, not even by entrenchment c1auses that try to fix permanently the basic democratic guarantees. No institutional procedure exists that cannot be abused or distorted to enact statutes violating basic constitutional democratic principles. 188 The same reasons, bowever, arguably apply to the Supreme Court with equal force, for there is no "institutional procedure" of the Court that cannot be abused, distorted, or simply ignored. The problem here, however, is more basic: which Court procedure or precedent is controlling or even relevant to answering the question whether the Court should or should not invalidate a procedurally correct and ratified amendment? The answer may simply be that the Court will decide how to decide. Scenario Six. The Court may embrace Professor Dellinger's view 189 that for the 1787 Framers, Article V embodied a domestication of the right to revolution, the right of the people to alter radica11y or even abolisb a government tbey rejecL The argument here would say that the conservative provision of the right of revolution should therefore be shielded from judicial review and invalidation. Case closed. Scenario Seven. Fina11y, the Court may bold that an amendment repealing the First Amendment or the Equal Protection Clause violates fundamental human rights set forth in the Universal Declaration of Human Rights and various other human rights instruments to which the United States is a signatory. The Universal Declaration, for example, provides in Article I that "[a]l1 human beings are born free and equal in dignity and rights.. . [and] are endowed with reason and conscience."190 Article VI provides that "[e]veryone has the right to recognition everywhere as a person before the law."191 And Artic1e VII states, in relevant part, that all are entitled to "equal protection of the law."192 In light of these " global" human rights, the Court may hold the amendment invalid as 187. See Rawls, Political Liberalism, supra note 7, at 239 (noting that the exercise of political power may conceivably lead to repeal of the First Amendmenl). 188. Id. at 233. 189. See supra text accompanying notes 139-40. 190. Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., art. I , U.N. Doc. N810 (1948) . 191. Id. art. 6 (emphasis added). 192 Id. art. 7.

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inconsistent with the universal and "higher" law of the United Nations.

v. RECONCILIATION:

A CAUTIOUS EYE ON THE FUTURE

To reconcile Rawls's position on unconstitutional amendments with the unknown nature of the circumstances of the future, including the decisions and values of future Americans, it may be helpful to begin by recalling that Rawls's famous two principles of justice derive from a more general conception of justice that is captured in one single principle. Rawls describes that single principle as folIows: All social values-liberty and opportunity, income and wealth, and the social bases of seIf-respect-are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone's advantage. 193

This general one-principle theory of justice does not divide the distributive system of justice into two parts, one dealing with the equal Iiberties (as Rawls's first prindple does), and the other with soda I and economic inequalities (as part of Rawls's second principle does).194 Although this more general one-principle theory would allow even the basic liberties to be distributed unequally, so long as an unequal distribution is to everyone's advantage, Rawls's two-principle theory c1early does not allow such a trade-off of liberty for greater sodal and economic advantages. His "difference prindple" applies only to sodal and economic inequalities. Now Rawls's claim that his conception of justice (embodied in his two principles of justice) is "a special case of a more general conception of justice"195 (the one-principle conception) is significant for the following reasons. First, it suggests that his own theory has as its source a reasonable approach to justice, although not the one that he thinks best. Second, this more general theory, while incorporating a broader "difference principle" that applies even to the basic liberties, has an implicit element of utilitarianism, for it arguably stands for the proposition that as long as all citizens are advantaged by an unequal distribution of basic liberties, justice is satisfied. To be sure, Rawls offers powerful arguments why this is not the best solution to the design of just institutions. 1% Nevertheless, the two versions of utilitarianism (average and c1assical utilitarianism) are on Rawls's list of alternative conceptions of justice available to the parties in the original position.197 Putting aside the Egoistic

193. 194. 195. 196. 197.

Rawls, A Theory of Justice, supra note 4, § 11, at 54. For a statement of the two principles, see id. at 53. Id. at 54. Id. § 26, at 130; id. § 29, at 153. Id. § 21 , at 107.

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conceptions of justice,198 each of the other alternative conceptions have merit, or as Rawls says, each "has its assets and liabilities."I99 Thus, while utilitarianism may not be the best solution to the problem of choice in the original position, it is one reasonable choice that is available for consideration. Now assume that there are circumstances under which the citizens of a constitutional democracy will be led to endorse a sacrifice of their Iiberties for the sake of advantages or necessities that would otherwise be unavailable. In support of this assumption, it should be noted that Rawls presented his theory of justice with the proviso that it presumes a certain level of material development has been reached as a precondition for its viability.20o Consistent with that presumption is the possibility that a society which has satisfied that precondition in the present may one day suffer a severe setback and no longer be able to maintain its justice system, including the equalliberties and other rights which had been successfully guaranteed in the past. From this it follows that if social and economic conditions should no longer be favorable to honoring the core constitutional freedoms that Rawls and others want to protect from repealing amendments, then the People arguably act reasonably in relinquishing those freedoms in the face of dire circumstances resulting trom war, famine, natural disasters, or other unknown national and world conditions that may prevail in the future. These considerations counsel two sets of distinctions, which are different ways of highlighting the ambiguity in dealing with the quest ion of wh ether or not the Supreme Court should invalidate amendments to the Constitution that repeal co re constitutional freedoms. First, we must distinguish between ideal and non-ideal theory, a distinction that Rawls hirnself makes at the outset of Theory .201 Second, we should distinguish between a view internal to the Constitution and a view external to it. I take up these distinctions in turn. A. Ideal VS. Non-Ideal Theory

One of the limitations that Rawls imposes on his theory of justice is the restrietion that it is limited to wh at he calls "ideal theory" or 198. ld. at 108. 199. ld. 200. ld. § 82, at 475 ("The equalliberties can be denied only when it is necessary to change the quality of civilization so that in due course everyone can enjoy these freedoms."). The text of the 1971 edition is slightly different. See also id. § 39, at 217. (l]t may be necessary to forgo part of these freedoms when this is required to transform a less fortunate society into one in which all the basic liberties can be fully enjoyed. Under conditions that cannot be changed at present, there may be no way to institute the effective exercise of these freedoms . . .. Id. 201. Id. § 2, at 7-8.

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"strict compliance theory" as opposed to "non-ideal" or "partial compliance" theory.202 Within ideal theory "[e]veryone is presumed to act justly and to do his part in upholding just institutions," whereas non-ideal theory "studies the principles that govern how we are to deal with injustice," comprising "such topics as the theory of punishment, the doctrine of just war, and the justification of the various ways of opposing unjust regimes, ranging from civil disobedience and conscientious objection to militant resistance and revolution."203 Rawls's rationale for proceeding in this way recognizes that "the problems of partial compliance theory are the pressing and urgent matters" and that they "are the things we are faced with in everyday life." But "[t]he reason for beginning with ideal theory is that it provides .. . the only basis for the systematic grasp of these more pressing problems. ,,204 $0 stated, non-ideal theory depends upon ideal theory: We cannot know how to deal with injustice and non-compliance until we have answered questions concerning the nature of justice. There is a presumption here that non-ideal theory, including the nature and extent of partial compliance, will not threaten the viabiIity of ideal theory. One might say that for Rawls the prevalence of crime and the breath and nature of war will not be such as to cripple the capacity and motivation of citizens to abide by the princip!es of justice. In other respects, however, ideal theory depends upon non-ideal theory, at least upon an expanded sense of what is included in nonideal theory. Related to and incorporated into ideal theory and its practicality is an important idea built into the assumptions of the parties in the original position hypothesis. This idea concerns what Rawls designates the "circumstances of justice," which refer to the "normal conditions under which human cooperation is both possible and necessary.,,205 Among the objective circumstances Rawls emphasizes "moderate scarcity," and among the subjective on es "Iimited altruism." Thus, the circumstances of justice obtain whenever persons put forward conflicting claims to the division of social advantages under conditions of moderate scarcity. Unless these circumstances exisled there would be no occasion for the virlue of justice, just as in Ihe absence of threats of injury 10 life and limb Ihere would be no occasion for physical courage. 206

Now that is a very important statement about what makes justice possible. If circumstances were different, for example, if either extreme scarcity or extreme abundance were characteristic of our 202. 203. 204. 205. 206.

ld. at 8. ld. ld. Id. § 22, at 109. ld. at 110.

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world instead of moderate scarcity, and if altruism were limited almost to the vanishing point instead of being merely limited, then justice, as Hume said, "would be an idle ceremonial, and could never possibly have place in the catalogue of virtues."207 Rawls's understanding of 'ideal theory' is therefore partially founded on a particular set of objective circumstances of the world we now live in. But of course those circumstances are subject to change, even radical change, over the course of time. In light of present world conditions wherein war and great power confrontations have the potential for causing extraordinary violence and limitless destruction, it is at least conceivable, more so than at any previous time in world history , that the circumstances of justice could undergo a radical change for individual nation-states and for the entire world. Therefore, under some circumstances the equal liberties could be abridged, and with good reason, through constitutional amendments that would otherwise constitute a revolution or breakdown in our polity. Now this condusion, as I have already noted, is derivable from Rawls's theory itself. Tbe same point of view is reflected in The Law 0/ Peoples,208 where Rawls distinguishes two kinds of non-ideal theory. One kind concerns the conditions of noncompliance. The second kind "deals with unfavorable conditions, that is, with the conditions of societies whose historical, social, and economic circumstances make their achieving a well-ordered regime . . . difficult if not impossible. These societies [Rawls] call[s] burdened .... "209 Of course Rawls is here speaking of the present circumstances that burden some societies. But there is no reason why a society, such as ours in the United States, or some other functioning constitutional democracy that is presently unburdened, may not become burdened in the near or distant future. Whatever the cause or causes of the future burden may be-natural, social, economic, religious, theological, or some combination thereof-the equalliberties may be restricted or denied by suitable amendments. B. Views Internal and External to ehe Constitution

In his argument against constitutional amendments that repeal co re constitutional freedoms, Rawls adopts a view of the Constitution largely from within the four corners of the document. 2lO His focus is on the historical Constitution and the one that we know in terms of the body of constitutional law that has been elaborated over the course of our history. With all that as a background, Rawls takes the 207. David Hume, An Enquiry Concerning (he Principles of Morals, in 2 Essays Moral, Political, and Literary 180 (T.H. Green & T.H. Grose eds., 1898). 208. See supra note 11 and accompanying text. 209. Rawls, The Law of Peoples, supra note 11, at 90 (footnote omitted). 210. Those authors who defend substantive limits to constitutional amendments are similar to Rawls in this respect. See supra Part II.c.

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Constitution and its eore values as given and does not eonsider views of the Constitution that might be generated by radicaHy ehanged eireumstanees extern al to it. Given his claims about "eonstitutional essentials" in Political Liberalism,211 Rawls views liberty of conscience, the right to vote, freedom of thought and association, and other liberties as among the most important eore freedoms. But in light of the argument in the preceding subsection, Rawls clearly believes that the constitutional essentials are made possible (when they are) by a background of circumstances that his theory takes for granted. Given the eonstancy of those background circumstances of justice, a constitutional amendment repealing core constitutional freedoms would certainly seem to constitute a "breakdown" or "revolution" from the internaJ perspeetive. Indeed, what else could we caH it? Unless the external perspective provides new reasons for radical change-for a justified departure from our traditions and practicesthen radical changes that repeal those traditions, practices, and values are irrational, even unthinkable. The internal perspective is therefore Rawls's presupposition in his opposition to repeal of eore constitutional freedoms. Without radical change in circumstanees, a sudden repeal of those freedoms might lead us reasonably to agree with Rawls's view that the Supreme Court should declare such repealing amendments invalid. However, whenever Rawls eoncedes that limitations on liberty may be justified, he tends to contemplate a day when those limits may no longer be neeessary, as when he says in Theory that "[t]he denial of the equalliberties can be defended only when it is essential to change the eonditions of civilization so that in due course these liberties ean be enjoyed."212 In this sense, Rawls is thinking both within the mode of the externat perspective (outside the Constitution) and within the realm of ideal theory and the fundamentallaw. In other words, he is looking from the unfavorable present toward a better day in the future when eircumstances will eventuaHy allow all the liberties of ideal theory to be exercised. The fact that the Constitution has endured for over two eenturies, with only twenty-seven amendments to the original doeument, should Those who wrote the strike us as an amazing aehievement. Constitution may have hoped it would endure for centuries and continue to apply to ehanging circumstanee with flexibility without compromise of its eore vatues. 213 Of course, they eould see into the 211. Rawls, Political Liberalism, supra note 7, at 227-30. 212. Rawls, A Theory of Justice, supra note 4, at 132. 213. Jefferson , however, thought that the Constitution was valid only for one generation at a time; that "[eJvery constitution ... and every law, na tu rally expires at the end of 19 years." Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 Thomas Jefferson, The Papers of Thomas Jefferson 392 (Julian Boyd ed., 1958), cited in Rubenfeld, supra note 133, at 21.

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future no further than we can today. Yet they made provisions for change in Article V. Apart from two exceptions-allowing the slave trade to continue until 1808 and equal representation of the States in the Senate-Article V, by its terms, left open the possibility of any change or amendment. No argument for substantive limits can ignore the plain meaning of Article V's permissive language. 214 Of course, any number of good arguments can be and have been advanced for why we should eontinue to maintain the core constitutional principles and values we have enjoyed for most of our constitutional history. This is especially true when there are no external factors threatening the continued exercise of those freedoms. But as Dellinger said, "arguments about the politieal wisdom of proposed amendments are only arguments; they can never be translated into judieial rules of positive law that confine the ultimate diseretion of the proposing Congress and the ratifying legislatures."21S The idea of "constitutional faith" may apply here in some relevant sense. 216 Just as the authors of our Constitution may be said to have expressed faith in the practical, good sense of future generations of Amerieans by not tying them to the convictions of the eighteenth century, so too we should have faith and trust in our descendants to deal responsibly with the presently unknown values and circumstances that will charaeterize the future. CONCLUSION

From diverse perspectives, Rawls's opposItIon to constitutional amendments that repeal core constitutional freedoms is eogent. His critique of comprehensive doctrines and his defense of a political eoneeption of justice offer powerful reasons 10 oppose repeal of the First Amendment and the establishment of a religion in its place. Sueh a repeal by means of a valid eonstitutional amendment would also be in violation of eore human rights and deny the basis of equality that Rawls saw as the foundation of the equalliberties. As long as the eonditions that make the exereise of the equal liberties remain feasible, Rawls's position makes eminent sense and deserves our support. But his conclusion that the Supreme Court must declare amendments that repeal eore freedoms invalid is open to eonsiderable doubt. Rawls's position beeomes even more doubtful, however, when we put aside his ideal and normative theory and recall that his theory of justice is partially founded on the assumption of eircumstances of justice that are favorable to the exercise of the equal liberties. A severe change or interruption in those otherwise prevailing 214. See Dow, supra note 69, at 117. 215. Dellinger, supra note 141, at 448. 216. See generally Sanford Levinson, Constitutional Faith (1988). I make no claim 10 be using the phrase "constitutional faith " compatibly with Levinson's intentions.

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circumstances may weil justify a suspension of the equal liberties, something Rawls provided for, as we have seen. In general, our inability to know, und erstand, and predict the circumstances of the future should lead us to respect our descendants, just as the authors of our Constitution appeared to respect us in setting forth the amendment provisions in ArticJe V. As one defender of substantive limits to constitutional amendment conceded, even the fullest commitment to reason "allows only a provisional commitment to constitutional democracy because we must be open to rational persuasion about the moral necessity, or at least desirability, of systemic transformation of the polity.,,217 It is tempting to think that "constitutional democracy would [thus] allow a transformation to another system that would enlarge reason's empire or strengthen its reign."218 But we cannot even be sure of that, lacking the ability to identify, and the wisdom to know, the endless ways reason may be enlarged or strengthened.

217. Murphy, supra note 67, at 189 (comrnenting on a view stated by Sotirios A. Barber, supra note 114). 218. ld. (emphasis added).

[4] A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court NeomiRaot

The Supreme Court's decisions in Vacco v Quill 1 and Washington v Glucksberg 2 held that astate can ban assisted suicide without violating the Due Process or Equal Protection Clauses of the Fourteenth Amendment. In these high profile cases, six philosophers filed an amicus brief ("Philosophers' Brief') that argued for the recognition of a constitutional right to die. 3 Although the brief was written by six of the most prominent American philosophers-Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson-the Court made no mention of the brief in unanimously reaching the opposite conclusion.4 In light of the Court's recent failure to engage philosophical arguments, this Comment examines the conditions under which philosophy does and should affect judicial decision making. These questions are relevant in considering the proper role of the Court in controversial political questions and are central to arecent debate focusing on whether the law can still be considered an autonomous discipline that relies only on traditional legal sourees. Scholars concemed with law and economies and critical legal studies have argued that the law is no longer autonomous, but rather that it does and should draw on many external sources in order to resolve legal disputes. Critics of this view have maintained that legal reasoning is distinct from other disciplines, and that the law has and should maintain its own methods, conventions, and conclusions. This Comment follows the latter group of scholars, and argues that the Court should, as it did in the right-to-die cases, stay clear of philosophy and base its decisions on history, precedent, and a recognition of the limits of judicial authority. Three major

t

B.A. 1995, Yale University; J.D. Candidate 1999, The University ofChicago. 117 S Ct 2293, 2296 (1997). 2 117 S Ct 2258, 2261 (1997). 3 Brief for Ronald Dworkin, et al, as Amici Curiae in support of Respondents, Glucks· berg, 117 S Ct 2258, available at 1996 WL 708956 ("Philosophers' Brie!"). • In addition to the briefitself, Dworltin, a professor ofboth law and philosophy, wrote a lengthy piece justitYing the position taken in the brief. Renald Dworltin, Assisted Sui· eide: The Philosophers' Brief, NY Rev ofBooks 41 (Mar 27,1997). I

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distinctions between the philosophical and the judicial enterprises compel this conclusion. First, judicial decision making is a practical activity, involving actual disputes and having real political consequences. Philosophers focus more on theory, concepts, and abstractions. Second, judges must work within institutional constraints in a political system that requires separation of powers. Philosophers need not consider institutional boundaries; thus, they are free to argue what they choose. Finally, judges in the Anglo-American legal system are bound by legal precedent, and draw legitimacy from references to cultural and political history. Philosophers are not so bound by history and precedent. This Comment concludes that phllosophy and judicial decision making are two very different enterprises, and, accordingly, that the Court's recent trend toward using more phllosophers should be viewed with caution, at least insofar as phllosophers are used as a means for the Court to reach decisions better left to the politica1 process. Part I provides an empirical study of all the cases-fewer than fifty-in which the Court has cited phllosophers. This survey reveals a dramatic increase in the use of phllosophical references by the Court in the past thirty years, often in highly controversial cases regarding such issues as abortion and sexual ethics. Part 11 compares the right-to-die cases with the Philosophers' Brief. It shows how the Court's focus on history and precedent, rather than on abstract phllosophical rights, was highly appropriate, leaving the issue of physician-assisted suicide where it belongs-in the political process. Part m considers the nature of legal reasoning and the judicial process and finds only a limited place for phllosophy. Part 111 also concludes that the reference te a phllosopher is often a backdoor means to bring a controversial decision within the respectable mainstream-masking the contentious policy choice being made. Finally, Part IV addresses the underlying differences in method. I. THE EMPffiICAL DATA: A SURVEY OF PHILOSOPHERS·

The Supreme Court rarely makes explicit reference to philosophers. A search for major Western philosophers5 in the Su• Thls study involved searching for philosophers in the Westlaw Supreme Court and Supreme Court Old databases, which together include all Supreme Court decisions. The databases were searched for references to the following philosophers: Aristotle, Thomas Aquinas, Jeremy Bentham, Edmund Burke, Jacques Derrida, Rene Descartes, Ronald Dworkin, Michel Foucault, Hans-Georg Gadamer, Hegel, Martin Heidegger, Thomas Hobbes, David Hume, Immanuel Kant, Gottfried Leibniz, John Locke, Niccolo Machiavelli, John Stuart Mill, Montesquieu, Thomas Nagel, Friedrich Nietzsche, Rebert Nozick, Plato,

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preme Court database on Westlaw revealed that in its entire history, the Court has made reference to these major philosophers in only forty-seven cases.6 These forty-seven cases include only those John Rawls, Jean.Jacques Rousseau, Jean-Paul Sartre, Thomas Scanlon, Arthur Schopenhauer, Adam Smith, Baruch Spinoza, Judith Jarvis Thomson, Alexis de Tocqueville, and Ludwig Wittgenstein. This list of philosophers, although both subjective and incomplete, includes the thinkers widely regarded te be among the most influential in the Western tradition. The list also includes the six contemporary authors of the Phirosophers' Brief. Of course, the study raises the !arger question about "what is a philosopher?" Tbis Comment does not undertake to answer such a question, and includes in the survey those major moral and political philosophers primarily concemed with individual rights. Further research beyond the scope of tbis survey might consider the role of naturallaw philosophers, such as Grotius and Vattel, who were citod extensively throughout the nineteenth century. IIJ; for empirical accuracy, the Court references philosophers so infrequently that the addition of a philosopher would likely not have a material effect on the survey. The creation of tbis list of philosophers was based in part on AJ. Ayer and Jane O'Grady, A Dictionary of Philosophical Quotations (Blackwell1994). While these philosophers are considered within the Western tradition, there is clearly much controversy concerning who are considered the significant thinkers. See William J. Bennett, To Reelaim a Legacy: AReport on the Humanities in Higher Education 10 (Natl Endow for the Humanities 1984) (listing important authors and recognizing that legitimate debate can exist about the most significant thinkers and the books that a11 students should read, but also noting that "there is more consensus on what the important books are than many people have boen willing to admit"). • In chronological order, these are the forty-seven cases and the philosopher(s) that each one references: Fletcher v Peck, 10 US 87, 121 (1810) (Montesquieu and Adam Smith); Green v Biddle, 21 US 1, 36 (1821) (Montesquieu); Bank of Augusta v Earle, 38 US 519, 538, 571 (1839) (Montesquieu and Tocqueville); United States v Wood, 39 US 430, 438 (1840) (Montesquieu); Dodge v Woolsey, 59 US 331, 371 (1855) (Bentham); Christ Church Hospital v Philadelphia, 65 US 300, 302 (1860) (Bentham); '& parte Garland, 71 US 333, 388 (1866) (Miller dissenting) (Montesquieu); Slaughter·House Cases, 83 US 36, 110 n 39 (1872) (Field dissenting) (Adam Smith); Trist v Child, 88 US 441, 450 n 22 (1874) (Montesquieu); Farrington v Tennessee, 95 US 679, 682 (1877) (Montesquieul; Pollack v Farmers' Loan & Trust Co, 157 US 429, 556, 559 (1895) (Burke and Adam Smith); Beley v Naphtaly, 169 US 353, 360 (1898) (Aristotle); Kawananakoa v Polyblank, 205 US 349, 353 (1907) (Hobbes); German Alliance Insuronce Co v Lewis, 233 US 389, 416 (1914) (Adam Smith); Grant Timber & Manufacturing Co v Gray, 236 US 133, 134 (1915) (Kant); Myers v United States, 272 US 62, 116, 230, 234 (1926) (majority opinion and McReynolds's dissenting opinion) (Montesquieu); Unued States v Müler, 307 US 174, 179 (1939) (Adam Smith); Douglas v City of Jeannette, 319 US 157, 166 (1943) (Jackson concurring in part and dissenting in part) (PIl\to); Mercoid Corp 11 Mid·Continent Investment Co, 320 US 661, 673 (1944) (Black concurring) (Adam Smithl; In re Oliver, 333 US 257, 271 (1948) (Bentham); Pee v Ullman, 367 US 497, 514-15 (1961) (Douglas dissenting) (Kant and Mill); Harper v Virginia State Board of Eleetions, 383 US 663, 685 n 9 (1966) (Harlan dissenting) (Aristotle and Tocqueville); Lindsey v Normet, 405 US 56, 68 n 14 (1972) (Kant); Barker v Wingo, 407 US 514, 520 n 10 (1972) (Bentham); Branzburg v Hayes, 408 US 665, 688 n 26 (1972) (Bentham); Roe v Wade, 410 US 113, 131 (1973) (Aquinas, Aristotle, and Plato); Paris Adult Theatre v Slaton, 413 US 49, 111 (1973) (Brennan dissenting) (Plato); Lakeside v Oregon, 435 US 333, 340 n 10 (1978) (Bentham); Unitcd States v Ceccolini, 435 US 268, 281 n 2, 284 (1978) (Burger concurring) (Sartre and Wittgenstein); Bell v Wolfish, 441 US 620, 581 n 10 (1979) (Stevens dissenting) (Kant); Gannett Co v DePasquale, 443 US 368, 419-20, 422, 448 (1979) (Blackmun concurring in part and dissenting in part) (Bentham); Richmond Newspapers, Ine v Virginia, 448 US 555, 569 n 7 (1980) (Bentham); Hewitt v Helms, 459 US 460, 484-85 (1983) (Stevens dissenting) (Dworkin discussing

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in which the Court has discussed or referenced a philosopher as a philosophical thinker, and not those cases in which a "philosopher" is cited for a predominately historical, economic, or legal

principle.7 While the distinetion between a citation to a philosopher qua philosopher and to a philosopher qua histerian, economist, or lawyer is hard to draw, most cases present fairly dear distinetions. In these forty-seven cases, most of the referenees to philosophers are brief: for example, the Court will state a rather broad proposition, follow it with a simple "See Kant, Perpetual Peace," but fail to provide a quotation or explanation of why such a work might be ofrelevance to the ease.8 The "citations" to philosophers oeeur in different forms. Sometimes the Court cites philosophers for substantive ideas;9 other references stand simply for a broad Mill); Garcia u San Antonio Metropolitan Transit Authority, 469 US 528, 572, 582 (1985) (PoweIl dissenting; O'Connor dissenting) (Nage)); Mitsubishi Motors Corp v Soler Chrysler-Plymouth, [ne, 473 US 614, 665 n 41 (1985) (Stevens dissenting) (Kant); Delaware u Van Arsdall, 475 US 673, 697 n 9 (1986) (Stevens dissenting) (Dworkin); Bowers u Hardwiek, 478 US 186, 211 (1986) (Blackmun dissenting) (Aquinas); Edwards v Aguillard, 482 US 578, 630 (1987) (Scalia dissenting) (Aristotle); Bowen u Gilliard, 483 US 587, 632-33 (1987) (Brennan dissenting) (Piato and Aristotle); Webster u Reproductiue Health Seroices, 492 US 490, 539 n 1 (1989) (Blackmun dissenting) (Dworkin); Barnes u Gien Theatre, [ne, 501 US 560, 587 n 1 (1991) (Whlte dissenting) (Aristotle); Morgan u nlinois, 504 US 719, 752 (1992) (Scalia dissenting) (Kant); Araue u Creeeh, 507 US 463, 479 n 1 (1993) (Blackmun dissenting) (Bentham); City of Ladue u Gilleo, 512 US 43, 56 n 14 (1994) (Aristotle); Missouri u Jenkins, 515 US 70, 133 (1995) (Thomas concurring) (Nagel); Rosenberger v Rector Md Visitors of the Uniuersity of Virginia, 515 US 819, 836-37 (1995) (Plato, Spinoza, Descartes, and Sartre); United Staies v Virginia, 518 US 515, 116 S Ct 2264, 2286 n 20 (1996) (Piato)_ , For each case that referenced a philosopher, the contoxt in which the Court cited the philosopher was analyzed. The esse was then eliminated from the survey if the philosopher was invoked by an advocate and not by the Court, or was referred to in a context involving distinct1y histerical, legal, or economic authority. Because this Comment seeks te examine how judiciaJ decisions use philosophers and philosophicaJ reasoning, references to Hume's histories or Adam Smith's distinctively economic theories were removed from the survey. For example, the following cases were excJuded from the survey: Paul u Virginia, 75 US 168, 171-72 (1868) (citing Adam Smith for the proposition that trading corporations and their commerce was well-known and therefore that the power "to regulate commerce" incJudes corporations); Keek v United States, 172 US 434, 461 (1899) (Brown dissenting) (referencing Hume in a discussion about the historicaJ definition of smuggling); Ex parte Milligan, 71 US 2, 65 (1866) ("Engiand owes more of her freedom, her grandeur, and her prosperity to [the jury trial], than to a\l other causes put together•.•• Montesquieu and De Tocqueville speak of it with an admiration as rapturous as Coke and Blackstone.") (excluded because statement of advocate, not the Court). • See, for example, Mitsubishi Motors Corp u Soler Chrysler-Plymouth, [ne, 473 US 614, 665 n 41 (1985) (Stevens dissenting), citing Kant, Perpetual Peace, A Philosophical Sketch, in Kcmt's Political Writings 93 (Oxford 1971) (Nisbet trans) (H. Reiss, ed), among other sources, in a footnote after the following statement: "The Court's repeated incantaeon of the high ideals of 'international arbitration' creatos the impression that this esse involves the fate of an institution designed to implement a formula for world peace.· • See, for example, Green v Biddle, 21 US 1, 36 (1821) (citing Montesquieu as support

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principle;lO and occasionally the Court invokes philosophers only for comparison. ll The survey includes all of these various uses. Citations to philosophers occur primarily outside of majority opinions, suggesting that the citations lack-or replace-precedential authority. The placement of these citations in concurring or dissenting opinions suggests that philosophical reasoning does not carry much weight with the Court. Of the forty-nine opinions in forty-seven cases that reference philosophers, twenty are dissents and three are concurrences-thus, almost 50 percent of opinions referencing philosophers are not majority ones. Moreover, more than half of all opinions referencing philosophers have occurred since 1950, and twenty-one of the forty-nine opinions have been in the last twenty years.

Suereme Court 0e.inions Citi1J:lI. Philosoehers Years

Total

Majority

Dissenting*

Concurring

1789-1825

2

2

0

0

1826-1850

2

2

0

0

1851-1875

5

2

0

1876-1900

3 3 6

3 3 3 3

0

0

1951-1975

7

1976-1997

21

Total

49

1901-1925 1926-1950

0

0

2

1

4

3

0

5

14

2

25

21

3

* Opinions dissenting in part, and concurring in part, are cOWlted as dissents. An admitted problem with this empirical study is that it does not include cases in which the Court rened on or was influenced by philosophy but included no direct citation. Thus, the extent to which the Court renes on philosophers and philosophical ideas may be greater than the data suggests. Nonetheless, this Comment does not attempt to analyze philosophical influence on the Court, but rather considers how the Court uses philosophers as

for the idea that laws should encourage industry). 10 See, for example, United States !I Ceccolini, 435 US 268, 284 (1978) (Burger concurring) (citing Wittgenstein to describe the concept ofthe freedom ofthe will). JI See, for example, Rosenberger v Rector and Visitors ofUniversity ofVU"ginia, 515 US 819, 836-37 (1995) ("Were the prohibition applied with much vigor at aIl, it would bar funding of essays by hypothetical student contributors named Plato, Spinoza, and Descartes . . .. And ifthe regulation covers, as the University says it does •.. , those student journalistic efforts which primarily manifest or promote a belief that there is no deity and no ultimato reaIity, then under-graduates named Karl Marx, Bertrand Russel, and JeanPaul Sartre would likewise Itave some of their major essays excluded from student publications.").

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sources to re ach legal conclusions. The Court's hesitance to eite philosophers may reflect an implicit recognition that the sources of law in the Anglo-American tradition come primarily from common law customs and understandings. This survey may accurately reveal the extent to which the Court considers philosophers legitimate sour.ces for its legal decisions. The survey raises the interesting question of why, when philosophers are used and eited extensively by legal academics, the Court rarely references these thinkers.12 A An Increased Reliance on Philosophy The survey demonstrates that philosophical references have become more frequent, and their context has shifted to controversial policy questions. The Court's use of philosophers has evolved over time and may correspond to increased judieial overreaching. Throughout its history the Court has at times been accused of stepping beyond its institutional limits and engaging political, rather than legal, questions. Arguably, the contomporary use of philosophers has been one means for the Court to extend its reach further. In the nineteenth century, Supreme Court deeisions quoted philosophers at greater length than more contemporary opinions, but virtually all references were to Montesquieu, whose L'Esprit des Loix was repeatedly cited for propositions of limited govemment, balance of powers, and the need for virtuous eitizens.13 AB the nineteenth century was a time when the fundamental prjncipIes of American govemment were still being affirmed and fully articulated, the Court's reference to such thinkers seems natural and approprlate, espeeially because many references were to the principles of separation of powers and the institutionallimits of the COurt.14

" Part of the Court's hesitance to cite phiJosophers might have to do with the fact that philosophers exist in the "background" of social discourse. rather than in the "foreground" of legal practice. For an excellent discussion of how background discourses can shift the law's understanding of its own sources and nature. see Lawrence Lessig. Understanding Changed Readings: Fidelity and Theory. 47 Stan L Rev 395. 411-12. 438-39 (1995). " See. for example. Trist 11 Child, 88 US 441. 450 (1874) ("The foundation of a republic is the virtue of its citizens. They are at once sovereigns and subjects. As the foundation is undennined. the structure is weakened. When it is destroyed, the fabric must fall. Such is the voice of universal history."); Farrington 11 Tennessee. 95 US 679. 682 (1877) (citing Montesquieu for the idea that a republican government depends on the virtue of its citizens) . .. See. for example. Myers 11 United States. 272 US 52. 116 (1926); id at 230. 234 (McReynolds dissenting); Ex parte Garland. 71 US 333. 388 (1866) (Miller dissenting).

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In the twentieth century, and especially in the last forty years, the Court has referenced a larger variety of philosophers to support many nonlegal arguments. Recent cases go beyond political philosophers such as Montosquieu, Alexis de Tocqueville, and Adam Smith and mention theologians, existontialists, and linguists such as Thomas Aquinas,15 Jean-Paul Sartre,16 and Ludwig Wittgensteinl7 in discussions of reproductive rights, prohibitions against sodomy, and the suppression of evidence obtained through an illegal search. 18 These references generally do not follow substantive philosophical propositions, but rather support or attack certain policy issues. As American society becomes more heterogeneous, the Court faces more controversial and political issues, such as sexual ethics, sexual equality, social class, and religion. Instead of deciding these cases in a way that would leave controversial decisions to the states and the political process, the Court has often developed fundamental rights and given an expansive reading of the Due Process Clause of the Fourteenth Amendment. To avoid criticisms ofjudicial activism, the Supreme Court, both in majority and dissenting opinions, may rely on philosophers.

B. The Court's Use ofPhilosophers An examination of particular cases reveals how the justices have used philosophers in controversial settings to express their own policy preferences or to reach conclusions not required by more conventionallegal reasoning that utilizes analogy, judicial precedent, and the text of the Constitution. By considering the cases in a roughly chronological manner, this Part shows that philosophical references appear more frequently in recent times " See Roe v Wade, 410 US 113, 134 (1973) (explaining that the common law notion of "quickening" might have its source in "Aquinas' definition of movement as one of the two first principles oflife"). .. See Ceccolini, 435 US at 281 (Burger concurring) (noting that the decision of the Court did not require a "judicial excursion into an area about which 'philosophers have boen able to argue endlessly,' namely, the degree of'free will' exercised by a person when engaging in an aet such a8 speaking"), quoting Jean-Paul Sartre, Being and Nothingness 433 (Philosophical Library 1956) (Barnes trans). " Ceccolini, 435 US at 284 (Burger concurring) ("As one philosopher has aptly stated the matter, '[t)he freedom of the will consists in the impossibility of knowing actions that stilllie in the future.'"), quoting L. Wittgenstein, Tractatus Logico·Philosophicus '11 5.1362 (ComeIl1971) (pears & McGuinness trans). .. This increased and diverse use of philosophers may correspond to the decline in the autonomy of law. Judge Richard Posner attributes the decline in the autonomy of law to, among other things, the shattering of political consensus in American society. Richard A Posner, The Decline of Law as an Autonomous Discipline: 1962·1987, 100 Harv L Rev 761, 766-67 (1987). On the autonomy ofthe law, see also Section llIA

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to support policy decisions. In order to cover a narrow legal point, however, these philosophical references often occur out of context and distort the larger arguments made by the philosopher. 1. Philosophyas a source for prejudice. In early nineteenth century cases, the Court referenced philosophers to give foundational support for historical prejudices. For example, in cases concerning the property rights of Native Americans, the Court invoked political and moral philosophers to deny this mipority group their right to traditional lands. In Fletcher v Peck,19 the Court briefly cited Montesquieu and Adam Smith to justify its distinction between the Anglo-American conception of land and that of the Native Americans: "What is the Indian title? It is a mere occupancy for the purpose of hunting. It is not like our tenures; they have no idea of a title to the soll itself. It is overrun by them, rather than inhabited. It is not a true and legal possession. »20 In more modern cases, the Court has turned to philosophers when considering controversial issues of social dass and race. As white male dominance over the political process has become less accepted, defenders of the status quo have had to reach deeper into the philosophical tradition to justify their views. For exampIe, in Harper v Virginia State Board of Elections,21 the Court held that Virginia's poIl tax violated the Equal Protection Clause of the Fourteenth Amendment because wealth "is not gennane to one's ability to participate intelligently in the electoral process.»22 In a dissenting opinion, Justice Harlan defended the historical support for property qualifications for the franchise and cited Aristotle and Tocqueville for support.23

.. 10 US 87 (1810). '" Id at 121, citing Montesquieu, The Spirit of the Laws Book 18, ch 12 (describing the frequent stnfe that anses between peoples who have no "landed property"); Adam Smith, An lnquiry into the Nature and Causes of the Wealth of Nations Book 5, ch 1 (referring to nations of hunters as "the lowest and rudest stste of society" in which "there is properly neither sovereign nor commonwealth"). 21 383 US 663 (1966). 2Z Id at 668. '" Id at 685 (Harlan dissenting) (discussing the long-held view that people who own property "have a deeper stske in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and that the community and Nation would be better managed if the franchise were restricted to such citizens"), citing AristotIe, Poütics Books 3, 4 (Oxford 1885) (Jowett trans) (defining the concept of a "stste" and discussing the best forms of govemment); Alexis de Tocqueville, Democracy in America eh 13 at 199-202 (Knopf 1948). Here, Justice Harlan uses pelitieal theory to characterize the significanee of property ownership.

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Sexual reproduction and ethics: Plato supports abortion?

In recent cases involving changing sexual ethics, the Court has invoked traditional and easily recognized philosophical figures to support contested political positions. In Poe v Ullman/ 4 the Court dismissed achallenge to Connecticut's contraception statute because it did not involve a constitutional question.25 In his dissenting opinion, Justice Douglas made extensive use of philosophers, invoking both Kant and Mill, to defend the right of a doctor to discuss birth control options with a marned couple: These are [the doctor'sl professional domains into which the State may not intrude. The chronicles are filled with sad attempts of government to stomp out ideas, to ban thoughts because they are heretical or obnoxious. AB Mill stated, "Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion. JJ26

In perhaps the most disputed decision in recent history, the Court in its majority opinion in Roe v Wade 27 discussed the approval of abortion by some ancient Greeks. Although the Hippocratic Oath, still sworn by doctors today, provides that a doctor "will not give to a woman an abortive remedy,JJ26 the Court argued that the Oath was not widely accepted in Greek society and that both Plato and Aristotle supported abortion, at least prior to viability.29 The Court never explains why Plato and Aristotle should be considered authority for such a controversial moral and political issue, or how the support of philosophers provides a persua" 367 US 497 (1961). " Id at 508·09. .. Id at 514-15 (Douglas dissenting), citing John Stuart Mill, On Liberty of Thought anti Discussion, 43 Great Books 282. Justice Douglas also wrote, "Vie should say with Kant that 'It is absurd te expect to be enlightened by Reason, and at the same time to prescn1Je to her what side of the question she must adopt.' Leveling the discourse of medical men to the morality of a particular community is a deadening influence.~ 367 US at 514, citing hnmanuel Kant, Critique ofPure Reason, 42 Great Books 221. " 410 US 113 (1973). " L .Edelstein, The Hippocratic Oath 6 (Ares 1979). ,. Roe, 410 US at 131 (arguing that only the Pythagorean school of thought opposed abortion, while "[mlost Greek thinkers, on the other hand, commended abortion, at least prior to viabili~). The Court cites te Plato's Repubüc, Book V, 461; however, in this portion of the dialogue, Plato does not commend abortion prior te viability. Rather he discusses the importance of not having children beyond one's prime in life, explaining to Glaucon that those beyond their prime may have intercourse "only after they have been told to be especially careful never to let even a single foetus see the light of day, if one should be concoived." The Repubüc of Plato, Book V, 461c (BasicBooks 1968) (Bloom trans). While this acknowledges the occasional need for abertion, it is hardly a commendation ofit. The Court also cites Aristotle, The Politics, VII, 1335b 25.

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sive legal or institutional argument for the Court's expansion of privacy rights.30 Rather, the Court uses esteemed philosophers to legitimize a controversial perspective. By contrast, there were many persuasive legal arguments against recognizing a constitutional right to abortion. For instance, substantive due process arguably has no textual support in the Fourteenth Amendment Due Process Clause, and was at any rate severely discredited after the Lochner era.3i Furthermore, most states have historically probibited abortion. The Texas statute struck down in Roe was enacted in 1857, and had remained virtually unchanged until the Court's decision in Roe.32 This trend of referring to philosophers for support in controversial cases has continued in recent cases on sensitive gender issues. In Barnes v Glen Theatre, Inc,33 the Court upheld the constitutionality of a public indecency statute requiring exotic dancers to wear panties and g_strings. 34 Justice White's vociferous dissent argued that such astatute violated the First Amendment, and indeed that "Aristotle recognized in Poetics that the purpose of dance is 'to represent men's character as weIl as what they do and suffer.'»35 While Aristotle's views on the human qualities of dance might be relevant to public discourse on the subject of indecency statutes, Justice White failed to explain how wearing a gstring detracted from the expressive suffering of exotic dancers, or how bis views were relevant to whether the indecency statute violated the First Amendment. In achallenge to the Virginia Military Institute's ("VMI") single-sex model of education, Justice Ginsburg, writing for the Court, defended the right of women to be admitted to that prestigious institution.36 Justice Ginsburg cited a contemporary scholar for the proposition that even in Plato's society, "women's native ability to serve as guardians was not seriously ques,. This kind of superficial use of philosophers may have an unanticipated twist: the average citizen may recognize Plato and Aristetle as respected philosophers, but may not be aware ofthe reigning sexual ethics of ancient Greece that included the almost complete subjugation of women and widespread homosexuality, two ideas out of step with mainstream American culture. When the Court refers te philosophers' moral views out of the context of their culture and philosophical works, it might be gnilty of rhetorical dishonesty. 31 See, for example, Cass R. Sunstein, Lochner's Legacy, 87 Colum L Rev 873, 874 & un 6-8 (1987) (discussing "received wisdom" that Lochner was "wrong because it involved 'judicial activismm ). 32 Roe, 410 US at 175-77 (Rehnquist dissenting) . ... 501 US 560 (1991). '" Id at 565. " Id at 587 n 1 (White dissenting). 36 United Stales v Virginia, 518 US 515, 116 S Ct 2264, 2276 (1996).

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tioned.1>37 Justice Ginsburg further elaborated that the only real question about women serving as military defenders in the Greek army concemed physical training, which customarily occurred in the nude.38 There are a number of aspects in which the Court's reliance on Plato is suspect. First, one could challenge the historical accuracy of Justice Ginsburg's claims. Perhaps Plato never questioned a woman's ability to serve as a guardian because in the maledominated Greek society, in which women played no political or social role outside of the home, the idea of a woman serving in such a highly visible and prestigious position was unimaginable. Second, the Court does not use Plato's philosophical ideas, but only his views of gender relations as interpreted by a modem scholar. This once-removed interpretation is less persuasive than a direct reading of Plato, because the scholar lacks the intellectual authority possessed by a philosopher of Plato's stature. Even if the historical characterization is accurate, Plato's ideas have more relevance to the social and political climate of ancient Athens than to modem American judicial decision making. Finally, the Court does not explain how Plato's views on single-sex military education are germane to the integration of VMI, nor how the guardians of Athens are analagous to the officers being trained at VMI. These examples illustrate the increasing tendency of the Court to use philosophers to support contested political positions. In contrast, the next Part considers in detail one of the most high profile failures of philosophy to serve as a source forthelaw. II.

THE JUDICIAL AND PHILOSOPHICAL RIGHT TO DIE

A comparison of Chief Justice Rehnquist's opinion in Glucksberg and the Philosophers' Brief serves as a good case study in the marked differences between philosophers andjudges in both their goals and their methods of reasoning. After outlining the procedural history in Glucksberg, Chief Justice Rehnquist writes: We begin, as we do in all due-process cases, byexamining our Nation's history, legal traditions, and practices. . . .In almost every State-indeed, in almost every western democracy-it is a crime te assist a suicide. The States' assisted31 Id at 2287 n 20, citing Beryl J . Levine, Closing Comments, 6 L & Inequality 41, 41 (1988). Note that for this point Justice Ginsburg did not draw upon the original Platonie text, but rather referenced the interpretive cornrnents of arnodem philosopher. " Virginia , 116 S Ct at 2287 n 20. For Plate's full text on the equality of wornen, see 2 The Dialogues ofPlato Book V (Oxford 4th ed 1953) (Jowett trans).

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suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life.39 Chief Justice Rehnquist cites numerous cases on suicide in which the Court has relied on historical practice.40 He proceeds, "More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.n41 Basing his arguments on historical understandings and precedent, Chief Justice Rehnquist elaborates on the significant religious, social, and political traditions against the taking of one's own life. Although the Court appropriately considers the changing conditions of modem society, it does not retreat from the historical prohibition against suicide.42 Chief Justice Rehnquist concludes that the Constitution did not contemplate the protection of a right to physician-assisted suicide.43 Further, Chief Justice Rehnquist's historical arguments advocate judicial restraint based on institution al limitations. The Court will uphold "substantive" due process rights only when required by history and tradition. Limited institutional authority should constrain the Court from deciding a moral and political question such as physician-assisted suicide.44 Chief Justice Rehnquist did not approve of the State's ban on assisted suicide per se, but rather used history and tradition to show that assisted suicide was not a protected right under the Fourteenth Amendment 45 He argued that the debate over assisted suicide-one with ,. 117 S Ct at 2262·63 (citations omitted) (emphasis added) . .. Id ("[O]pposition to and condemnation of suicide-and therefore, of assisting suicide-are consistent and enduring themes of our philosophical, legal, and cultural heritages."). " Id at 2263 (referring to Henry de Bracton and William Blackstone, who wrote in the thirteenth and early nineteenth centuries, respectively). " Id at 2267-68 . .. Id at 2271 . .. For a good discussion of the institutionallimitations of courts, see Cass R. Sunstein, From Theory to Practice, 29 Ariz St L J 389,400-04 (1997). Sunstein notes that: [C]ourls generally seek, because of their own understanding of their limited capaci· ties, to offer low·level rationales on which diverse people roay converge. This is so especially when the consequence oftheoretical ambition would be to invalidate the outcomes of democratic processes; it is here that the Court properly proceeds cautiously, again because of its understanding of its limited capacities in thinking about philosophical abstractions. Id at 40l. " 117 S Ct at 2271 ("The history ofthe law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts te permit it. That being the case, our decisions lead us te conclude that the asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.").

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deep moral and political implications-should continue and be resolved through democratic deliberation: "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suieide. Our holding permits this debate to continue, as it should in a democratic society.1146 In contrast to the Court in Glucksberg, the Philosophers' Brief asserts that individuals have a protected liberty interest to make certain decisions for themselves.47 For this weighty proposition the philosophers begin with dicta from the highly controversial decision in Planned Parenthood v Casey: "At the heart of liberty is the right to define one's own concept of existence, of meaning, ofthe universe, and ofthe mystery ofhuman life."48 The philosophers strive to view the problem of assisted suicide from its rational foundations, as an individual question of conscience. Seen in this light, the Due Process Clause of the Fourteenth Amendment protects the liberty interest of certain life decisions. The philosophers argue, "Such deeply personal decisions pose controversial questions about how and why human life has value. In a free society, individuals must be allowed to make those decisions for themselves, out of their own faith, conscience and convictions. 1149 Concededly, the philosophers do attempt more conventional legal arguments. For example, they diseuss the Court's expansion of privacy rights in Casey50 and Cruzan v Missouri Department of Health,51 and also the states' interests in regulating suicide.52 Despite these arguments, the underlying focus of the brief is moral, not legal. The interest of the philosophers is stated as their "respect for fundamental principles of liberty and justice, as weIl as for the American constitutional tradition."53 It is significant that the fundamental principles precede the philosophers' regard for the American tradition. The approaches taken by the Supreme Court and the philosophers to assisted suicide could not be more different. Chief .. Id at 2275. ., 1996 WL 708956 at *5• .. Id, discussing Casey, 505 US 833, 851-52 (1992) (holding that a woman has a right to have an abortion, and that right cannot be unduly burdened)• .. 1996 WL 708956 at *5. .. Id at *8-9, citing CC1$ey, 505 US at 851-52• .. 1996 WL 708956 at *9-12, citing Cruzan, 497 US 261, 287-89 (1990) (holding that a competent person has a constitutionally protected liberty interest in refusing unwanted treatment). !2 1996 WL 708956 at *12-20. .. Id at *2 (emphasis added).

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Justice Rehnquist relies on history and a long social and legal tradition forbidding suicide, arguing that the Due Process Clause protects those fundamental rights and liberties that are "objectively, 'deeply rooted in this Nation's history and tradition."'54 The philosophers advance only an abstract notion of liberty and do not offer a contrary historical narrative. Instead they put forward their own moral and political ideas, derived from a rational inquiry into the nature of an individual's liberty interest, and supported by only the weakest judicial authority. Perhaps the philosophers avoid history because another historical narrative does not exist; it seems clear that the Anglo-American tradition, and indeed, most of Western tradition, remains solidly against suieide. Given the importance of history and tradition in defining what constitutes a "fundamental right" under the Due Process Clause of the Fourteenth Amendment,55 it seems remarkable that the philosophers made no argument for their position from history and tradition. These salient differences in tone and focus exemplify the divergence between philosophers and judges and are further explored in the next Part.

m.

AN INQUIRY INTO THE JUDICIAL PROCESS

The relationship between philosophy and judicial decision making raises an important question about the nature of judicial activity. What is it that judges do when they decide cases? How do they reach their conclusions? Perhaps most importantly, what sources of authority should and do provide support for judicial opinions'fiG The use of philosophy by the Court relates to pressing concerns among legal scholars about the nature of legal study and legal reasoning. This Part first shows that law is not completely autonomous and so philosophy might have a role to play in the law. Next, it argues that the use of philosophy by courts should be limited, because such use tends to correspond with po50 Glucksberg, 117 S Ct at 2268, citing Moore u East Cleueland, 431 US 494, 503 (1977) (plurality opinion)• .. Glucksberg, 117 S Ct at 2268• .. In response to some of these elusive questions, Justice Belliamin Cardozo tried to articulate what judges do when they decide cases but recognized that there was little hope of stating a persuasive formula. He wrote:

What is it that I do when I decide a case? To what sources of information do I appeal for guidance? . .. If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do Ireach the rule that will make a precedent for the future? .. . At what point shall the quest be halted by some discrepant custom, by some consideration ofthe social welfare, by my own or the common standards ofjustice and lUorals? Benjamin N. Cardozo, The Nature orthe Judicial Process 10 (Yale 1964).

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litical judgments of the kind best left to the democratically accountable legislatures. A. Philosophy as a Legal Source

In order to find a place for philosophy in the law, it is important to determine which sources best support judicial decision making. Christopher LangdelI, one of the great avatars of formal legal education, believed that knowledge and understanding of the law could be derived scientifically from legal sources such as cases and statutes. 57 This kind of legal positivism left little room for other disciplines in legal education and emphasized the autonomy of the law. Langdell's perspective has suffered greatly in the past thirty years, as disciplines such as economics, history, and philosophy have come to play a larger role in legal scholarship. Law and economics scholars such as J udge Richard Posner argue that there has been a decline in the autenomy of the laW.58 The criticallegal studies movement similarly emphasizes the lack of independence in the law and the law's subordination to politicS.59 Langdell's vision, however, is not dead yet. In the wake of new legal movements like law and economics and critical legal studies, scholars such as Owen Fiss lament the "death of the law."60 Fiss has argued that the law, through its particular mode of reaching decisions, has a unique role in ascertaining and promoting public values. 61 Other so-called neotraditionalists also maintain law's autonomy from other disciplines and argue for the unique and special nature of legal reasoning. 62 This Comment supports a softened version of the neotraditionalist view, namely that law is semi-autonomous. The law might reference other disciplines, but primarily it should retain its distinct methods and forms of reasoning. Richard Fallon re., Although Langdell's views on legal eduestion have been widely influential, and although he is eredited with heginning the esse law method of legal teaehing, Langdell never formally presented his views. Other seholars, however, have discussed them. See, for example, Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 170-74 (Belknap 1993). .. See Posner, 100 Harv L Rev at 761 (cited in note 18). .. See, for example, Roherto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harv L Rev 561, 563-66 (1983) (empbasizing the politieal nature of the law). .. Owen M. Fiss, The Death of the Law?, 72 Cornell L Rev I, 16 (1986). • 1 Id at 15-16 ("Vie need publie morality to have law, true, but even more, we need law to have a publie morality."). " See, for example, Charles Fried, The Artifieial Reason of the Law or: What Lawyers Know, 60 Tex L Rev 35, 38 (1981) (arguing that "law is a distinct subject, a branch neither of economics nor of moral philosophy, and that it is in that subject that judges and lawyers are expert"); Fiss, 72 Cornell L Rev at 18 (cited in note 60).

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flects a similar view when he describes how courts really operate: "Legal reasoning is distinctively reasoning about past political decisions and their current implications within a set of interpretive conventions that is in some ways peculiar to the law. Even when it borrows from other disciplines, law is a distinctive practice, with its own reality-making set of concepts, conventions and expectations.n63 Thus, under this approach, nonlegal theory can supplement the law, but it does not supplant its particular form of reasoning. Fallon argues that judges "commonly employ non-legal theories in their opinions to justify or legitimate their decisions. 1l64 The empirical evidence presented in Part I supports this point: the Court uses philosophers te legitimize or justify its decisions, and dissenting justices reference philosophers to lend intellectual, and often moral, support for their minority positions.65 This use of philosophers is often shallow and incomplete, because the Court does not engage substantive arguments. Rather, the Court references philosophers to generate political approval.66 Fallon argues that such "shallow" philosophical arguments might not offend the standards of acceptability in judicial decision making for two reasons.67 First, the law is a practical discipline and cases must be resolved relatively quickly, without the exacting attention to detail demanded by a philosopher.68 More importantly, legal authority often tries to mask tensions in the underlying law. Judicial opinions selectively structure precedent, statutory language, and historical understanding to suggest a single necessary outcome. Judicial decisions ought to be reassuring, and so it is tolerable that "[s]ometimes a shallow economic or philosophical analysis helps to buttress imposition of a rule dictated by precedent, when a deeper analysis would sow doubts.»69 The empirical evidence suggests that the Supreme Court implicitly adopts this view of using philosophy in its opinions. That is, the Court will sacri.fice philosophical rigor to promote rule of law values such as clarity, consistency, and consensus. This superficial use lends

" Richard H. Fallon, Jr, Non·Legal Theory in Judicial Decisionmaking, 17 Harv J L & Pub Pol 87, 88·89 (1994) (emphasis in original). Fried also argues that law is only a "relatively autonomous subject," but bis view of the use of nonlegal theory is more skeptical than Fallon's. See Fried, 60 Tex L Rev at 38-39 (cited in note 62). .. Fallon, 17 Harv J L & Pub Pol at 89-90 (cited in note 63). " See Part JA .. See Part I.B . ., Fallon, 17 Harv J L & Pub Pol at 93-96 (citod in note 63). .. Id. .. Id at 94.

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support for the idea, further discussed in the next Part, that the Court uses philosophers as a surrogate for policy making. B. Congressional References to Philosophers The Court's increasing use of philosophers as a source may reflect a shift tewards tackling more political issues. Contentious moral and political questions should be resolved primarily by Congress because of its constitutionally granted legislative powers,70 its democratic pedigree, and its deliberative safeguards.71 One thus might expect Congress to make reference to philosophers with greater frequency than the Court simply because of the political and rhetorical nature of legislative activity. Empirical evidence supports this intuition: a search of the Congressional Record database in Westlaw, which starts in 1985, found 7574 references to the earlier list of philosophers.72 Removing the names Mill and Adam Smith, which often recur in forms irrelevant to this inquiry, still results in 2981 references over a span of only thirteen years.73 By contrast, the Court has made only fortyseven such references in its entire history.74 Of course, the Congressional Record and Supreme Court opinions differ in both their methods and purposes. The Congressional Record reflects the self-conscious deliberative process of politicians, who may only be grandstanding for C-SPAN, or might have edited their speeches before inserting them into the Record. On the other hand, Supreme Court opinions are binding decisions of law, carefully drafted within certain boundaries and with reference to other cases. They are legal authority, not just debates and deliberations. Furthermore, the Congressional Record takes up thousands of pages each year, compared to the few volumes of the Supreme Court Reporter. The differences between the two sources make difficult any serious statistical comparison. Never7. US Const, Art I, § 1 ("All legislative Powers herein granted shall be vested in a Con· gress ofthe United States."). 71 The Framers were very concerned abeut ensuring a certain deliberative process; hence, they established structures such as a bicamerallegislature and presentment. See, for example, Federalist 62, 80 (Madison), in lsaae Kramniek, ed, The Federalist Papers 364-69, 445-50 (Penguin 1987). n See note 5. n Congress's use of philosophers appears, at least on abrief survey, to be just as superficial as the Court's. For instance, in a discussion of the Politieal Freedom in China Act of 1997, Congressman Hunter profoundly states, "I thank . . . all my celleagues who have worked so hard to see that we not only export goods from this eountry, but that we export goodness and morality. De Tocqueville said America is great beeause Ameriea is good: Proceedings on the Political Freedom in China Act, HR 2358, 105th Cong, 1st Sess, in 143 Cong Rec H 10071 (Nov 5, 1997). ,. See note 6 and aecompanying text.

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theless, the thousands of citations in the Congressional Record dwarf the few dozen citations hy the Supreme Court. This difference may reveal that philosophers frequently serve as a legitimate source for legislative deliberation, but rarely serve the same function in judicial opinions. C. Policy Making in the Court The Court's more frequent use of philosophers as a "source" in recent opinions may indicate an increasing willingness to address policy issues,'5 for which traditional legal arguments are not always sufficient. In their work on legal positivism, Frederick Schauer and Virginia Wise discuss the increasing use of nonlegal sources by the COurt.76 An initial count of citations to nonlegal sources revealed that "there was no significant increase in the Court's citation of nonlegal sources from 1950 through 1990, but that starting in 1991, there has been a substantial and continuing increase in the Court's citation of nonlegal sources. ~7 Schauer and Wise note that a legal source can be viewed as a social construct-a choice of how we define the laW.78 Changes in the information sources used by courts willlikely have ~portant consequences for the nature of law and how society views it. 79 What counts as law depends partially on what the Court determines to be appropriate sources for the law. Broad social and political decisions often require courts to use nonlegal sources like philosophy; thus, the increasing use of nonlegal sources may indicate that courts are adjudicating more social and policy issues. Significant overlap between the sources of authority and the issues addressed by the judiciary and the legislature diminishes the distinctions between them, and makes the social function of the law less distinct. If philosophy traditionally serves as an " See Part I.B. " Frederick Schauer and Virginia J . Wise, Legal Positivism as Legal Infonnation, 82 Comell L Bev 1080, 1105-08 (1997). " Id at 1108. Schauer and Wise counted (rather than sampled) citations to nonlegal materials by the Supreme Court for certain select years for their study. '" Id at 1093-94. They explain: [T]he idea of a legal source is more figurative than literal, and largely a construct designed to capture the idea of contingent human and social choice as the essential feature oflawness. If, for example, a society were to empower its legal decisionmakers to make decisions on the basis of their best aIl-things-considered moral or policy judgments, then the social decision to so empower its decisions would be the relevant social seurce, even though what emerged from that source was a domain of the legal that was indistinguishable from a larger moral or policy domain. Id.

,. Id at 1081-83.

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authoritative source for ]egislators, but not for courts, the increasing use of philosophy by courts will have consequences for the nature of the law.80 Thus, the next Part considers why courts should hesitate to use philosophers in their opinions.

IV. THE JUDGE: NEITHER PmLOSOPHER NOR KING Although law has traditionally been autonomous from other disciplines, nonlegal sources and methods, including philosophy, have begun to influence scholars, lawyers, and even judges. Aß discussed earlier, Supreme Court justices have been referencing philosophers more frequently, especially when dealing with controversial political issues. In response to these changes in the legal Zeitgeist, this Part shows how philosophy and judicial decision making are different enterprises, and argues that judges should be wary of philosophizing in their opinions. The fundamental differences between judges and philosophers revolve around three characteristics of judicial decision making. First, judicial decision making is a practical activity in which the judge must resolve a private or public dispute and reach a definite conclusion. Acourt's decision has real-world consequences that academic or philosophical arguments do not have. Second, courts face institutional constraints; they operate within a constitutional system of checks and balances and against a traditional background understanding of courts as institutions empowered only to decide a certain class of cases and controversies. Finally, courts in the Anglo-American common law system are bound by precedent and make their decisions under a strong presumption of stare decisis. The very nature of judicial decision making involves a nuanced understanding of social and political traditions, because the law operates only within this complex bistorical framework. This Part demonstrates how these three characteristics of judicial decision making distinguish it starkly from philosophy and allow philosophy only a limited role in the legal process. A

Practical Choices and Legal Consequences

The differences between the philosopher and the judge are rooted in Aristotle's distinction between philosophical and practical wisdom. The philosopher aims to understand those truths .. See id at 1095 (noting that if lawyers use the same information set as others, their use would indicate substantial overlap between the legal and nonlegal). The overlap in sources between the Court and the legislature might indicate a separation-of-powers problem because constitutionally, judges should not be policy makers.

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that are universal and often abstracted from the particulars of human experience. On the other hand, the man of practical wisdom, like the judge, aims to understand political truths that involve deliberation about man.81 Aristotle believed that practical wisdom had to be concerned with more than universals because "it must also recognize the particulars; for it is practical, and practice is concerned with particulars. »82 This Part will consider the works of three philosophers concerned with legal issues and will show how their approaches to the law reflect inherent tensions between legal and philosophical purposes and concerns. Even though the life of the law nright be experience and not 10gic,83 philosophers seeking to influence the law often do so from a theory-oriented, foundational perspective. Law lacks, according to some scholars, a serious way of explaining its judgments on moral and political issues. Ronald Dworkin, John Rawls, and Martha Nussbaum all share some version of this view. Dworkin wants judges to interpret the law te make it the best that it can be,84'which means appealing to broad notions ofthejust and the right. In a recent article, Dworkin praises theory and argues for its essential role in legal decision making.85 Dworkin delights in being a theorist in order to distinguish himself from what he calls the "Chicago 8chool"-a category plastic enough to include both Richard Posner and Cass 8unstein, despite their many differences. AB a philosopher, Dworkin wants te defend the "metaphysical" view from the onslaught of "antitheorists."86 Dworkin admits that Judge Posner gives valuable advice-"not to lock out strange ideas, te attend to the consequences of decisions, and otherwise to conduct our intellectual and legal activities in a sage way."P!1 But as a philosopher, Dworkin is careful to point out that"this is not the stuft' on which a jurisprudence is built."88 Although he recognizes the value of practice, for Dworkin, 'jurlsprudence" must be ., See Aristotle, The Nichomachean Ethics, Book VI, eh 7, 1141b 15-20 (Oxford 1925) (Ross trans). 82 Id at Book VI, 7, 83 See Oliver WendeIl Holmes, The Common Law 1 (Little, Brown 1951). .. Ronald Dworkin, Laufs Empire 1-11 (Belknap 1986). .. Ronald Dworkin, In Praise of Theory, 29 Ariz St L J 353, 355 (1997). In response, Judge Posner argues that Dworkin establishes only one view of theory and Posner's pragmatic view can be "theorized," just not universalized into an abstract system. See Richard Posner, Conceptions of Legal 'Theory#; A Response to Ronald Dworkin, 29 Ariz St L J 377, 378-79 (1997). The correct distinction might not be between theory and practice, but rather between abstract and pragmatic reasoning. .. Dworkin, 29 Ariz St L J at 355 (citod in note 85). '" Id at 364.

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based on more broad ranging metaphysical ideas. His view of theory may not be the exclusive or correct one, but it exemplifies areal distinction between prevalent theoretical, philosophical methods and more practicallegal reasoning. John Rawls implicitly shares Dworkin's perspective on the theory/practice divide. In his new work Political Liberalism, Rawls redefines his "justice as fairness" theory to account for the more practical concerns of pluralism in a deliberative democracy.89 His work is now "political, not metaphysical" and in being so, he says it "stays on the surface, philosophically speaking. n90 Rawls considers bis interest in the political and practical to be important, but philosophically shallow. In line with other philosophers seeking to influence the law, Martha Nussbaum strongly advocates the use of philosophy in legal education.91 She argues that lawyers and judges could usefully apply more theoretical rigor to their considerations of moral issues such as justice, equality, liberty, and sexuality.92 Nussbaum's understanding of philosophy's utility comes from an attention to the concepts of justice and equality. She argues that the specifically conceptual nature of phllosophical thinking can bring a fresh and deep perspective to legal training. Nussbaum's perspective may be the most constructive, not only because it explains the differences between philosophy and law, but also because it shows how philosophy can inform legal tbinking. The institutionallimits in the law point out the differences between the two enterprises, but do not wholly separate them. She writes: Judges are never free to go for the best. They are constrained by history, by precedent, by the nature of legal and political institutions. This means that any philosophy that is going to be of help to the law must be flexible and empirically attentive, rather than prissy and remote.93 .. John Rawls, Political Liberalism xvi-xx (Columbia 1996). .. John RawIs, Justice os Fairness: Political Not Metaphysical, 14 Phi! & Pub Mfairs 223, 230 (1985). See also Michael Sandei, Democracy's Discontent: America in Search of a Public Philosophy 17-19 (Belknap 1996) (discussing minimalist liberalism that requires bracketing moral and religious vlews in order to have better democratic deliberation about justice and rights). " See, for example, Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 Stan L Rev 1627, 1630 (1993) (arguing tbat several areas oflegal education could benefit from the introduction ofphilosophy). n Id ("Judicial opinions are fuIl of such [theoretical] claims. Yet the discussions rarely show even tbe most elementary awareness of the rigorous work tbat philosophers have been doing, work that would very likely contnoute to the clarification of the judge's or lawyer's own process ofreasoning abeut these matters."). .. Id at 1643.

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Perhaps most professional philosophy is prissy and remote, but down-to-earth philosophical insights94 can undoubtedly benefi.t legal understanding. Dworkin, Rawls, and Nussbaum all argue that philosophy's contribution to the law comes from its theoretical rigor and conceptual ambitiousness. But practical wisdom and deliberation form the main activities of a judge, who must focus on the particular facts and circumstances of a given situation in order te reach a conclusion in accordance with the law. 95 Judicial decision making does not search for universal answers. Charles Fried argues that analogy and precedent come to the service of the law at the point where philosophy cannot provide answers to particular questions: "Analogy and precedent are the stuft' of the law because they are the only form of reasoning left to the law when general philosophical structures and deductive reasoning give out, overwhelmed by the mass of particular details. 7796 Philosophy can help lawyers and judges understand concepts such as causation, free will, and intention; however, abstract theory can only go so far in answering highly particular claims.97 Furthermore, while human experience may be relevant to philosophical inquiry, some philosophers, like Dworkin, will remain unmoved in their opinions and theories by the ordinary world of politics and practical matters. Judge Posner criticizes this insensitivity to particulars: "Ai; illustratod by the Philosophers' Brief that so strikingly fails to engage the many difficult institutional issues raised by its proposal of a constitutional right to physician-assisted suicide, there is little texture to Dworkin's

.. "Down-to-earth" philosophical insights might include more political philosophy, or perhaps even some economic theory. These ideas, often invoked by the Court in the nineteenth century, articulated principles for republic government and contained insights relevant to legal problems. See notes 13-14 and accompanymg text. .. This nuanced and subtle approach is not necessarily unique to judicial decision making. Edmund Burke argued that the science of government was practical and therefore required both experience and caution. Edmund Burke, &flections on the Revolution in France 53-54 (Hackett 1987) (Pocock, ed) ("Tbe science of government being therefore so practical in itself and intended fer such practical purposes-a matter which requires experience, and even more experience than any person can gain in his whole life •••-it is with infinite caution that any man ought to venture upon pulling down an edifice . .. or on building it up again without having models and patterns of approved utility bÖfore his eyes."). .. Fried, 60 Tex L Rev at 57 (cited in note 62). See also Edward H_ Levi, An IntroductEon to Legal &asoning 1·6 (Chicago 1949) (explaining that legal reasoning occurs primarily by example, and this is how new social ideas enter the Iaw) . ., Fried proposes a metaphor that philosophy descends from on high but stops short of reaching the ground. The "task of the law [is] to complete this structure of ideals and values, to bring it down to earth." Fried, 60 Tex L Rev at 57 (cited in note 62).

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analysis oflegal issues. 1798 Theory-oriented philosophy has limited application to the law and cannot account for the particularities of human experience. As Hamlet justly noted, "There are more things in heaven and earth HoratiolThen are dream't of in your philosophie.»99 As a practical enterprise, the law must be sensitive to consequences. While grand theories of justice, fairness, and individual rights might inform a judge's jurisprudence, all of these must still be evaluated in light of the ultimate decision-"consequences are never irrelevant in law.»1oo Consequences in philosophy, however, do not have the same practical or moral force. What do metaphysics and epistemology have to do with concrete results? Not very much. 101 While there may be particular philosophies that are consequentialist, such as utilitarianism, the philosophical enterprise is a deontological one that aims at principles, not at ends. 102 It looks at human goods from a perspective that seeks to transcend the limits of human experience, to articulate, as the Philosophers' Brief did, "fundamental principles of liberty and justice. mo3 Unlike much of professional philosophy, there cannot be any grand truths in the law because it does not seek to establish an overarching theory-there is no "metanarrative" here. 104 Cass Sunstein has frequently argued that judges should avoid recourse to high level principles when deciding cases: J udges ordinarily work with principles of a low level of theoretical ambition. ... [L]ike almost all of us, judges are not trained philosophers. They know that if they try to resolve large philosophical issues, they may blunder badly. In these .. Posner, 29 Ariz St L J at 380-81 (cited in note 85). While against Dworkin's philosophica1 efforts to influence the Court, Judge Posner frequently maltes nonlegal references in bis own opinions. .. William Shaltespeare, Hamlet, I v Ins 166-67 (Oxford 1964). ''''Richard Posner, The Problems of Jurisprudence 148 (Harvard 1990). Posner argues that "at some point the outoome that lacks politica1 sense, that represents bad policy, that has distinctly untoward anticipated consequences, may by virtue of that fact not be the outoome required (permitted?) by law." Id at 145. 10' See Immanuel Kant, Grounding for the Metaphysics of Morals § 1 at Ins 399-400 (Hackett 1981) (J.W. Ellington trans) ("The moral worth depends, therefore, not on the realization of the object of the action, OOt merely on the principle of volition according to wbich ... the action has been done."). '0> Even utilitarians must malte a principled va!ue choice that individua!s ought to maximize utility or that the politica1 system should maximize overall socia! utility. '''1996 WL 708956 at *2 (emphasis added). ,.. In this regard, the traditiona1ism of the law might be seen as very postmodern, since it possesses what Jean-Francois Lyotard considered the defining feature of the postmodern: "an incredulity toward metanarratives." Jean-Francois Lyotard, The Postmodern Condition xxiv (Minnesota 1984) (Bennington and Massumi trans).

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circumstances judges try,. to the extent that they can, to bracket large-scale issues of the good and the right .... This point helps explain the legal culture's distrust of philosophical abstractions. I05 Large-scale philosophical questions do not belong in an institution primarily concemed with reaching practical results about particularized disputes. Thus, in a democracy, it makes sense for courts to bracket larger issues of the "good" in favor of more concrete decisions. B. Structural and Institutional Limits Courts and judges operate within a political structure established to promote democratic accountability and the separation of powers. The Supreme Court has a certain prescribed sphere of influence-to decide a certain class of cases and controversies-and has no legitimate authority to step beyond these boundaries. I06 While history has followed Chief Justice John Marshall's famous statement that "[i]t is emphatically the province and duty of the judicial department to say what the law is,"I07 there is still a strong presumption against judicial policy making. Such authority properly resides in the legislature, the politically accountable branch of govemment 108 A judge might have specific policy preferences regarding the good and the just, but it is not within his assigned role to make decisions based on these factors. The legislator, however, can reflect his philosophical preferences and prejudices in law making because he is democratically accountable for his decisions. 109 Thus, it is appropriate that in the past thirteen years Congressional debates and speeches, as recorded in the Congressional Record, has referenced philosophers almost

'06 Sunstein, 29 Ariz St L J at 391-92 (cited in note 44). ""US Const, Art IlI, § 2 ("The judicial Power shall extend to a11 Cases, in Law and Equity, arising under this Constitution, the Laws ofthe United States, and Treaties made, or which shall be made, under their Authority . •. land] to Controversies between two or more States;-between aState and Citizens of another State;-between Citizens of different States ... ."). 10. Marbury v Madison, 5 US (1 Cranch) 137, 176 (1803). ,'" Although a strong supporter ofjudicial review, Marshalliater said in discussing the National Bank, "where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." McCulloch v Maryland, 17 US (4 Wheat) 316, 423 (1819). 109 Fried makes a related point: the discussion of moral rights and philosophical values should he left for individuals engaged in the democratic process. If untrained judges can make philosophical judgments, then so can ordinary citizens, and they should be allowed to do so through the political process. Fried, 60 Tex L Rev at 37-38 (cited in note 62).

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twenty times more frequently than the Court has in its entire history.110 Traditional methods of legal reasoning also restrain judges. Judges do not apply previous legal rules and decisions scientifically, but rather are constrained by a whole network of institutional factors and considerations. In discussing the Court's opinion in Brown v Board of Education,111 Owen Fiss, a strong proponent ofthe autonomy oflegal reasoning, argues that the Justices consider the role of the state, and the place of public education in particular, in the life of the nation and weigh the evidence developed at trial on the impact of segregative practices.... In sum, the justices are disciplined in the exercise of their power. They are caught in a network of so-ca1led "disciplining rules" which, like agrammar, define and constitute the practice of judging and are rendered authoritative by the interpretive community of which the justices are part. 112 Although Brown arguably went against the historical understanding of the Fourteenth Amendment, most commentators, including conservative ones, consider the case to be rightly decided because it responded to changes in social and political realities. 113 The Court faces limits and checks on its power by what has been decided in earlier cases and by what is within socially and politically acceptable reasoning. Also, without the power to execute the law, the Court must conßne itself to hearing justiciable cases or controversies in order to protect its political capital.l14 The judge

"'See Part III.B. 347 US 483 (1954). "'Fiss, 72 Cornell L Bev at 11 (ci+.ed in note 60). See also Owen M. Fiss, Objectivity and Interpretation, 34 Stan L Rev 739, 762·63 (1982) (argtring that objective boundaries lirnit the possible legal interpretations of a text). '''See, for example, Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va L Bev 947, 952 n 16 (1995) ("Such is the moral authority of Brown that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited."). 11. For example, under the well-established political question doctrine, the Court has declined to hear cases that (1) lack judicially manageable standards and (2) have been constitutionally committed to another branch. See, for example, Ni:ton v United States, 506 US 224, 237-38 (1993) (holding that the Court could not review the Senate's choice of procedure in impeachment proceedings); Goldwater v Car/er, 444 US 996, 1002-03 (1979) (Rehnquist concurring) (asserting that a dispute between the Executive and Legislature over the President's power to terminate a treaty was unreviewable as a political question); Baker v Carr, 369 US 186, 210-17 (1962) (establishing the modem beundaries of the political question doctrine). 111

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must rely on his particular legal knowledge and expertise-no amount ofphilosophical expertise can trump this. ll5 The structure of the courts and our historical understanding of the judicial system also limit the judge. He cannot address an issue until it comes before lrim through the initiative of individuals or government prosecutors. The well-established doctrine of standing prevents parties from trying cases in which there is no injury or in which courts cannot provide an adequate remedy.116 Mootness and ripeness ensure that there is an extant, concrete, and well-formed harm for the courts to address. 117 AlSo, the Supreme Court has historically refused to issue "advisory opinions," even upon the request of other branches of the government.118 These structural and doctrinal safeguards constrain judicial activism. Moreover, the Court's powerful institutional authority does not translate into intellectual authority. Charles Collier argues that Supreme Court opinions are not philosophical works and do not persuade intellectually.119 Judges can rule on the matters be"'When James lasserted that he could remove cases from the law courts and try them personally since he possessed philosophical expertise, Chief Justice Coke responded: lT]he King srud, that he thought the law was founded upen reason, and that he and others had reason, as weU as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with exceUent science .•. but His Majesty was not learned in the laws of bis reaJm of England, and causes which concern tbe life, or inheritance, or goods, or fortunes ofhis subjects, are not to be decided by natural reason but by the artificial reason and judgment oflaw, which law is an act which requires long study and experience. Prohibitions Del Roy, 12 Coke Rep 63, 65, reprinted in 77 Eng Rep 1342, 1343 (KB 1607), cited in CharlesM. Yablon,Law andMetaphysics, 96 Yale LJ 613, 614 n 4 (1987). "" See Lujan v Defenders ofWildlife, 504 US 555, 560-61 (1992) (requiring, for constitutional standing, irijury in fact to the plruntiff, causation by the defendant, and redressability). "'See Laird v Tatum, 408 US I, 13-14 (1972) (dismissing a suit for lack of ripeness that aJIeged unlawful surveillance activity against the army). See generally Note, The Mootness Doctrine in the Supreme Court, 88 Harv L Rev 373 (1974). 118 In 1793, the justices ofthe Supreme Court respectful)y declined to answer President Washington's questions about American neutrality in the war between England and France, saying "the three departments of the government ... boing in cert!Ün respects checks upon each other-and our being judges of a court in the last resort-are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions aUuded to." Richard H. Fallon, Jr., Daniel J . Meltzer, and David L. Shapiro, Hart and Wechsler's The Fefkral Courts and the Federal System 92-93 (Foundation 4th ed 1996). "' Charles W. Collier, The Use and Abuse ofHumanistic Theory in Law: &eramining the Assumptions of Interdisciplinary Legal Scholarship, 41 Duke L J 191, 221 (1991). "The fact that lthe justices of the Supreme Court] have ... 'institutional authority' simply obscures the fact that they do not have 'intellectual authority.' . _ . lT]hese simple institutional facts malte inherently implausible any attempts to attribute grand, philosophical doctrines to the judiciary." Id.

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fore them, but their independent philosophical opinions on justice, sex equality, or free will have no particular weight. The justices draw their status and influence from their institutional position. Philosophers, on the other hand, have neither political nor institutional authority. All of the elegant and erudite essays in The New York Review of Books can be written and read without much real-world consequence. Dworkin can explain his views on assisted suicide, but unless the Court takes up these ideas and incorporates them into adecision, the article has no legal effect Nevertheless, works by prominent philosophers have intellectua1 authority-their ideas have independent persuasive value. But their arguments have none of the institutionallimitations placed on courts because philosophers work in a world of relative academic freedom. 120 This academic world does not speak easily to the courts, which have to consider limits on subject matter, the binding force of precedent, statutory language, and the Constitution. Thus, where the Court does cite philosophers, the mention is often brief, as a kind ofpresumptive authority. The constitutional and structurallimits placed on judges make it inappropriate for them either to engage in ambitious philosophical abstractions or to use philosophical references as a proxy for such reasoning. The rhetorical ploy of using philosophers in controversial political cases circumvents the institution al limits of the Court and provides a backdoor method for judicial policy making. Although such usage is not yet widespread, it is increasing, which should present cause for concern. C. Historical Understanding History places one of the strongest institutional limits on judicial reasoning and distinguishes it from philosophy. Judicial decisions within the Anglo-American legal system must incorporate the understanding of previous legal decisions as weIl as political practices even though federal courts enjoy relative independence from the political forces of democracy. Stare decisis is a well-established principle within our judicial system. It requires judges at least to consider previous judgments and rule in accordance with them unless a new case can be distinguished. Al''''In discussing the Philosophers' Brief, Sunstein writes, "the Court should generally

be reluctant to invalidate legislation on the basis of abstract philosophical arguments . .. because predicted consequences, on which philosophical arguments tend to be silent, matter a great deal to law." Sunstein, 29 Ariz St L J at 390 (cited in note 44).

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though so much a part of common law understanding, stare decisis does not fit into any absolute theory of when and how precedents should be used. 121 AB Judge Frank Easterbrook has pointed out, "to have a theory of precedent is to have a theory of the extent to whichjudges' acts are law. Yet we do not have such a theory.»]22 Thus, stare decisis must, like many other legal principles, rely on cultural and historical understanding for its implementation. Frequently departing from precedent would be a type of judicial activism, but a dogmatic adherence to obsolete and incorrectly decided cases would be a form of judicial irresponsibility. The legal system has a built-in conservatism: each case presents a balancing test of sorts between the decisions of the past and the imminent needs of the present. Chief Justice Rehnquist's restrained opinion in Glucksberg reflects this balance.l23 Judicia1 adherence to precedent and the past stands in stark contrast to philosophy. A presumption that previous decisions will be followed provides notice to citizens, and thus allows them to order their lives in a manner consistent with the law. The judge also utilizes old decisions and ideas because they are a part of legal and political history and because conformity with these precedents generates a presumption of legitimacy and provides cultural continuity. Philosophers, on the other hand, study thinkers of the past, but these are generally not seen as binding authority.l24 Each philosopher can depart from the past in order to discover enduring and etemal truths-earlier works have no special priority. Thus, philosophical unrootedness is inappropriate in judicial decision making, where the past confers notice, stability, and confidence; abstractions often lack legallegitimacy and persuasiveness.

121 For a position advocating absolute stare decisis in statutory interpretation, in order to preserve Congress's policy-making role, see Lawrence C. MarshalI, "Let Gongress Do It": The Gase for an Absolute Rule of Statutory Stare Decisis, 88 Mich L Rev 177 (1989). Cornpare William N. Eskridge, Jr., The Gase of the Amorous Defendant: Criticizing Absolute Stare Decisis for Statutory Gases, 88 Mich L Rev 2450 (1990). 122 Frank H. Eastorbrook, Stability and. Reliability in Judicial Decisions, 73 ComeU L Rev 422, 422 (1988). 123 See text accompanying notes 39-46. '" See Anthony T. Kronman, Precedent and Tradition, 99 Yale L J 1029, 1032 (1990), for an excellent discussion ofthe use ofprecedent as a defining characteristic ofthe law:

[W)herever there exists a set of practices and institutions that we believe are entitled to the name of law, the rule of precedent will be at work, influencing, to one degree or another, the conduct of those responsible for administering the practices and institutions in question. By contrast, the rule of precedent has no place in philosophy and is indeed antithetical to its governing spirit.

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Perhaps, however, extra-legal sources can help judges to determine when adeparture from past practice might be necessary-philosophy might be a vehicle for legal change. But legal reasoning includes its own processes for change, and reliance on the past does not bind judges to outmoded principles when socia1 and political understandings have evolved. Thoughtful traditionalists, like Edmund Burke, Michael Oakeshott/25 and Anthony Kronman, recognize the possibility and the necessity for change within a tradition or convention. Kronman, arguing against criticisms from Judge Posner, said: I do not think of conventionalism as blind adherence to going practices; every convention worth its salt, every meaningful convention, has an open-texturedness which not only allows but actua11y requires its development over time. That is the mark of a great tradition, and I think it is the mark of the tradition ofthe law. l25 The Anglo-American legal tradition has been heavily influenced by the conservatism of writers such as Burke, who focused on practical wisdom and experience, and who were deeply suspiclous of the rationalist philosophers generating revolution and rebellion across the English ChanneP27 For Burke, there was prudence in following what had come before and accepting change only in slow, incremental, and considered forms. In modern legal scholarship, neotraditionalists such as Kronman have embraced Burkean prudentialism as a response to the criticallegal studies movement's politicization of the law. Neotraditionalism, according to Judge Posner, identifies with four main princlples. The first is antireductionism, the idea that the law cannot be reduced to another discipline such as philosophy, economics, or politics. The second is that law is a middle between the extreme ideas of law as an art and law as sclence. The third is that law is a form of ""Oakeshott writes, "A tradition of behaviour is not a fixed and inflexible manner of doing things; it is a flow of sympathy,W and "It is steady because, though it moves, it is never wholly in motion; and though it is tranquil, it is never wholly at rest." Michael Joseph Oakeshott, Political Education, in Michael Joseph Oakeshott, Rationalism in Politics 126, 128 (BasicBooks 1962). '''' DiscU$Sion: Jurisprudential Responses to Legal Realism, 73 Comell L Rev 341, 347 (1988), quoting Anthony Kronman during a discussion of bis article, Jurisprudential Responses to Legal Realism, 73 Comell L Rev 335 (1988), at The Federalist" Society Sixth Annual Symposium on Law and Public Policy: The Crisis in Legal Theory and the Revival of Classical Jurisprudence. I2'Burke said that ofthe men elected into the Tiers Etat, there were some ofrank and talent, "hut of any practical experience in the state, not one man was to be found. The best were only men of theory." Burke, Reflections on the Revolution at 35 (emphasis added) (cited in note 95).

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Aristotolian practical reason, involving deliberation and prudential, incremental change. The final principle is the idea of interpretive communities,128 that a legal text acquires meaning partially against the community of lawyers to which it is addressed. 129 This conservative approach distinguishes the law from the goals and methods of professional philosophy. Although the neotraditionalist characterization of the law accords with the Anglo-American tradition, the neotraditionaIists take these premises and conclude that the law should be an autonomous discipline, relying primarilyon its own history and cases for underJtanding. This conclusion, however, is not sustainable in today's world where modem disciplines already have affected and continue to influence analysis and understanding of the law. Work in economics, social science, and philosophy has changed the understanding and practice of law. Ironically, many of the neotraditionalists criticize the interdisciplinary focus in law froru their own backgrounds in philosophy and social theory.130 This Comment suffers from a similar dilemma-it tries to show that philosophy and judicial decision making are inherently different enterprises, but resorts to the insights of philosophers from Aristotle to Nietzsche to support this proposition. Law's institutional authority and structural limits will always make it somewhat autonomous, but legal understanding occurs against a cultural and historical background, and the insights provided by other academic disciplines will inevitably color and affect these cultural understandings. The use of precedent and history in the law is customarily justified for utilitarian or rule of law reasons. It is pragmatic to follow earlier decisions because this both promotes judicia1 economy and generates consistency. Nietzsche said that man became interesting when he developed a memory.131 As KIonman, a more contemporary defender ofthis view, writes: The past is not something that we, as already constituted human beings, choose for one reason or another to respect; rather, it is such respect that establishes our humauity in 128 See Stanley Fish, 1s There a Text in This Class? The Authority of lnterpretive Com· munities (Harvard 1980); Stanley Fish, Doing What Comes NaturaUy: Change, Rhetoric, and the Practice ofTheory in Literary and Legal 8tudies (Duke 1989). ". Posner, Jurisprudence at 434-37 (cited in note 100). 13' Anthony Kronman, for example, has a Ph.D. in philosophy and has written articles employing economic analysis, as well as a book that relies heavily on philosophers like Aristotle and Kant. See Kronman, The Lost Lawyer (cited in note 57). I3IFriedrich Nietzsche, On the Genealogy of Morals 57-60 (Vintage 1989) (Walter Kaufmann trans) (discussing how the development of memory makes men trustworthy and solid).

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the first place. We must, ifwe are to be human beings at all, adopt toward the past the custodial attitude Burke recommends. That attitude is itself constitutive of our membership in the uniquely human world of culture; it is what makes us cultural beings, as opposed to animals or thinkers. 132 Philosophy, in contrast, is opposed to such a memory; it does not want to be bound by the prejudices of the particular. Philosophy hopes to soar in order to find universal truths, not local understandings of culture or tradition-these are better left for the historian, the statesman, or the judge. Philosophy's value comes from its ability to stand apart from what exists, to cast the light of reason into the dark cave. But the law cannot stand at such a critical distance-it is an institution very much of this world, tied to human particularity in all of its confused complexity. CONCLUSION

In Glucksberg, Chief Justice Rehnquist rejected the abstract claims of the Philosophers' Brief. Supreme Court opinions have with increasing frequency, however, used philosophers to justify positions on controversial politica1 issues. While explicit policy making by the Court is rare, the Court sometimes uses nonlegal sources such as philosophy to expand the scope of its decisions. This backdoor means of policy making ultimately lacks legitimacy and legal persuasiveness. For a number of institutional, structural, and historica1 reasons, policy judgments should not be masked by philosophica1 references.

''''Kronman, 99 Yale L J at 1066 (cited in note 124).

[5] DOES PHILOSOPHY DESERVE A PLACE AT THE SUPREME COURT?

ThomBrooks After the Supreme Court's decisions in Vatco v. Qttill and Washillgtoll v. Gltttksbe'l2 defending the right of states to ban assisted suicide, the Court made no mention in its decision of an amicus briee ("Philosophers' Brief') written in favour of assisted suicide by six well-established philosophers consisting of Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson: Some philosophers viewed this as a lamentable event, not least the authors of the "Philosophers' Brief."s On the other hand, certain legal analysts celebrated this occasion, including Neomi Ra0 6 Rao argues that law is a distinct practice from philosophy, as legal decisions are constrained by dictates of history, precedent, and institutional checks.' In Rao's view, philosophy lacks such constraints, tenmng to embrace conceptual amI theoretical abstractions. The legitimacy of philosophical insights is grounded independendy of practices. On the contrary, judicial constraints serve also as a source of legallegitimacy. Thus, the use of philosophers by the Court, especially in politically contested cases, "provides a backdoor method for judicial policy making."g If Rao's analysis is correct, one ought to dissuade one from referencing philosophers in the counroom, for doing otherwise might lead to unjustified judicial decisions. Thus, the legal profession ought to hold philosophers and their theories at ann's length and outside the courtroom.

1 521 U.S. 793, 796-97 (1997) (holding that state bans against assisted suieide do not violate the Equal Proteetion Clause of tbe Fourteentb Amendment.) 2 521 U.S. 702,706 (1997) (holding that state bans against assisted suieide do not viola te tbe D ue Proeess (Ja use or the Fourteentb l\mendment). J Brief f or Ronald Dworkin el al. as "",miei Curiae in Support of Respondents, GluckJberg, 521 US 702 (1997) (Nos. 951858,96-11 0).

Tbe majority deeision does eile a brief written exclusively bybioethies pro fesso rs. GluekJberg, 521 US at 733 n.23. ; See Ronald Dworkin, A,,·iJted Suicide: The Philosophen-' Brief, N Y Rev. ofBooks 41 (Mar. 27, 1997). '~eomi Rao, A B aekdoorto Pnlicy Muking: Tb, Ufe o! PhiloJophm hy the Supreme Court, 65 1J. U D. f .. Rr.v. 1371 (199H). 7 See id. al1371, 1380, 1397. 'fd. at 1397. 4

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This Comment endorses the view that philosophical analysis need not be incommensurable with sound judicial decision making. In fact, philosophy may act as an ally in the pursuit of sensible legal reasoning, rather than an impediment. As a result, Rao's position ought to be rejected. Her judicial thought did not develop in isolation; it was clearly influenced b y the work of Charles Collier,' Richard Fallon, \0 Owen Fiss," Charles Fried,12 and Judge Richard Posner. \3 Nevertheless, Rao's argument has begun to influence the legal profession. 14 Part I criticises Rao's content analysis and subsequent assessment of flfty cases where the Court cited philosophers. First, the collection of cases studied is questioned, prirnarily because R..'10 overlooked some of the most important philosophers, such as St. Augustine, Kar! Marx, and Socrates. If one accepts her criteria of when a philosopher is cited as a philosopher versus some other capacity (such as an economist or historian), then her data does not support her hypotheses. This Comment argues that references to philosophers have remained stable after a large increase in the 1970s, particularly when one takes account of post-1997 Court decisions. Second, Rao is criticised for praising the Comt's references to philosophers in some instances and not others, especially with regard to the Court's early development. Part II examines what Rao considers the best example of judicial policy-making via the backdoor: the legalization o f abortion in Roe IJ. Wadeis . Rao claims that references to Plato had an adverse effect upon the Court's decision in Roe IJ. Wade. On the contrary, Plato's discernable influence was negligible, as he was mentioned briefly in a broad historical overview of Western civilization's response to abortion - a m ethodology Rao supports. This Comment searches unsuccessfully for an instance where philosophers were cited just once in controversial ca ses regarding racial integration, capital punishment's abolition and reinstatement, and the 2000 Presidential election. Philosophers are peculiarly abseilt from major controversial cases. Part III challenges Rao's analysis of the importance of philosophy in the Vaao 1/. Quill and Wm}Jingloll lJ. G/71ck.Jbe(p, cases. Rao claims the Court's majority decisions avoided the "Philosophers' Brief' main\y because the philosophers based their argument in theory, rather than a substantive legal analysis surrounding issues of judicial precedent. 16 On the contrary, this Comment demonstrates that the maJorit)' and concmring opinions mention "philosoph)''' more often than the "Philosophers' Brief." This comment will show that the "Brief' is wedded to precedent and avoids

See Charles W. Collier, The Use and Abuse ofHumanistic Th,ory in L :lIP: ll.eexamining the Assllmptions o(InterdiJciplinary Lega! Scho!ar.rhip,41 DUKI ': L.j. 191 (1991). lD See Richard H. Fa Uon, Jr., Non-Legal Th,ory in Ilidida! Deäsionmaking, 17 I-lARv.J .L. & PUB. POL'y 87 (1 994). II See Owen M. Fiss, Tb, Dealh ofLaJV?72 CORNELLL. RE \'. 1 (1986). 12 See Charles Fried, The Artifilial Reasoll of the LaIP 017 IVhal Lanyers Know, 60 T EX. L. RE\'. 35 (1981). II See Richard Posner, The Problems ofJurisprudence (Harvard 1964) and Richard Posner, Concepliofls ofLega! 'T heory" A Re,ipOns, 10 Rtmald DlPorkjfl, 29 AR T?:. ST. L.J. 377 (1997) . 14 Sinee its publication in 1998, Rao's artide has been \V~dely diseussed amongst legal philosophers. See, e.g. , Ronald J. Allen, ComJJJolI Sense, Ratiollality, ami the Legal Pmcess, 22 C\RDOZO L. RE\'. 141 7 (2001 ); Ronald J. "-\lien, TlJ!o Aspects ofl.LIIIJ and Theory, 37 SAN DTEGO L. REv. 743 (2000); ivI. Neil Browne, Kathleen Maloy, Jessiea Pici, The Strogg!e jorjhe Seij'in Enllimllmenla! LaIP: The Conversalion Bellve,n EcolIOJlliJ/.f and_Enllimllmenlalisls, 18 UCL.\ J. E NVl1 .. L. & POT.'Y 335 (2000/200 1);James 'vI. DuBois, Physidan-Assisled Suidde emd Pub/ir Virlues: A Reply 10 the Lebert:y TheJis 0/ 'The Philosophers' Brief; 15 ]SSUES L. & ME!). 159 (1999); George P. Smith,Iudicia!Decisionmaking in the j\ge ofBiotechnology, 13 NOTRE Dl~,[E j. L. E TI-IICS & P UB. POL'y 93 (1999); and Bonnie Steinbock, Op8lling l.emarks, 62 ALB. L. RE\'. 805 (1999).

9

15 410 U.S.I13 (1973). 16 Rao, .fupra note 4, at 1371-72.

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grand theorizing. Moreover, an implieit dialogue between the Court and the philosophers is proposed. Finally, in Part IV, this Comment challenges Rao's use of "philosophy" as something entirely abstract and steeped in metaphysies. Philosophy is presented as a !arge umbrella covering diverse sub-fields, two of whieh are philosophy of law and politieal philosophy. These sub-fields are of great use to law. Thus, the Court has not used philosophers illegitimately to support personal poliey preferenees. Nor is the use of philosophy incommensurable with judieial deeision-making.

1. THE USE OF PHILOSOPHERS IN COURT DECISIONS One might suspeet that Supreme Court Justiees often eite philosophers. An initial Westlaw seareh on the Supreme Court database found the Court had at least mentioned the term 'philosophy' somewhere in more than 550 eases. Yet, in a similar Westlaw seareh for partieular philosophers, from Plato to Dworkin, 17 Rao found only forty-seven eases where the Court eited them. 18 Most

17 Rao chose the following philosophers: Aristotle, St. Thomas Aquinas, Jeremy Bentham, Edmund Btu:ke, Jacques Derrida, Rene Descartes, Ronald Dworkin, lvlichel Foucault, Hans-Georg Gadamer, G. W. F. Hege!, lvlartin Heidegger, Thomas Hobbes, David Hume, Immanuel Kant, Gottfried Leibniz,John Locke, Niccolö Machiavelli,J. S. rvlill, Montesquieu, Thomas Nagel, Fnedrich Nietzsche, Robert Nozick, Plato, John Rawls,Jean-Jacques Rousseau,Jean-Paul Sartre, Thomas Scanlon, Arthur Schopenhauer, Adam Smith, Baruch Spinoza, Judith] arvis Thomson, Alexis de Tocqneville, and Lud\\~g Wittgenstein. Id. at 1373-74 n.5. 18 Id. at 1372-73. The forty-seven cases Rao fOUlld (with the philosopher referenced in parentheses) are: United Statcs v. Virginia, 51 8 U.5. 515,556 n. 20 (1996) (plato); Rßsenberger v. Redor& V'Ii/orsoflhe Univ. olVa., 515 U.S. 819, 836-37 (plato, Spinoza, Descartes, and Sartre); MiJ.fOlIIi v. Jenkins, 515 U.S. 70, 133 (1995) (Thomas, J., concurring) (Nagel); City olLadlle IJ. Gi/leo, 512 U.s. 43, 56 n. 14 (1994) (Aristotle);Amve v. Creeeb, 507 U.s. 463,479 n.l (1 993) (Blackmun, J., dissenting) (Bentham); Morgan o. lI/inois, 504 US. 719, 752 (1992) (Scalia,J., dissenting) (Kant); BameJ 1/. Gien Thealre, Ine., 501 US. 560, 587 n.l (1991) (\Vh.ite, J., dissenting) (Aristode); WebJterv. Reprod. Hea/tb Sem., 492 U.S. 490, 539 n.l (1989) (Blackmun, J., dissenting) (Dworkin); BOlVen 1/. Gil/iard, 483 US. 587, 632-33 (1987) (Berman,J., dissenting) (p!ato and Aristode); EdwardJ v. Agllil/ard, 482 US. 578,630 (1987) (Scalia, J., dissenting) (Aristotle); BowfIJ v. Hardwük, 478 U.s. 186,21 1 (1986) (Blackmun,J., dissenting) (Aquinas); De/lVore v. VanArsdall, 475 U.S. 673,697 n.9 (1986) (S tevens, ]., dissenring) (Dworkin); Milsllbishi Motors LOrp. v. Soler Chrysler-Plymollth, InJ The Oxford Companion 10 Phikisophy 940 (Ted Ilonderich cd., Oxford 1995). 128

130 III

Rao, J/tpra note 4, at 1386. Jd. at 1395.

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definition of philosophy. She should be criticised for hypocritically praising Court philosopher references in some instances and not others, especially with regard to the Court's early development. This Comment searched unsuccessfully for an instanee where philosophers were cited just once in controversial cases regarding racial integration, capital punishment's abolition and re-legality, and the 2000 Presidential election. Philosophers are peeuliarly absent from major controversial eases. Rao claims the Court's majority decisions avoided the "Philosophers' Brief' beeause the philosophers' argument was grounded in theory, not substantive legal argument surrounding issues of judieial preeedent. This Comment ehallenges Rao's use of "philosophy" as something entirely abstract and steeped in metaphysics. Philosophy is presented as a !arge umbrella covering diverse sub-fields, two of whieh are philosophy of law and politieal philosophy. These sub-fields are of great use to law. Thus, the Court has not illegitimately used philosophers to support personal poliey preferences. Nor is the use of philosophy incommensurable with judicial decision-making.

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Part 11 Immigration

[6] IMMIGRATION, ASSOCIATION, AND THE FAMILY MATTHEW LISTER* (Accepted 8 July 2010)

ABSTRACT. In this paper I provide a philosophie al analysis of family-based immigration. This type of immigration is of great importanee, yet has received relatively little attemion from philosophers and orhers doing normative work on immigration. As family-based immigration poses signifieam challenges for those seeking a comprehensive normative accoum of the limits of diseretion that states should have in setting their own immigration policies, it is a copic that must be dealt with if we are CO have a comprehensive aecoum. In what follows I use the idea of freedom of association CO show what is distinctive about family-based immigration and why it ought CO have a privileged place in our discussion of the COpic. I further show why this style of argument neither allows states co limit nearly all immigration nor requires them to have almost no limits on immigration. Iconclude by showing that all states must allow some degree of family-based immigration, and that this is a duty owed not to 'outsiders' seeking to enter, but rather to current citizens.

Any discussion of immigration that hopes to be comprehensive must include a discussion of the family. This is so for both practical and theoretical reasons. From the practical point of view the family must be discussed since family-based immigration 1 is the largest form of * An early version of chis paper was presented at the Northeastem Political Seience Association a,mual meeting in 2007. My thanks to Tom Donahue for organizing that session and to David Alvarez Garcia for his helpful comments at that time. Sarah Song kindly assigned a draft of the paper 10 her students at Berkeley. My thanks 10 her and her students. especial1y Genevieve Painter, for their comments. Stephen Perry. Samuel Freeman. Jon Mandle. Alan Brinton, Kok·Chor Tan. Howard Chang. Ekaterina Dyachuk, and !Wo anonymous reviews for Law and Philosophy also provided very helpful comments. 1 By family.based immigration I shall primarily mean cases where one member of a family (or would·be family, in some cases) is already an 'insider' in the country of irntnigration - usually a citizen but sometimes a legal permanent resident, and the would·be immigrant is a family member who is allowed 10 immigrate, or at least seeks 10 immigrate, because of the family tie in question. Exactly which family ries should qualify for immigration benefits is part ofwhat I hope 10 establish in this paper. There are many possible complications CO the basic case given above. I shall discuss some of thern as necessary. bnt shall rnostly be concemed with this sort of core case in this paper.

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legal immigration in the world. In a great nu mb er of countries family based immigration is, effectively, the only way in which a would-be immigrant may gain access to permanent resident status. 2 Given the massive role that family-based immigration plays, it is necessary that any ac count of immigration be able to make sense of this feature. Furthermore, even if many of the factors that now drive large amounts of international migration, such as war, poverty, great inequality in opportunity, political persecution, and lack of freedom were eliminated - if, say, Rawls' s law of peoples3 were in effect - familybased immigration would still need to be taken account of since we could expect it to continue on a large scale. So long as people are free to travel across borders for personal travel, work, studying, or just to explore, people will fall in love across borders and hope to form (or reform 4) family units. Since this sort of freedom of movement is the sort we should take for granted to exist in a free world (large-scale restrietions on travel and emigration being one of the hallmarks of dicta torships) we should expect family-based immigration to perrnanently be part of our world. 5 Given this, even an immigration policy addressed to ideal theory must address the question of family-based immigration. Family-based immigration also presents several related theoretical questions. Firstly, family-based immigration is, in two ways, likely to be inefficient. To the extent that we think that immigration policies ought to be crafted to promote weil-being, both of 'insiders' and 'outsiders', we might therefore have doubts ab out the advisability of promoting family-based immigration. The first potential inefficiency is that familybased immigration is usually believed to be less likely to benefit the country ofimmigration than would an immigration system aimed more directly at improving the economic well-being of the target country, 2 For disCllssion ofthis in relation to the major 'countries ofimmigration' in the world, as weIl as in relation to France and Germany. see James P. Lynch and Rita J. Simon. Tmmigration the World Over: Statutes, Policies. and Praetices (Rowman &: Littlefield. 2003). See also. Castles. Stephen and Miller. Mark J.. The Age of Migration. 4' h ed. (Palgrave·Maemillan. 2009). p. 110.

Rawls.John. The Law ofPeoples: With 'The Tdea ofPublic Reason Revisted' (Harvard University Press. 2001 ). Cases where families might benefit from family-based immigration ean resull from the 'formation' of a family, when a dtizen of ane country marries a non-citizen, cr 're-formation' Of 'reunification', where one family member migrates to a new country, aequires citizenship, and then btings in his or her family members after aequiring the right to do so. Both types are eurrently eommon. I intend my aeeount to cover bOlh formation/unification and re-formation / reunifieation, though from now on I shall only use the former term. 5 It is hard to know with any eertainty how extensive family-based immigration would be in a world that satisfied Rawls' s law of peoples, as there are faerors whieh push in both direetions. I shall diseuss the maller furcher below. 3

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since many people will immigrate who otherwise would not qualify under a system that aimed to maximize the economic well-being of the target country.6 This aspect is often noted by those who want the US immigration system, which places great emphasis on family unification, to become more like the Canadian system that gives more emphasis to certain skills that are thought likely to be beneficial to Canada. 7 Ifwe do not assume a general right to migrate to another country, and therefore hold that states may, within limits, regulate 'discretionary' immigration, so as to achieve any acceptable ends, we might here ask whether a state could seriously restrict or eliminate family-based immigration so as to promote national economic well-being. 8 6 I think it is easy to over·state this case and to ignore the ways that immigration based around the tamily, rather than around individuals, ean also have positive economie effeets for the target eountry, even when eompared with individuals chosen for features that we exeept would make them signi/icam eco· nomic contributors. I will discuss same of these issues later, but hefe merely want to point out that this partieular effeet is. I believe, often over·stated. Furthermore. we may doubt that eeonomie well.being is the correct measure of welfare, and think that family·based immigration is lesslikely to be 'inefficiem' if we take another measure. I am sympathetic to this elaim, but as economic well-being is a common, perhaps the dominant, measure in most government policy·making (it is the standard used in most cost-benefit analysis, for example) it seems worth here focusing on this method, at least to show it is not decisive. 7 See, among many examples. Macedo, Stephen, 'The Moral Dilemma ofU.S. Immigration Policy', in Swain (ed.), Debatmg Immigration (Cambridge University Press. 2007), p. 67 and p. 77, Borps. George, Friends or Strangers: The Impact ofImmigrants on the U.S. Economy (Basic Books, 1990). pp. 218- 225. Borjas thinks the Canadian system is better than the U.S. system but does not thinkit goes far enough. Though he does not explicitly say so. he strongly hims that he favors stringent country of origin limitations on immigration in addition to efforts to more actively rectuit 'skilled' workers. Canada does provide for significant family-based immigration of immediate family members, and likely meets the minimal requil'ements of justice I set out later in this paper, despite having fewer eategoties for family-based immigration than does the U.S.

8 Obviously, many philosophers and others working on immigration will reject this assumption as a matter of plinciple. I will not here provide a defense of the claim that states have some light to set limits on immigration, even well below breaking-point considerations accepted by open or near-open borders theolists such as joseph Carens, Phillip Cole, Michael Dummett, and BTUce Acketman. (For these arguments, see Carens. 'Migration and Morality: A Liberal Egalitarian Perspective. in Barty and Goodin (eds.), Free Movement (Penn State University Press. 1992), pp. 28-31, Acketman, Sodal justiee in the Liberal Stale (Yale University Press, 1981), pp. 89-95, Cole, Philosophies of Exelusion: Liberal Political Theoty and Immigration (Edinburgh University Press, 2001) and Dummett, On Immigration and RefUgees (Routledge, 2001), pp. 14-21.) My personal sympathies lie close ro the pOSition argued for by joseph Heath. in his articles. 'Immigration, Multiculturalism and the Social Contracf, Canadian jountal of Law and jurisprndence 10: (1997) 2 and 'Rawls on Global Distributive justice: A Defence", Canadian jountal of Philosophy Supplementary Volume (2007), and Stephen Perry. in his artiele, 'Immigration, justice, and Culture", in Schwartz (ed.), justice in Immigration (Cambridge University Press, 1995). pp. 94-13 5. If one accepts that some limits on immigration are compatible with liberal principles ofjustice. then the considerations in this paper are immediately and directly relevant. However. I contend that the sorts of cases that I here consider are important even for those who claim tO favor open borders, for at least rwo reasons. Firstly, if we are not to have chaos, some sOIt of priority principles will need to be in place, so that flows may be met in an orderly way that does not, for example, swamp loeal services. Considerations here considered may help provide such principles. Secondly, those who favor open borders as an ideal may accept my arguments as transitional and second-best. Given that we are unlikely to have aworld with open borders in the near future (even if we think such a world is desirable), it is useful to develop principles far the world we are likely to face . As I do not think that open or nearly open borders are a requirement of justiee, I da not aeeept this 'prineipies for the seeond-best' reading of my account, though I coI1tend it is a plausible one for those who do support open borders, as in a world with immigration restriclions, the problem of family-based immigration must be [aeed.

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The next 'inefficiency' is related to the fact that basing immigration rights around family unification is probably less likely to improve the well-being of the global poor than would a program that directly aimed at such a goal. Since family-based immigration, almost by definition involves, international travel by one or more party, and since international travel is not within the normal reach of the worstoff globally, it is safe to assume that most of those who benefit from family-based immigration rights are not in the globally worst off group. So, if we think that immigration poliey ought, either absolutely or to some degree, give priority to the worst-off globally, we might believe that we should limit family based immigration, so as to better devote resources to help this group, perhaps by direetly sponsoring immigration to more wealthy countries for the worst off. 9 The seeond theoretieally important aspect of farnily-based immigration arises because farnily-based immigration differs from many other types of migration in that it necessarily involves not just an outsider seeking to enter lO but also someone who is already an 'insider', seeking to bring in the outsider. Given this, we must take into aecount the rights not only of the would-be immigrant, but also the rights of the current member. In what follows I shall argue that the seeond eonsideration provides grounds for dealing with the first. That is, I shall argue that the way to think about family-based immigration is to look at it primarily through the perspeetive of the current citizen, rather than the would-be immigrant. ll 9 To my knowledge no country does this outside of refugee or temporary protection progr.ms of v.rious sorts. Such programs are usually not based on economie need, but other special grounds, and so do not directly fit the example under consideration. A superficially similar program is the 'diversity visa', the so-called 'green-card lottery', in the U.S., which provides tor several thousand immigrant visas to residents of 'underrepresented' countries via a lottery system each year. See INA § 203(c). However, because the visas are made available to countries with low immigration to the V.S., many of the visas are reserved for citizens ofweU-off countries (though many go lO African countries as weU). Furtherrnore, the education and work experience requirements, as weUas general 'public charge' requirements, of the type discussed below, keep this program from being effectively directed at the worst-off globaUy. Finally, there is good reason lO think that immigration is probably a poor way lO help the worst-off globally. For discussion of this point, see Pogge, Thomas, 'Migration and Poverty', in Goodin and Pettit (eds.), COIItemporary PoliticalPhilosophy: All Antholgy, 2',d ed. (Wiley-BlackweU, 2005), pp. 710-720. I largely agree with Pogges concJusion in this articJe, though I will not address this issue at length in this paper. 10 Here I am ignoring a related but distinct question of whether astate may legitimately offer a nonmember a chance to enter but at the same time refuse to aUow the would-be immigrant's family to join hirn or her. This question comes up most starkly in the case of guest-workers, a subjecr that must be saved for another discussion. 11 The 'primarily' clause here is important. I shaU note in what follows so me ways in whieh the receiving state must give some weight to the interests of the non-citizen would-be immigrants. But, given the working assumption of the paper that there is no general right to free movement and that states have significant discretion in setting their own immigration policies, it seems lO me preferable to start from the perspecdve of the citizens of the receiving state, for reasons that will be de veloped below.

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I shall argue that states have a duty to their current citizens to allow them to bring in non-citizen family members, at least of certain sorts (prirnarily spouses but not limited to this). States may take limited measures to ensure reciprocity among members, I shall argue, but may not, at least in normal cases, eliminate this right on the part of citizens or take steps that would make the exercise of such rights impossible for all or nearly all citizens. The case of family based immigration, then, is one where the discretion of the state in shaping its immigration policy must be severely limited. I will argue that this right to bring in non-citizen family members is based on the fundamental right to form intima te relationships of one's choosing. This right is an essential one for personal autonomy and in the development and exercise of what Rawls calls the 'moral powers',12 and as such cannot, at least in any serious way, be traded off for gains in utility or to satisfY the preferences of a majority.13 This right is, at least in part, a special sub-branch of the freedom of association. That this is so lets us see two potential difficulties that must be overcome if my account is to be successful. First, a long line of thought, reaching at least back to several of the 'founding fathers' of the U.S., 14 and recently articulated by Michael Walzer and Christopher Wellman,15 has held that freedom of association actually allows states to dose their borders entirely, if that is what a majority wishes. On the other hand, one might think that my argument proves too much, showing that our working assumption that states have discretion to limit what I term (following Michael Blake l6 ) 'discretionary immigration' is mistaken. This would be the case if freedom of association created a general right to associate with non-citizens on whatever terms any particular citizen wished. If this were so, 12 The 'two moral powers' are, (I) the capacity for a sense of justice and the ability to act /Tom principles of political justice that specify fair terms of social cooperation. and (2) the capacity for a conception of the good and to rationally revise and pursue such a conception . See Rawls, .!ustice as Fairness: A Restatement (Harvard University Press, 2001), pp. 18-19. Much helpful discussion ofthe moral powers is to be found in Freeman, Samuel, Rawls (Routledge, 2007). See especially pp. 54-56. 13 For a particularly interesting account of how the family can affeet the development of the moral powers see Green, T. H., 'The Right ofthe State in Regard to the Family', pp. 230-243 in his Lectures on the Principles ofPolitical Obligation (University ofMichigan Press, 1967). I do not agree with many ofthe details of Green's account. but believe that it offers one of the more interesting accounts of the rale of the family in the developmenr of what Rawls (though not Green) calls the moral powers. 14 See, e.g., Records ofthe Federal Convention (Yale University Press, 1966), vol. 2, p. 238. 15 See Walzer, Michael, Spheres ofJustice (Basic Books, 1984), especially chapter two, ' Membership', and Wellman, Christopher, 'Immigration and Freedom of Association', Erhics 119: (October 2008), 109-141. 16 Blake, Michael, 'Discretionary Immigration', Philosophical Topics (2004), 273- 290.

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states would have some freedom left to limit immigration, but this freedom would be greatly circumscribed since, while astate could keep out those seeking to enter unilaterally, the wishes of any citizen to association with a non-citizen would be enough to over-ride the general rule. 17 If my ac count is to be successful, then, it must show that family-based immigration is special in that it can outweigh the associative desires of a majority, but can also be distinguished from other associative rights in a way that calls for giving a special place to the family, as opposed to other associations in the immigration context. In what follows I shall first set out my general account of why states have a duty to extend farnily-based immigration benefits to their members, and then show how and why this avoids the two problems noted above. 1. WHY FAMILY-BASED IMMIGRATION RIGHTS?

The right to form and maintain intimate relationships is among the most fundamental and important held by free people. This right is, as I have noted, a subspecies of the general right to freedom of association. The general right is considered by Rawls as being among the basic liberties necessary for the development of the moral powers. 18 It is also a right protected in the U.S. Constitution and in the constitutions of other liberal states, as weil as a right proclaimed in the United Nations Universal Declaration of Rights. 19 Here freedom of association, especially in regard to intimate association, works in two main ways. First, associations help us develop our sense of justice. By interacting with others we leam to 17 [ am here assuming that states do not have to give nearly as much weight to the associative desires of outsiders as to insiders (though also not no weight). This follows, [ believe, from a general 'modest cosmopolitan' position of the sort argued for by Jon MandIe in his book Globaljustice, Polity 2006, and by Samuel Scheffler in his paper 'Conceptions of Cosmopolitanism', in his Boulldarirs and Altrgiancrs (Oxford University Press, 2003), pp. 111- 130. [ believe that a modest cosmopolitanism along these lines is the eorreet view, but [ will not argue for this claim here. IS Rawls, justicr as Fairness, p. 44. See also Freeman, Rawls, pp. 47-48, 55-56. 19 Freedom of assoeiation is not explieitly mentioned in the US Constitution but is usually inferred fi'om the rights protected by the Ist Amendment (assembly, free speech) 5th and 14th amendments (due proeess and equal proteetion) and, more eontroversially, the 10th amendment (reserving other rights to the people). The UN Universal Declaration ofHuman Rights proclaims, in art. 20, that, 'Everyone has a right to freedom of peaeeful assembly and assoeiation' . Rights closely related to freedom of assoeiation are set out in articles: 12 (privaey in family life and home), 13 (freedom ofmovement within the state), 16 (right to marry and form a family), 17 (own property in assoeiation with others), 18 and 19 (freedom of eonseienee and to seek information). See http: // www.un.org / Overview / rights.html. The Universal Dedaration is, of course, aspirational and not a legally binding doeument, but the indusion of freedom of assoeiation does give reason to think it is widely reeognized as important.

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temper our wants and desires, to consider the good of others, and to interact in mutually beneficial ways. This applies to associations of all sorts, but is perhaps especially salient in the family. (Of course, there is no guarantee that the family, or any association, will be weIl-used and lead to virtue as opposed to vice. That this is so is one of the dangers people living in a free society must face, and does not change the fact that these associations are essential for moral development.) As Rawls notes, 'Citizens must have a sense of justice and the political virtues that support political and social institutions' , and therefore, 'The family must ensure the nurturing and development of such citizens in appropriate numbers to maintain society, .20 We see here the importance of the family in developing a sense of justice. Freedom of association works in the development of the moral powers in a second way as weIl. The right to free association, perhaps especially intimate association, is a pre-condition of good lives, and hence is essential if people are to be able to exercise their ability to form a conception of the good. Without this right, the large majority of good lives would be preduded. This is perhaps especially so of the right to form intimate associations such as the family, not only because most people will, and will want to, form such associations, but also because such associations are necessary for the perpetuation of society. Given that this right is a pre-condition to the formation of most all conceptions of a good life, it will be protected as a basic right by Rawlsian deliberators. 21 20 Rawls, 'The Idea of Public Reason Revised', in Samuel Freeman (ed.), Collected Papers (Harvard University Press, 2001), p. 596. 21 An obvious worry about my account at this point is that Rawlsian deliberators, notoriously, consider themselves, while behind the full veil ofignorance, to be in a c' 1osed sod ety'. See Rawls, Justice as Fairness: ARestatement, p. 40. Given this, it is not immediately obvious how an argument such as mine extends to the right to bring in outsiders. My view, developed in more detail below, is chat the basic right co form intimate assoeiarions is protected in the constitutional stage of the four-stage proeess that Rawls discusses in A Theory of Justice. See Theory, revised edition (Harvard University Press, 1971, 1999), pp. 171-176. At the later stages, as the veil ofignorance is progressively Iifred, the parties, for reasons I diseuss below, come 10 see that the same right that protects domestic assoeiation must allow for family-based immigration, if it is to be effeetive. This is done without the eontcoversial atrempts to 'globalize the original position in the way suggested by Thomas Pogge, CharIes Beitz, or Joseph Carens, among others. See Realizing Rawls (Com ell University Press, 1989), Political Theory and In ternational Relations (Princeton University Press, 1979, 1999), and 'A1iens and Citizens: The Case for Open Borders'. in Kymlicka (ed.), The R gi hts ofMinority Cultures (Oxford University Press, 1995), pp. 33 1-349, respectively. Seyla Benhabib, in The Law of Peoples. distributive justice, .nd migration', chapter 3 in her The Rights ofOthers: Aliens, Residents, and Citizens (Cambridge University Press, 2004), diseusses what she sees to be eertain pathologies in Rawls's aecount of international justiee, .nd draws conclusions from this for immigration poliey. I believe that her aecount is systematieally distorted by an ineorreet understanding of how the 'c1osed soeiety' premise in Rawls' s argument funetions , as weil as other significant misreadings of Rawls, but I eannot pursue this issue in more depth here. See Benhabib. The Rights ofOthers, pp. 71-128, and espedally pp. 85- 93.

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The same condusion can also be reached by focusing on the idea of'deliberative freedoms', as developed by Sophia Moreau in recent work. These are 'freedoms to have our decisions ab out how to live insulated from the effects of normatively extraneous features .. .'. This entails, Moreau argues, that 'In a liberal society, each person is entitled to decide for herself what she values and how she is going to live in light of these values'. 22 If our deliberative freedoms relating to forming associations, especially intimate associations, are to be effective, they must be protected as a matter of right. Bur, as I shall demonstrate below, in the case of intimate associations such as the family, if this deliberative freedom is to be effective, it must allow for family-based immigration. However, as I shall also demonstrate, other forms of association do not entail a right to immigrate. Importantly, what is protected by the right in question he re is the right to form certain sorts of relationships or assodations, not the right to be successful in any such attempt. The state cannot, of course, guarantee that anyone will benefit from any particular assodation, or that an attempt to form an intimate association will be successful, nor is compensation for such unhappy attempts necessary. It is not the happiness of individuals that is guaranteed here, but their basic freedoms and liberties. A person who is unlucky in love may have the same subjective feeling of despair as a person who was prevented from forming a relationship she wanted to because of legal rules, but only the second one has been wronged. But, while freedom of association in general is important and protected by all liberal states, not all types of assodations are given the same sort or degree of protection. As a general rule, the more intimate and dosely-knit an association is, the fewer restrictions the state may put on the assodation. 23 Examples from employment and housing law can help make this point dear. First consider employment law. 22 Moreau, Sophia, 'What is Diseriminarion?', Philosophy and Public Affairs 38(issue 2): (2010), 147. Moreau uses this idea to diseuss discrimination, not speeifieally assoeiation, but it seems to me easily applicable to both ideas. 23 This is not to imply rhat other fonns of assoeiation, sueh as politieal assoeiation or labor organization, are not extremely important. They are, which explains w hy sueh rights must be proteeted in any state, if it is to be just. But note how the same sort of anti-diserimination limits that I diseuss below have been imposed in the ease of politieal and labor organization, showing how, even though these are important forms of assoeiation, they may still be regulated for broader purposes in a way we do not think intimate assoeiations may. See, for example, Smith v. Atlwright, 321 V.S. 649 (1944), finding the Texas 'white primary' unconstitutional. Labor organization may stretch over borders as weil, though it is not dear that sueh aetivities must involve immigration, as opposed to more temporary forms of movement. I discuss related issues below.

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A business is a sort of association and those who control such associations have a large degree of discretion in setting the terms of association. They may, for example, require standards of dress and grooming, and can set minimum requirements for positions. But, in most cases, businesses may not discriminate on the basis of race or sex. 24 Here we see one liberty traded off against another, where freedom of association is limited to protect people from arbitrary discrimination. 25 But, there is an exception to this rule: businesses that employ less than fifteen employees are exempt from anti-discrimination rules. We find a sirnilar pattern in fair housing laws. In general, those seeking to seIl or rent housing may not discriminate on the basis of race or farnily status.26 But again there is an exception. If an owner is renting rooms in a home which she occupies, she is exempt from these rules. In both of these cases we see a pattern. The more intimate an association, the less subject to limitations by non-members it is allowed to be. üf course, this rule is not absolute - it too must be balanced against other basic liberties. If a certain form of association made the development of the moral powers impossible, for example, we would have good reason to regulate it no matter how intimate it might be. This can explain why we do not give parents full discretion in raising their children, for example, even though this limits farnilial (and other) association. It can also help explain why we do not allow child or, more controversiaIly, polygamous marriages. 27 Tide VII of the Civil Rights Aet of 1964 ("Tide VII'). George Kateb has argued that such trade-offs are in alm ost all eases illegitimate and that freedom of .ssoeiation may be Iimited only to proteet the 'vital claims reaehing to the Iife, Iiberty, or property of others' from serious harm. See Kateb, 'The Value of Assoeiation' in Amy Gutmann (ed.), Freedom of Associatioll (Prineeton Universiry Press, 1998), p. 40. Kateb claims that his position is both the morally right one and also the one that follows from the best interpretation of the US Constitution, despite the fact that the Supreme COUlt has consistently rejeeted his aecount. His more basic claim is that any approach rhat does not grant near unlimited rights of fTeedom of assoeiation cannat rake it to be a basic right but must see it as merely instrumental to the exercise of some other basic right such as freedom of speech. This is, Ibelieve, amistake, since we might weil think that basic rights may be traded off against each other so as to haye the largest or most adequate scheme of rights without thinking that any one must be redueible to or merely instrumental for the exereise of anothet. Given this, I shall not further argue against the claim that alm ost any limitation on freedom of assoeiation is illegitimate. 26 Fair Housing Aet of 1968, as amended in 1974 and 1988, 42 USC § 3601-19, 3631. Some eities bave even stronger fair housing regulations. 27 It seems unlikely that polygamous marriages are always or neeessarily harrnful. To the extent that they are not, tbey ought not be prohibited. But, in many aetual cases it does seem that polygamy is part of a pattern of dornination of women by men. To the extent that the praetice of polygamy keeps women from being able to be autonomous it is reasonable to regulate it. For a particularly interesting disellssion ofhow polygamy might restriet the development ofthe mora l powers (though not put quite in these terms) see Green, Lectures 011 the Prillciples of Political Obligation, pp. 235-236. A somewhat similar argument is made by Thom Brooks in his paper, 'The Problem wirh Polygamy', available at http: // papers.ssrn.com / sol3 1papers.cfrn?abstracUd= 1331492. Z4

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However, importantly for my argument, very few regulations on marriage and the family are acceptable. This is so since the family is the most intimate of all associations. The right to marry and form a family according to one's wishes is one that the U.S. Supreme Court has found, on a number of occasions, to be a 'fundamental right' , one that can be restricted only for the strongest of reasons. 28 Although the Supreme Court does not use this terminology, I would argue that this right can be limited only to protect other basic liberties for all. It cannot, if astate is to be just, be limited for the sake of less basic liberties, or for gains in economic efficiency. And, if other forms of association are less fundamental than marriage, the right to marry may not be limited because of them. States may legitimately29 wish to limit immigration for reasons such as to better promote internal justice, to control population growth, and, within limits, to help shape the sort of communities that they wish to be. Some of these considerations are considerations of promoting efficiency. Others are designed to promote important duties of justice and basic liberties, among them freedom of association. This is the right invoked by Walzer when he argues for the rights of countries to limit immigration so as to form 'communities of character, .30 Similar arguments have been put forth in recent times by Joseph Raz and Avishai Margalit and by David Miller. 31 The argument, however, is an old one. Gouverneur Morris made such an argument during the constitutional convention in Philadelphia, when he argued that, 'every society from a great nation down to a club had the right of declaring the condition on which new members should be admitted'.32 In all of these cases the argument is, or can be, cast in terms of freedom of association, where this is seen as necessary for the 28 See Turner v. SaJley, 482 U .S. 78 (! 987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Skinn37 He says that "[w]hat public reason asks is that citizens be able to explain their vote to one another in terms of a reasonable balance of public political values."38 I believe Rawls means to require a sincere justification. I also believe that explicit reliance. on the Church's authority, even for one link in an argument that is generally cast in terms of public reasons, wou1d violate the constraints of public reason. I conelude that, for Rawls, Carol shou1d not rely explicitly on the Church's authority, nor shou1d she rely publicly on "public reason" arguments-for the high moral status of the fetus-in which she does not really believe. Thus, if she constrains herself according to public reason, Carol should not support a constitutional amendment to allow more restrictive ru1es about abortion.

35. 410 U.S. 113 (1973). 36. Quasi-public citizens include presidents of major corporations and universities and writers of national columns-people who consistently occupy pUblic, nongovemmental positions. 37. RAWLS, supra note 1, at 217. 38. Id. at 243; see id. at '116-27, 246.

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1 am not sure Raw]s has considered any example quite like this; possibIy he does not believe any such exampie is soundly conceived. Objection might be taken to the example on the ground that abortion is a highly unusual problem. At the New Orleans conference,39 Rawls indicated that for constitutional essentials he mainly had in mind more basic political structures and traditionalliberties. 1 shall offer another example that is Iess stark but falls closer to the core of politicalliberties. It involves freedom of religion. In Corporation 0/ the Presiding Bishop v. Amos ,40 the Supreme Court considered a constitutional challenge to an exception to TItIe VII that allows religious organizations to discriminate on religious groundS.41 Appellee Mayson had been fired from bis job as a building engineer at the Deseret Gymnasium, a nonprofit facility owned and run by organizations of the Church of Iesus Christ of Latter-day SaintS.42 He was fired because he had failed to qualify for a "temple recommend," certifying that he was a member of the Church in good standing, eligible to attend its temples.43 Mayson's constitutional claim was that the existing exemption for religious organizations from antidiscrimination rules was an unconstitutional establishment of religion because it exempted nonreligious as weIl as religious activities.44 The Supreme Court sustained the law on the basis that there was good reason to avoid having courts decide wbich activities are religious and which are not.4S Concurring opinions emphasized that nonprofit organizations were involved and that the validity of such a broad exemption for profit-making activities remained open.46 As Iustice Brennan recognized most explicitly, two competing aspects of religious liberty were at stake.47 The coercion that the provision permits-a religious organization can effectively tell an employee he must conform or lose bis job-"is in serious tension with our commitment to individual freedom of conscience in matters of religious belief."48 However, 39. Jurisprudence Section Program, Association of American Law Schools Annual Meeting, New Orleans, La. (JaD. 8, 1995). 40. 483 V.S. 327 (1987). 41. Id. at 329-30. 42. Id. at 330. 43. 44. 45. 46.

Id. Id. at 331. See id. at 339. See id. at 340 (Brennan, J., concurring); id. at 346 (Blackmun, J., concurring); id. at 349 (O'Connor, J., concurring). 47. Id. at 340 (Brennan, J., concurring). 48. Id. at 341 (Brennan, J., concurring).

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"religious organizations have an interest in autonomy in ordering their internal affairS."49 What I want to discuss is not the Court's decision of the constitutional issue, but the legislative choice that preceded it. Congress could have provided no exemption, exempted only religious activities, or exempted all activities. It could have provided a broader exemption for nonprofit activities than profit-making activities. I believe public reasons firmly establish that religious organizations should be able to discriminate on religious grounds for jobs with serious religious significance. Thus, some exemption is definitely called for. Whether for nonprofit activities the exemption should be full or limited to religious jobs is a hard question. Suppose Carl must decide which position to support. Carl believes that public reasons ean plausibly support either position. He thinks, on balance, the public reasons favor the full exemption, whieh aeknowledges ehureh autonomy and obviates the problem of judicial categorization at the edges. But Carl's eomprehensive view leads him to think organized religion has had, and will eontinue to have, a devastating effeet on genuine human autonomy. Can Carl, subject to the constraint of public reasons, properly support restricting the exemption in the manner that would be regarded as desirable according to his comprehensive view? Carl's choice elosely resembles Carol's about the abortion amendment. My sense of Rawls is that Carl should stick to public reasons in deciding what to do unless the result is so offensive that his comprehensive view overrides the grounds for adhering to public reason.so This illustration shows that even though public reasons may render overwhelming support for the coneept of eertain liberties and the eore of their applieation, there will-be at the edges elose questions where public reasons are fairly evenly balanced. Why, in such circumstances, should legislators and citizens need to focus on public reasons alone rather than introducing eomprehensive perspeetives into their assessments? If the implications of Rawls's view are as I have indieated, bis eonstraints of public reason do impose somewhat sharper limits on the use of comprehensive views than I believe are appropriate.

49. Id. (Brenn an. J .•concurring). 50. Perhaps it takes less to override a modest departure from public reasons than a gross one.

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GENERAL CONCLUSIONS ABOUT LIBERAL DEMOCRACIES, OR

SOME MORE LIMITED REACH

I turn now to my third problem, which involves doubts about how much may be said concerning public reason for liberal democracies in general. More particularly, I have doubts that respect for citizens as equals requires the precise understanding of public reasons that Rawls presents or any other precise understanding. The discussion so far strongly supports these doubts. Constraints of public reason involve reciprocal self-restraint. I, as a legislator or citizen, do not rely directly on my comprehensive view to resolve particular issues like abortion; you, in turn, do not rely on your comprehensive view. People give up something in return for protection from impositions by other people. Why should we suppose that retlective, reasonable people in a liberal democracy will believe that such an exchange of restraints is called for? This is a tremendously complicated question. First, we may agree with Rawls that people will want to protect their own right to practice their religion or other comprehensive view.S1 For this reason, they will agree on substantialliberty to believe and practice comprehensive views. But not every reliance on one comprehensive view involves an imposition on other comprehensive views. Decisions about environment al protection based on comprehensive perspectives, for example, will not typically impinge on the beliefs and practices of those with other comprehensive perspectives. Why might people agree on restraints of public reason that reach beyond instances of imposition? Rawls stresses the plurality of comprehensive perspectives that will exist in liberal democracies.S2 But, I think one cannot easily move from this proposition to a standard of public reasons. One needs to address the degree of mutual trust of political judgments based on comprehensive perspectives, and people's sense of the constellations of various views. Very brietly, one might have a high degree of trust that people with other comprehensive views will, when they rely on them, reach conc1usions that are acceptable. For example, I consider myself a liberal Christian. My comprehensive view is far removed from that of law faculty colleagues who are atheists, yet I would feet considerable confidence in being govemed according to political decisions they made that fit with their comprehensive views. Also, if one believes that comprehensive views themselves are so diverse that one 51. See RAWLS, supra note I, at 220-22. 52. Id. at 243-44 & n.33.

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has tiftle to fear if decisions are reached by individual citizens and legislators in accord with comprehensive views, one might not worry much about their employment. Of course, some people might fear their use even if most people did not, but these people might equally fear decisions based on public reasons. What I am driving at is that cultural factors peculiar to individual societies williargely determine whether constraints of reason will seem required by fairness and stability. These factors will also largely determine what the appropriate constraints are. We should be suspicious of the idea that analysis of the conditions of liberal democracy in general will yield any fairly preeise line between constitutional essentials and ordinary issues and will also yield some subtle demarcation of how far comprehensive views can figure in the development of positions based on public reasons. Perhaps on these points all liberal democracies are sufficiently similar, but I do not suppose that the constraints appropriate for a homogeneous society like Sweden will necessarily be the same as those appropriate for a country as diverse and contentious as the United States. Let me state more specifically the way in which the earlier anaiysis bears on this problem. If one understands how complicated and disputable some of the distinctions proposed or implied by Rawls are, one must doubt that any constraints with such degree of precision can be drawn from general conditions of liberal democracy. My doubts on this score illustrate how I differ from Rawls in thinking that more depends on particular cultures and stages of history and less on general propositions about forms of government. I believe the subject of public reason needs to be addressed retail, rather than wholesale. My own conclusions about public reason in the United States do not rely on any distinction between constitutional essentials and other issues. The result is that ordinary citizens should regard themselves as much less constrained and legislators somewhat less constrained than Rawls asserts with respect to constitutional essentials; but legislators and quasi-public citizens should consider themselves more constrained than Rawls suggests for ordinary issues.

[10] CAN A LmERAL TAKE HIS OWN SIDE IN AN ARGUMENT? TUE CASE FOR JOHN RA WLS'S IDEA OF POLITICAL LmERALISM RONALD C. DEN OTIER * Critics of liberal theory have long insisted that liberal democracies cannot inspire the kind of patriotism that motivates citizens to make sacrifices for the polity. I As Alasdair MacIntyre once put it, being asked to die for the modern liberal state "is like being asked to die for the telephone company.,,2 This critique of liberal citizenship, which is closely aligned with the civic republican tradition, is based on the belief that good citizenship requires deeply shared values or a common defmition of the human good life? One of the

* Ph.D.• 2003. University of Califomia. Los Angeles; J.D.. 1992. University of Pennsylvania Law School; B.A.. 1989. University of California. Davis. The author would like 10 thank Andy Sabl. Brian Walker. Andrew Lisler. Michael Goodhart. and Dana Yi for all of their help. I. See. e.g .• Michael J. Sandei. The Procedural Republic and rhe Uneneumbered SelJ, 12 POL. THEORY 81 (1984); MICHAEL J. SANDEL. DEMOCRACY'S DISCONTENT: AMERlCA IN SEARCH OF A PuBLIC PHILOSOPHY 3-24 (1996); Charles Taylor. Liberal Politics and the Public Sphere. in PHILOSOPHICAL ARGUMENTS 257.276 (1995); Gertrude Himmelfarb. The Illusions of Cosmopoliranism, in MARTHA C. NUSSBAUM. FOR LoVE OF COUNTRY: DEBATING THE LIMITS OF PATRlOTISM 77 (Joshua Cohen ed .• 1996). See also LIBERALISM AND ITS CRlTICS (Michael J. Sandei ed .• 1984) (Generally, this critique tends to assurne that patriotism must be based on socalled "givens" of human life: ancestors, farnily, religion, history, cuIture, tradition, and nationality.). As such. its political implicalions tend 10 be conservative. From the other end of the spcctrum, postmodernists take liberal values to task for being incapable of accommodating morally important differences. See. e.g., Iris Marion Young, Survey Anicle: Rawls's Political Liberatism, 3 J. POL. PHIL. 18 I, 181-90 (1995). 2. Alasdair Maclntyre, A Panial Response /Q my Critics, in AFTER MACINTYRE: CRmCAL PERSPECTIVES ON TIlE WORK OF ALASDAIR MACIINTYRE 283, 303 (lohn Horton & $usan Mendus eds .• 1994). 3. For a discussion ofthe different Iypes of communitarians. see John R. Wallach. Liberols, Communitarians, and the Tasks of Political Theory, 15 POL. THEORY 581 . 591-92 (1987). For a discussion of the different vers ions of communitarianism. see Allen E. Buchanan, Assessing the Communitarian Critique of Liberalism, 99 ETIlICS 852 (1989). On the civic republican revival in legal scholarship. see Frank Michelman, Law 's Republic. 97 YALE LJ. 1493 (1988); Cass R. Sunslein. Beyond the Republican Revival. 97 YALE LJ. 1539 (1988); MARK TuSHNET. RED, WHITE, AND BWE: A CRITICAL ANAL YSIS OF CONSTITUTIONAL LAW (I988). On the similarities and differences between communitarians and civic repubticans, see Nomi Maya Stolzenberg. " He Drewa Circ/e rhar Shur Me Out": Assimilation, Indoctrination, and the Paradox of a Liberal Educa/ion. 106 HARV. L. REv. 581 (1993). Although the most famous contemporary expositions

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primary functions of a substantive moral consensus in these neorepublican accounts is to generate the right kind of moral motivation on the part of citizens, thereby enabling them to fulfill their civic responsibilities. 4 The thin values of minimalist liberalism, these critics warn, cannot hold a society together over time. 5 This "nonviability" objection lies at the heart of neorepublican critiques of liberalism. 6 One might expect liberals to try to parry these charges by arguing that widespread commitment to liberal values such as constitutionalism, limited government, due process of law, individual rights, freedom of conscience, and tolerance could sustain the common sentiments that would underwrite the practice of good citizenship in a liberal democracy. This response would appear to allow liberals to claim that their own substantive values could be equallyeffective in cultivating the requisite patriotic sensibilities.7 The kind of civic virtue that a liberal society requires, then, even in the absence of a shared understanding of the good, would not need to be too far removed from a deeper moral consensus that could serve as the basis of sodal unity. In addition, by relying on such substantive values, Iiberals could answer the allegation that their commitment to individual freedom or autonomy leads to an "anything goes" kind of moral relativism that encourages people to not believe in anything very deeply.8 in political theory of civic republicanism are historiographical, the author is interested exc1usively in its normative politieal impliealions for a modem liberal democracy such as our own. For this reason, this Article focuses on Charles Taylor's version of civic republicanism. 4. In this paper, I subsurne communitarian and civic republican concems about the quality of citizenship in liberal democracies under the term "neorepublican." There are important differences, of course, between various forms of communitarianism and various forrns of civic republicanism. What!hey have in common, though, is a belief that liberal societies do a very poor job of inculcating civic virtue in their citizens. 5. The term "minimalistliberalism" is found in SANDEL, supra note 1, at 18. 6. Charles Taylor coined the "nonviability" objection. CHARLES TAYLOR, CrossPurposes: The Liberal-Communitarian Debate, in PHlLOSOPHICAL ARGUMENTS 181 , 194 (1995). John Rawls has been one of its favorite targets. His critics eOßlend that his theory of justice is too far removed from a shared social understanding of the good, rendering his well-ordered society inherently unstable. 7. See. e.g., WILLIAM A. GALSTON, LIBERAL PURPOSES: GOODS. VIRTUES, AND DIVERSITY IN THE LIBERAL STA TE 165- 237 (1991). 8. This Article does not take a position on whether autonomy. negative freedom, tolerance, or value pluralism. or a combination of them, defines the moral eore of liberalism. Over time, there have been many different self-described liberals who have had many different value commitments. For example, Isaiah Berlin believed that liberalism was eompatible with value pluralism and thought that a strong commitment to negative liberty followed from ilS existence. Isaiah Berlin, Two Concepls 0/ Liberry, in LIBERTY 166 (Henry Hardy ed., 1969). More recently, John Gray has eontended that value pluralism and negative Iiberty do not fit together. JOHN GRAY. ENLIGHTENMENT' SWAKE: POLITICS AND CULTURE AT THE CLOSE OF THE MODERN AGE (1995). In response, William Galston has argued that value pluralism. as distinguished from value relalivism. most accurately describes our moral universe and that "liberal democracy is Ihe

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A thicker conception of good liberal citizenship, however, would seem to run afoul of the moral pluralism that characterizes contemporary liberal democracies. 9 After all, to be a liberal is to believe that competent adults can be left alone to form, revise, and pursue their own conceptions of the good. 1O In principle, this commitment to the separation of human flourishing from political morality means that liberal states should not take sides in public debates over competing reasonable conceptions of the goOd. 11 That the moral motives that make the exercise of good citizenship possible would have to be predicated on deep and inevitably controversial beliefs about the proper place of civic virtue in a good human Iife would appear to be a decisive reason against trying to put a more civic republican conception of citizenship into practice. Neorepublicans are right to insist that the state cannot be indifferent to how children are prepared for their future roles as citizens. 12 However, the development of the right civic attitudes should not come at the excessive cost of denying the equal right of all citizens to formulate their life plans, including those who do not value political participation or patriotic self-sacrifice. This Article explains how political liberaIism, as distinguished from comprehensive forms of liberalism, 13 reduces the tension between the need for most nearly successful effort to cope decently with the vicissitudes of politicallife." William A. Galston, Value Pluralism and liberal Political Theory, 93 AM. POL. SCI. REv. 769, 769 (1999). These goods are plural because they "cannot be reduced to a common measure of value." Id. at 769-78. Nor can these goods "be fully rank-ordered" in the sense that interpersonal comparisons are possib1e. Id. See also, WrLLIAM A. GALSTON, LIBERAL PLURALlSM: THE IMPLICATIONS OF VALUE PLURAL1SM FüR POUTICAL THEORY AND PRACTICE (2002). On the problem of value incommensurability, see GERALD F. GAUS, CONTEMPORARY THEORIES OF LlBERALlSM 31-41 (2003). 9. More than fifteen years ago, Don Herzog raised similar concerns about the eXlenl 10 which more hislorical understandings of civic republicanism, such as Ihose of J.G.A. Pocock and Quentin Skinner, could be a real option for us today as an alternative to liberalism. Don Herzog, Some Questionsfor Republicans, 14 POL THEORY 473 (1986). 10. Although the definition of a liberal can be contested, Will Kymlicka has argued that individual human rights approaches, such as freedom of speech, of association, and of conscience, do not adequately protect national and ethnic minority cultures. Therefore, traditional liberal human right~ principles must be supplemented by a theory of group-differentiated rights for such cultures to prevent forced assimilation. WILL KYMLlCKA, MULTICULTURAL CmzENSHIP: A LIBERAL THEORY OF MrNORlTY RIGHTS 3--6 (1995) . 11. A conception of the good is "reasonable" when it does nOI harm others or does not unfairly infringe upon their equally imponant right to pursue their respective ways of Iife. Tbe conccpt of "neutrality" is relatively new to the liberal tradition. JEREMY WALDRON, LIBERAL RrGHTS: COLLECTED PAPERS 1981-1991 (1993). On the idea of liberal neutrality toward reasonable conceptions of the good, see BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 1\ (\980); RONALD DWORKIN, AMATIER OfPlNClPLE \27 (1985). 12. Cf Charles Taylor, Why Democracy Needs Patriotism, in FOR LOVE OF COUNTRY: DEBATING THELIMITS OFPATRIOTiSM, supra note I, at 120. 13. As opposed to political liberalism, comprehensive or ethical liberalism is based on a conception of the good premised on autollomy, individuality, or negalive freedom.

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minimal ci vic virtue and the existence of reasonable moral pluralism in modern liberal democracies. 14 This Article also challenges the neorepublican thesis that a common conception of the good based on patriotism must support the practice of good citizenship and offers an alternative, derived from John Rawls's idea of public reason, that attempts to accommodate the moral, religious, and cultural beliefs of reasonable but non liberal citizens. 15 At the 14. But see Amy Gutmann, Civic Education aruJ Social Diversity, 105 ETHICS 557 (1995); Eamonn Callan, Political Liberalism and Political Education, 58 REv. POLITICS 5 (1996). 15. For Rawls' s original theory of public reason, see JOHN RAWLS, POLlTlCAL LIBERALlSM 212-54 (1993) [hereinafter, RAWLS, POUTICAL LIBERALlSM]. For his more recent views on public reason, see JOHN RAWLS, JUSTICE AS FAIRNESS: ARESTATEMENT 89-94 (Erin Kellyed., 2001); John Rawls, The Idea of Public Reason Revisited, in THE LAW OF PEOPLES 131 (1999). See generally Kent Greenawalt, On Public Reason, 69 CHI.-KENT L. REV. 669 (1994); Lawrence B. Solum, Constructing an Ideal of Public Reasoll, 30 SAN DIEGO L. REv. 729 (1993); Bruce W. Brower, The Limits of Public Reason, 91 J. PHIL. 5 (1994). As Samuel Freeman puts it, "[p]ubJic reason is defined against a background of democratic institutions. Tt presumes that citizens take democratic institutions seriously and are committed to maintaining them." Samuel Freeman, Deliberative Democracy: A Sympathetic Commellt, 29 PHIL. & PUB. AFF. 371, 398 (2000). For Rawls, public reason is supposed 10 map the kinds of reasons and arguments that publicly justify votes on fundamental political questions. Voting is nOI a private act because it is an indirect exercise of coercive political power and thus ought to be actually justified or, at least in principle, be justifiable to all reasonable persons. To produce legitimate collective decisions, citizens must refrain from voting according to reasons that are nonpublic, that is, those that are insufficiently impartial. Above all, the ideal voter must avoid basing her vote on mere preferences. Voting on such a basis might be morally acceptable if the outcome did not affect the lives of others. Whether one has a preference for chocolate over vani 11a ice cream, for example, would seem to be a matter of personal taste that could be left solely to the individual . On the other band, some preferences, such as racial bigotry and misogyny, should not be counted at all in detennining the legitimate grounds of pubJic law. When decisions affect others and have the force of law, mere preferences are not the proper basis for political choice because as the moral basis of law, they must also be supported by reasons that can be justified to others . Similarly, one of the primary functions of judicial review is to modify or reject these preferences so that ordinary democratic poJitics does not produce morally objectionable resuIts . This is also the normative impetus behind theories uf deliberati ve democracy that aspire to justify political decisions publicly tu respect the freedom and equaJity of all of the members of the political community. Voting appropriately, then, requires self-restraint on the part of citizens who must guard against relying upon reasons that are too partial to win the assent of others. The kinds of reasons that citizens typically offer their fellow citizens are likely to be too partial in the sense of being either 100 self-interested or too sectarian. Under conditions of moral pluraIism, 10 legitimate collective decisions on fundamental political questions is to speak the same normative language, to find mutually acceptable reasons, and to converge on a range of sintilar solutions. People remain Catholics, lews, Muslims, BuddhislS, and atheists in their private Jives, but when they enter the public realm as citizens, they must be willing 10 treal others fairly . Otherwise, their collective decisions will not be legitimate in the sense that dissenters have been given sufficienl reasons to comply with them. At minimum, political legitimacy means justified coercion . In fact, thc refusal of dissenters to acknowledge the authority of regulatory political principles would seem to be warranted when these principles are not supported by reasons thaI are widely acceptable under conditions of moral pluralism. Their legitimacy might be successfully

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very least, to be a good citizen in a liberal democracy is to have CIVIC competence, that is, to have a set of deliberative, casuistic skills that enables a person to offer her fellow citizens mutually acceptable reasons in the process of legitimating collective decisions. 16 This conception of citizensbip calls for a civic attitude that acknowledges the inevitability of reasonable disagreement about the good in a free society and an ideal of civic virtue that is grounded in a moral commitment to respect the freedom and equality of everyone. 17 That does not mean, though, that a1l forms of religious, moral, and cultural pluralism should be accommodated or even tolerated. The indiscriminate postmodemist embrace of difference overlooks practices tbat are deeply inegalitarian and, thus, are incompatible wirb the promotion of civic attitudes

challenged on the grounds that their underlying justification is too controversial or too uncertain to secure either the actual or the hypothetical consenl of all reasonablecitizens. Public reason is primarily about the legitimate grounds of coercion in a society such as our own. Because those who do nOI obey public laws can be legitimately coerced, these laws must be justified from as many moral, religious, and cultural standpoints as possible. The concem is that unreasonably forcing people to conform to other people's judgments about how to live is deeply wrong and may even destabilize existing political arrangements. What would constitute sufficient justification under conditions of moral pluralism. however, is far from obvious, especially in hard cases. When the legitimacy of regulatory political principles is at issue, the problem with allowing citizens to introduce any argument whatsoever into public deliberation is that a morally diverse audience is unlikely to have much in common at deeper theoretical levels . The purpose of public deliberation in the public sphere on constitutional essentials and matters of basic justice, for Rawls, is to render them legitimate from a11 reasonable comprehensive standpoints. Such deliberation is not Iikely to serve its designated purpose when citizens appeal to their deeper convictions. Their insistence that the truth of their deeper convictions can serve as the proper basis of the exercise of slate coercion cannol lead 10 public justification under conditions of moral pluralism and, thus, cannOl generate politicallegilimacy. The fact that one sincerely believes thaI homosexuality is immoraI, for instance, would not be a sufficiently compelling reason to justify the prohibition of same-sex marriages or 10 criminalize gay and lesbian relalionships. For Rawls, voting on the basis of such a nonpublic reason would not satisfy the criterion of reciprocity implicit in public reason. A citizen who does not vote according 10 public reason displays a deeply wrong willingness 10 coerce her fellow citizens on the basis of nonpublic reasons. In effecI, such a vOle derties dissenters !heir right to live in a way that is morally perrrtissible even if it may not be morally right, virtuous, or rational. Rawlsian citizenship is predicated upon the belief that public reason demands nothing less than strict self-restraint on the part of the members of the political commurtity when their vOles (or those of !heir elected representatives) may eoeree others. When !hey vote appropriately, citizens establish reciprocal limits on external ends that they and their fellow citizens may permissibly seck. These are the only means through which the freedom and equality of all reasonable citizens can be adequately respecled. To practice public reason is to lolerate religious. moral, and cultural difference as mueh as possible. On the difficulty of tolerance, see T.M. Scanlon, The Difficulty 0/ Tolerance, in TOLERATION: AN ELUSrvE VIRTUE 226 (David Heyd ed. , 1996). 16. See. e.g., AMy GUTMANN, DEMOCRATIC EDUCATION (1987). 17. On the idea of reasonable moral disagreement and its connection to political liberaIism, see Charles Larmore. Pluralism and Reasonable Disagreement, SOC. PHIL. & POL'y, Winter 1994, at 61.

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that would help to ereate a more just, more demoeratie soeiety in whieh eaeh person has a roughly equal share of personal freedom and politieal influenee. 18 Sirnilarly, exeessively strong versions of religious pluralism should not be eelebrated when they pfevent children from internalizing norms of publie reason that are supposed to guide their civic behavior in the future. Onee we reject extremes that either take differenee too seriously or not seriously enough, we must determine how a 50ciety of ffee and equal citizens can prepare its children for citizenship without seriously eomprornising reasonable moral pluralism. 19 The central premise of this Article is that a trade-off between these two equally important considerations cannot be avoided and that there are better and worse ways of striking a balance between them. 20 As a number of critics have noted, Rawlsian citizenship, which requires a comrnitment to politieal autonomy, may be at odds with conceptions of the good that value other goods above autonomy or do not value autonomy at al1. 21 It is unrealistic, they maintain, to believe that the praetice of public reason will leave everything intact in the background culture. 22 For this reason, as much as possible, civic education must be approached in a way that incorporates an idea of reasonableness that is largely independent of controversial ethical ideals of Lockean freedom, Kantian autonomy, and Millian individuality?3 This Article contends that being reasonable, for political purposes, does not require a comrnitment to deep ethical (personal) autonomy and puts forth a model of civic edueation that relies on a much weaker conception of autonomy

18. See generally SUSAN MOLLER OKlN, 15 MULTICULTURAUSM BAD FOR WOMEN? (Joshua Cohen et al. eds., 1999); BRIAN BARRY, CULTURE AND EQUALITY: AN EGALITARIAN CRITIQUE OF MULTICULTURALlSM (200 I). 19. EAMONN CALLAN, CREATING CITIZENS: POUTICAL EOUCATION AND LIBERAL DEMOCRACY 12 (1997). 20. Put differently, without argument, this Artic1e assurnes that liberals often find themselves in the awkward position of (I) figuring out the limit. of tolerance when religious, moral, or cultural practices threaten liberal values and (2) what tolerance on the part of citizens and neutrality on the part of the state might mean in pmicular cases, especially those in which nonliberal minority groups requcst exemptions from generally applicable laws or special treatment to preserve their traditional way of life. Under conditions of this kind of pluralism, the right liberal response .to any particular case ought to take into account both the rights of individuals in nonliberal groups to be left alone, at least to some degree, and the interest of the liberal state in ensuring that the values of individual freedom and tolerance will be reproduced over time. That is, liberals must take their own side in an argument when the future of liberal citizenship is at stake. The difficult political problem, then, is to know when the state should enact legislation against nonliberal practiccs that are likely to undermine the moral psychology of ordinary citizens that makes good liberal citizen,hip possible. 21. RAWLS. POUTICAL LIBERALISM, supra note 15, at 77-81. 22. Callan, supra note 14, at 12-17. 23. "Reasonableness" is the actual practice of public reason both in public deliberation and in voting decisions on fundamental political questions.

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that is less likely to threaten nonliberal ways of Iife. 24 Ihis Article also challenges the mi staken belief that normative political theory has little to contribute to real political problems. 25 Indeed, this Article will show why normative political theory is indispensable in helping us to determine where lines should be drawn in legal controversies that involve requests by minority groups for cultural or religious accommodation. 26 Ihis Article will be divided into the following seetions: Part I will outline Charles Iaylor's civic republican critique of proceduralliberalism to explain why he believes that civic virtue must be predicated on a particular, widely shared conception of participatory self-rule. Part II shows why comprehensive forms of liberalism do not adequately accommodate moral pluralism due to their preoccupation with advancing autonomy, individuality, or self-expression as a liberal conception of the good. Part III speIls out the merits of lohn Rawls's idea of politicalliberalism under conditions of moral pluralism, why his notion of reasonableness can be sufficiently separated from deeper ideals of ethical autonomy to appeal to a wider audience, and why this kind of reasonableness is the right kind of civic attitude for those who must live together in a liberal democracy. It then offers abrief account of liberal democratic civic education, derived from this sort of reasonableness, and makes the case that this kind of civic education should be morally acceptable to all reasonable people.

24. The idea of "political" autonomy is that citizens are to be autonomous only in their role as citizens. On the idea of "political" liberalism, see Charles Larmore, Political liberalism, 18 POL. THEORY 339 (1990); Bruce Ackerrnan, Political liberalisms, 91 J. PHIL. 364 (1994). For an argument that the appeal of political Iiberalism derives from its commitment to tolerating "diverse ways of li fe and schemes of value," see Samuel Scheffler, The Appeal of Political liberalism, 105 ETHICS 4 (1994). For a fairly recent example of comprehensive Iiberalism, see generally JOSEPH RAZ, THE MORALITY OF fREEDOM (1986). On the contrast between political and comprehensive liberalism, see Gutmann, supra note 14, at 557--{50; Stephen Macedo, liberal Civic Education and Religious Fundamentalism: The Case of God v. lohn Rawls, 105 ETHICS 468, 473-82 (1995). 25. See, e.g., RICHARD A. POSJI,'ER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999). 26. Within the context of public education, for example, to what extent, if any, may parents have religiously objectionable material excluded from the curriculum? Or may they have their children excused when such material is presented? Shelley Burtt, Religious Parents, Secular Schools: A liberal Defense ofan Illiberal Education, 56 REv. POL. 51 , 52 (1994). For a liberal argument about the proper place of patemalism in the education of children, see Amy Gutmann, Children, Paternalism, and Education: A Libera/Argument, 9 PHIL. & PuB. AFF. 338 (1980).

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I. THE CIVIC REpUBLICAN CHALLENGE A.

Charles Taylor's Neorepublican Thesis

Most neorepublicans have not been panicularly forthcoming about their visions of the good society beyond vague, nostalgie appeals to community, tradition, and the social nature of human beings?7 Instead, they have devoted their time to singling out the apparent flaws of liberal theory and practice without offering a viable alternative of their own that would suit modern conditions. 28 By contrast, Charles Taylor's political theory endeavors to say something constructive about the proper place of civic virtue and civic participation in a liberal democracy. 29 His willingness to put forth more than a mere critique of contemporary liberal practice forces us to think more carefully about the kinds of reasons and sentiments that enable ordinary people to think of themselves as members of the same political community and to care about the public good. Indeed, insofar as we have to choose between an ideal of citizenship that is more or less oriented toward civic virtue, the value of Taylor' s scholarly contribution is beyond dispute. In "Cross-Purposes: The Liberal-Communitarian Debate,,,30 Taylor contends that many Iiberals overlook the importance of articulating a sociologically and psychologically realistic account of the social unity that makes the survival of liberal democracies possible. For hirn, the language of civic republicanism and its ideal of participatory self-rule beuer address the possible sources of moral motivation that underwrite the practice of good citizenship, once enlightened self-interest and commitment to universal principle have been ruled out. 3! Taylor points out that while taking an ontological position (a descriptive theoretical explanation of social life) is not the equivalent of advocating anything, ontology limits normative possibilities. 32 Any political theory worthy of our consideration must make realistic assumptions about the kinds of beliefs and sentiments that motivate real people to act morally. Liberals, he insists, must face this issue openly 27. See Stephen Holmes, The Pemument Structure oj Antiliberal Thought, in LlBERALISM AND THE MORAL L1FE 227 (Nancy L. Rosenblum ed .• 1989). 28. See, e.g., MICHAEL J. SANDEL, L1BERAL!SM AND THE LIMITS OF JUSllCE (1982); ALASDAIR MACINTYRE. AFTER VIRTUE (1981); MARY ANN GLENDON, RIGHTS TALK: THE lMPOVERISHMENT OF POLrnCAL DISCOURSE (1991). 29. RUTH ABBEY. CHARLES TAYLQR 107, 124, 158 (2000). In panicular, Abbey ciles Taylor's endorsement of positive freedorn and his attempt to salvage it from the tOlalitarian connotation that Isaiah Berlin had irnputed to it. His attacks on alomism. negative Iiberty, liberal neutralily, and an instrumental view of politics also have a familiar cornrnunitarian tone. 30. TAYLOR, supra note 6. at 181-203. 31. Id.

32. ld. at 183.

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because if human existence is irreducibly social, then the real political choice is not as open-ended as they imagine it to be. The table below depicts the relationship that Taylor envisions between ontology and advocacy (nonnative positions that have political objectives):33 Ontology Atornism

Holism

IndividuaIistic

Robert Nozick Milton Friedman

Wilhelm von Humboldt (Taylor himself)

Collecti vist

H.F. Skinner

Marx

Advocacy

According to Taylor, these theoretical differences have important political rarnifications because where one falls on this table determines the kind of political arrangements that the person favors?4 After ruling out atornistic (excessively individuaIistic) ontology and its corresponding advocacy positions as implausible, he claims that we must decide within the holistic ontological squares between a more proceduraI conception of liberal democracy based on a shared ethic of right (as in the United States) and a more participatory model based on self-rule (as in his native Canada).35 His challenge to the viability of liberal "procedural" principles of justice boils down to his belief that such principles have an inadequate ontological grounding. 36 Real people cannot strongly identify with the right because it is too procedural or too formal to tap their moral imaginations and to inspire patriotic self-sacrifice when necessary. The civic republican thesis is still relevant because civic virtue is not a mere "convergent" good-i.e. a public good Iike national defense or clean air that only can be secured collectivelybut rather is a genuine "common" goOd. 37 A common good, Taylor explains, invol ves dialogical intimacy that aspires to a holistic attitude of "for-us. ,,38 The idea is timt the value of such a good cannot be broken down into the sum

33. See id. at 185. 34. Id. at 182.

35. TAYLOR, supra note 6, at 200--01. 36. Id. at 187. 37. ld. at 190-91. 38. Id. at 190.

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of its parts. Rather, people must experience it together to appreciate its true meaning. For example, people who attend a sporting event are likely to have a much different experience than those who watch the same event on television because of the interplay among the emotional reactions of those in attendance?9 For Taylor, patriotism is a common good that makes participatory self-rule possible. 40 To be patriotic in the right way is to identify with the fate of our fellow citizens. As he puts it, we cannot be expected to "defend[] the liberty of just anyone.,,41 Because procedural liberals fail to appreciate the implications of the tautology that our values are our values, their typical assumptions about what moves human beings to act morally in politicallife are deeply tlawed. A society that endorses the priority of the right pushes the common good of patriotism out the back door. 42 Neither enlightened self-interest nor a shared understanding of the right can generate effective moral motivation on the part of most citizens. 43 For this reason, a democratic society that lacks a widespread commitment to participatory self-rule is more at risk of bursting apart at the seams. 44

B.

The Right and the Good

It is easy to overstate the potential instability of Western liberal democracies, the dangers of depleted social capital, and the extent to which low voter turnouts are a serious sign of civic decIine.45 Indeed, it is likely that Taylor is more concerned about the moral quality of politics in contemporary liberal democracies that aspire to be free in the sense that citizens rule themselves. One of the problems with a shared conception of the good, based on participatory self-rule, is that it is not cIear why Taylor believes that a shared conception of right necessarily rules out the sharing of justice or other principles of political morality as such a common good. In other words, why da citizens have to endorse same version of civic republicanism when they could just as easily share the value comrnitments of procedural liberalism? Nor is it cIear how his neorepublicanism can be squared with the moral pluralism that exists in modem liberal democracies. After a11, a conception of right, provided that it has historical antecedents in the particular political society that it is supposed to govem, may be able to hold that society together

39. See id. at 191. 40. Cf ABBEY, supra nOle 29, al 40. 41. See TAYLOR, supra note 6, at 187-88; SANDEL, supra nOle 28, al 64-65 , 168-73. 42. See TAYLOR, supra nOle 6, at 194. 43. Id. al 196-97. 44. Id. at 199. 45. See, e.g., ROBERT PuTNAM , BOWUNG ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (2000).

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over time by providing the same kind of patriotic identification that Taylor believes to be indispensable to the long-term health of any polity.46 Unfortunately, the phrase "the priority of the right over the good" has generated considerable confusion. 47 This phrase should not be interpreted as an ontological claim or as a kind of perfectionism. 48 The priority of the fight describes the roje thal principles of right or justice ought to play in regulating the collective decision making of human beings thal inhabit the same social space. As Kant wrote: One can think of the relation of end to duty in two ways: one can begin with the end and seek out the maxim of actions in conforrnity with duty or, on the other hand, one can begin with the maxim of actions in conforrnity with duty and seck out the end that is also a duty. - The doctrine 01 right takes the first way. What end anyone wants to set for his action is left to his free choice. The maxim of his action, however, is deterrnined apriori, namely, that the freedom of the agent could coexist with the frecdom of every other in accordance with a universallaw. 49

The "doctrine of right" concems the extemal relations among independent wills that may conflict with one another. 50 In the public realm, principles of right must override contrary aspirations and desires of citizens even when those aspirations and desires are intense. 51 As such, the priority of right restricts the kinds of considerations that can count as legitimate reasons for actions that affect others. 52 It is "a court of appeal [thal exists] above the ideological and sectarian fray" and airns to settle disputes fairly.53 A legitimate reason is one that fully respects the equal right of each person to form, revise,

46. For example, most Americans strongly identify with the rights of free speech, free exercise of religion. and due process that are specified in the United States Constitution. To be an American is to see these constitutional values as our values and to assign them considerable weight in our collective decisions even though we might disagree about how they ought to be specified or balanced againsl each other in particular cases. At the same time, the American political tradition is an eclectic mix of a number of different. and at times conflicting, political ideals. See ROGERS M. SMlTH, CIVIC IDEALS: CONFLICTING VISIONS OF CmZENSHIP IN U.S. HISTORY (1997). 47. See generally Richard 1. Ameson, The Priority 0/ the Right Over the Good Rides Agai,., 108 Enucs 169 (1997). 48. For examples of the misinterpretation, see Michael J. Sandei, }uslice and the Good, in LIBERALlSM AND ITS CRIl1CS 159 (Michael 1. Sandei. ed .• 1984); Robeno Alejandro. Rawls's Communitarianism, 23 CANADIAN 1. PHIL. 75.78-79 (1993). 49. lMMANUEL KANT, The Doctrine 0/ Virtue, in THE METAPHYSICS OF MORALS 147 (Mary Gregor trans., 1996). 50. See id. at 23-24. 51. Samuel Freeman. Utilitarianism, Deontology, and the Priority 0/ Right. 23 PHIL. & PuB. AFF. 313. 336-37 (1994). 52. Id. at 337-38. 53. Macedo, supra note 24. al 481.

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and pursue her own life plans. 54 The claims that citizens put forth to pursue ends transgressing these limits, as Rawls puts it, have no weight. 55 Within the constraints of right, then, citizens are left free to form, revise, and pursue their own ends. The priority of the right also acknowledges the epistemic difficulty of qualitatively Of quantitatively comparing the worth of different human life plans and rejects the political necessity of making these kinds of distinctions. 56 Politically, what matters is not the content of a given li fe plan per se but whether its pursuit is unreasonable in the sense that it harms others or irnpermissibly interferes with their life plans.57 By contrast, the "doctrine of virtue" concerns the ends that ought to be adopted-those that cannot be subject to legislation in civil society because they are internal to the agent. 58 On this deeply Kantian view, virtue is the ability to res ist the puH of one's inclinations and to act on reasons based on universal duties to other rational agents.59 We express OUf true nature-what is best about us as human beings-in rising above particular attachments and transitory concerns. 60 To confuse the doctrine of right with the doctrine of virtue is to mistakenly conclude that the right is just another conception of the good. The point is that principles of right are regulatory. Theyare not pursued Iike other ends but rather are designed to constrain the choices and actions of citizens in the public sphere to enSUfe that everyone is treated with equal concern and respect. 6l

C.

Liberal Community

FoHowing Hege!, Taylor thinks of the right as a conception of the good that is too formal and too procedural to sustain the social bonds that hold a

54. Freeman, supra note 5 I, at 338. 55. RAWLS, POLITICAL LIBERALISM, supra note 15, at 209. 56. JOHN RAWLS, The Righl anti the Good Conlrasled. in LIBERALISM AND ITS CRITICS 37, 49-51 (Michael J. SandeI ed ., 1984). 57. Id. at 49. 58. Kevin E. Dodson, Aulonomy antiAuthority in Kant's Rechtslehre, 25 POL. THEORY 93, 98 (1997). 59. See KANT, supra note 49, at 145. 60. See THOMAS E. HILL JR., THE IMPORTANCE OF AUTONOMY AND SELF-RESPECT 46 (1991). When Rawls states in POLrnCAL LIBERALlSM lhat a Kantian comprehensive doctrine

cannot serve as the basis of political morality, he is referring to Kant's idea of virtue, that is, the ability 10 resisl our inclinations and to act on maxims that pass the Categorical Imperative test. See RAWLS, POLITICALLlBERALISM, supra nOle 15, at 99-101. 61. As Amartya Sen points out, the vast majority of modem theories o f social or political morality make equality of consideration a requirement because these normative theories have to bejustified to others. AMARTYASEN, INEQUALITY REEXAMINED 17 (1992).

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political society together over time.62 lt folIows, then, that liberalism predicated on the priority of the right is incompatible with a stronger sense of community.63 The first part of this charge is true only inasmuch as liberalism is hostile to communities that do not respect the freedom and equality of all of their members. Even the most tolerant liberal cannot tolerate all ways of life, especially those that are intolerant and prone to violence. There is no reason to grant communitarians or neorepublicans the privilege of defining "community," as if by definition liberalism were too individualistic to leave room for a vibrant civil society, voluntary associations, and family life. It should go without saying that liberals very much value the freedom of association that takes place in the background culture. The real issue is not whether community matters, but how it maUers and, more importantly, how community ought to be defined in the first place. To appeal to traditional understandings of community is to beg the question. 64 We must ascertain on normative grounds, then, the kind of community that is most appropriate for a society like our own that must make room for the well-being of individuals and their voluntary associations. This means that we must strike an appropriate balance between the legitimate rights of the individual citizen, including dissenters, and those of others who live in the same political community. This also means that we must try to find reasons that go beyond uncritical appeals to tradition or to nostalgic notions of solidarity that gloss over the well-known pathologies of communities. After all, individuals, as opposed to communities, are the objects of moral concern. A thoughtful response to this question about the character of a community that treats the life plans of all citizens as equally as possible requires a theory of justice that can arguably mediate, if not resolve, inevitable political disagreements about how moderately scarce resources, rights, duties, and the benefits and burdens of social cooperation should be allocated.65 A neorepublican theory of justice must not theorize away the existence of moral pluralism or circurnstances of justice. 66 Appeals to "community" and "virtue"

62. See generally TAYLOR, supra note 6, at 181-203. See also JOHN RAWLS, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY 349-71 (Barbara Hennan ed., 2000) (discussing Hegel's idea of the relationship between ethicallife and liberalism). 63. See TAYLOR. sup ra note 6, at 181-203. BUI see Ronald Dworkin, Liberal Community, 77 CAL. L. REv. 479 (1989). 64. Taylor does not beg the question but rather puts forth a conception of community that is based on his more communitarian or neorepublican idea of liberalism and relies upon a strong conception of civic vinue. See TAYLOR, supra note 6, at 181-203. 65. JOHN RAWLS, A THEORY OFJUSTICE 126-27 (1971). 66. For Rawls, "circurnstances of justice" include (I) Iimited benevolence or altruism on the part of real human beings, (2) moderately scarce material resources, and (3) disagreement about the good. /d.

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ring hollow when they deny the very existence of moral disagreement and political conflicts that typically arise from it in liberal democracies.

D. Neorepublican Skepticism Taylor's neorepublican critique of so-called procedural liberalism relies too much on the Hegelian claim that apparently abstract, universal principles divorced from the good cannot be the basis of political morality. Although this skeptical worry about the "pure" part of pure practical reason is hardly new, it still strikes a chord because no political theory can afford to make implausible assumptions about the sorts of reasons and sentiments that can motivate real people to act appropriately in their role as citizens. This skepticism about the capacity of the right to replace the good as the basis of social unity is prernised on the belief that liberal principles derived from the right cannot engage the will of ordinary human beings. In turn, this belief rests on two claims: (I) that the moral vocabulary of the right does not capture real people's moral selfunderstandings and that (2) comrnitment to the right is rarely exhibited in real moral behavior and, therefore, lacks an empirical foundation . While people may profess a commitment to fairness, tolerance, or other universal principles, what they really care about is their personal relationships. Real people are loyal to those whom they know and trust because they fee! emotionally elose 10 them. When asked for a reason far helping someone, they are likely 10 answer that this person is "my" friend, "my" boss, "my" elassmate, or "my" neighbor. The abstract liberal principles that emerge from the right cannot capture the importance of the partial reasons that real people usually act from. Liberal principles are the motivational equivalents of scarce human motives such as altruism and love because in cases of conflici they will always be trumped by more personal commitments. As a result, neorepubIicans are deeply pessirnistic about the prospects of survival for liberal societies that overlook the personal ties that motivate moral behavior on the part of real human beings. For these reasons, they believe, thin liberal principles are bound to be motivationally deficient. Only the concrete, particular values that emerge from a widely accepted understanding of the good can supply the content necessary to compel real people to act morally in politicallife. Because good citizenship tums 'on effective moral motivation, citizens in liberal societies will never exhibit the kind of civic virtues that are found in more morally homogeneous communitarian societies. At best, a liberal society is held together by fragile civic commitments that are based on narrow self-interest or on vague moral abstractions. This claim about poor citizenship in liberal societies depends upon a belief that citizenship cannot be thought of as apart-time commitment that only applies when one enters public life. Most people will not take their civic responsibilities seriously because they will not see anything wrong with not actively participating in public life or not making sacrifices for the common good. Or, more simply, they wiII not care enough to do so. They will

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not view their community as their community but rather will view it, in Taylor' s terms, as a convergent good that need not be enjoyed together. Human beings are not the sorts of creatures who can do without thick civic bonds that emerge from a common definition of the good based on patriotism. Because real people are only moved to act based on this kind of identification, the range of moral motives cannot be expanded in the way in wruch procedural liberals hope it can be. Liberals fail to recognize the need for principles that are more in tune with the ways in which real people characterize their moral experiences. Instead, they are preoccupied with positing universal principles that should be aspired to without critically assessing their assumption that human moral psychology is sufficiently malleable to make their ideals of civic behavior realistic possibilities. Their fascination with what can be blinds them to the fact that real people need to share deep beliefs about collective ends to a1low them to have a sense of community. Liberals rnistakenly believe that ordinary people need to share very little of substance before they can identify with their fellow citizens, and they fail to see that moral pluralism is likely to underrnine the only possible common bond that a human society could have. A perfectly neorepublican society would have to be more or less morally homogeneous because its citizens would openly acknowledge the need to share something less superficial than a mere comrnitment to fairness, tolerance, the rule of law, or individual rightS. 67 In addition, the public-private distinction, which has been so central to liberal thought over time, would have to be much less sharply pronounced. In this way, neorepublicans hope to show that real people's moral convictions cannot differ markedly without tuming their society into a mere association of self-interested individuals or self-interested groups. Altematively, a common conception of the good based on civic virtue acknowledges the deep psychological need for the members of a human community to share an identity based on seeing their republic as a common enterprise.

E.

Rebuttal

In human history, there has been no shortage of those who have appealed to the distinctness of their cultures, religions, traditions, and nationalities for a number of different political purposes, many of which have tumed out to be morally unacceptable, if not evil. That should give us reason to pause. By contrast, it is hard to imagine a genocide or unjust war caused by appeals to human dignity. Another difficulty is that Taylor makes no effort to explain how a shared social understanding of the good of participatory self-rule is compatible with the equaJ right of each citizen to form, revise, and pursue her 67. Cf SUSAN MOLLER OKIN. JUSTICE. GENDER. AND THE FAMILY 42 (I989) (arguing that the implications of most communitarian arguments are reactionary and inegalitarian).

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own reasonable conception of the good. After all, it is not so dear how civic republicanism and liberalism can be brought together when many liberals ins ist that citizens should be left free not to participate in politics if they choose not to do so. It is far from obvious, furthermore, that liberal principles are motivationally inadequate simply due to their distance from the good. In fact, the opposite would seem to be true: under conditions of moral pluralism, moral reasons that are appropriate for political li fe must be removed, as far as possible, from the sectarian struggles that have divided citizens over time. Taylor relies too heavily on a sharp distinction between procedure and substance that has little basis in theory or in practice. He also fails to explain why moral consensus must occur at a deeper level and why political reasons must reflect a conviction about the human good to be motivationallyeffective. Sirnilarly, it is not dear why he doubts that citizens can internalize so-called abstract liberal values, making them their own, when such values, like civic republican values, have their roots in our particular political heritage. As we know, many people have died for such "abstract" ideals as freedom, democracy, and country. American history alone is replete with examples. The vast majority of Americans believe that the Constitution protects political dissent; the right to be free from racial, ethnic, gender, and religious discrirnination; the right to be protected from physical abuse by the police; and the right to have access to courtS. 68 It is not self-evident, then, why a historically grounded widespread comrnitment to the liberal values of our political heritage cannot provide the moral motives that politicalliberals such as Rawls are looking for despite their distance from the content of individual life plans. The essential neorepublican insight that moral and political principles must address a particular audience to motivate appropriate civic behavior is true. But for his critique of moral motivation in liberal societies to be decisive, Taylor would have to be able to show that a shared social understanding of the good is the only possible source of effective moral motivation. The relevant comparison is not between a liberal account of the sources of moral motivation in a pluralistic society and the neorepublican account of these sources in an ideal, morally homogeneous society. The relevant comparison must be made against the pluralistic society that we actually have. Neorepublican accounts such as Taylor's leave us to wonder how the diversity of religious, philosophical, and moral doctrines could be reduced, in the name of greater social unity, short of draconian measures. This asymmetry between liberal and neorepublican arrangements reveals a serious flaw in Taylor's thinking about the most appropriate moral basis for political life. While neorepublicans assurne that what is good for an individual 68.

CASS

R.

SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME

COURT x-xi (1999).

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is good for the community as a whole, the kind of vision that inspires an individual in her personal projects significantly differs from that of principles of right that regulate the political relations of a morally pluralistic community. The question of the nature of the good life is not the equivalent of asking what regulatory principles offer the best means of resolving political conflicts as fairly as possible. This line of response directly undercuts Taylor' s assumption that the sort of quasi-religious, moral orientation that is supposed to guide an individual's life choices can be easily translated into a political morality that could settIe moral disagreements in the public reaIm. The kinds of reasons that underlie personal choices about what ends to pursue differ in kind from the sons of reasons that can be used to justify the exercise of political power in the name of social justice or political legitimacy. At minimum, neorepublicans need to argue for the appropriateness of this parallel rather than assuming that the two classes of reasons are comparable. 11. THE TROUBLE WITH COMPREHENSlVE LIBERALISMS

A.

Liberalism and Personal Autonomy

As we might have expected, many liberals responded to the neorepublican critique by showing that liberalism has an adequate account of the kinds of goods---community, patriotism, civic friendship, solidarity-that their critics alleged were conspicuously absent among the traditional concerns of liberal thinkers.69 A liberal conception of the good based on autonomy or individuality, furthermore, is normatively superior to neorepublican alternatives. As Brian Barry remarked, Liberalisrn rests on avision of life: a Faustian vision. It ex alts selfexpression, self-rnastery .. . the active pursuit of knowledge and the ciash of ideas; the acceptance of personal responsibility for the decisions that shape one's life. For those who cannot take the freedorn it provides alcohol, tranquilizers, wrestling on the television, astrology, psychoanalysis, and so on, endlessly, but it cannot by its nature provide certain kinds of psychological security.70

69. Brian Barry, Joseph Raz, Amy Gutmann, and Will KymJicka best exemplify the kind of liberalism thai is explicitly perfectionisl. In spite of his ostensible multicultural sensibililY, Will Kymlicka PUlS forth two distinclly liberal preconditions for living a good Iife: (I) autonomy and (2) freedom 10 reflecl on and question one' s beliefs. Wn.L KYMUCKA, LIBERAL/SM, COMMUNITY, AND CULTURE 12- 13 (1989). He wriles Ihal "amongsl Ihe people who ace leading their lives from the inside are people who have been brainwashed into accepting certain ends as their own, and who are discourdged from rrying any other ways of life, through the systemalic control of socialization, of the press, and of artistic expression. And this is unacceptable 10 the liberal." Id.3118-19. 70. BRIAN BARRY, THE LIBERAL THEORY OF JUSllCE 127 (1973).

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On its face, showing that liberal principles are not empty would seem to take a lot of the sting out of neorepublican charges that liberal principles cannot engage the moral psychology of real human agents.71 This response would appear to allow liberals to take their own side in an argument while remaining as neutral as possible toward competing conceptions of the good life.72 After aIl, people who do not share deeper normative beliefs about the good are still left free to pursue nonliberal life plans within a liberal framework as long as these plans are the products of choice or critical reflection.73 Under a liberal scheme, people are given considerable latitude to determine what makes their lives meaningful even if they make these determinations in accordance with their religious beliefs or cultural traditions. It would seem, then, that the apparent incommensurability between the deeper normative commitments of liberalism to a particular vision of the good and nonliberal ways of life is less serious than it initially appeared to be. The people who pose the most serious threat to the stability of a liberal state can become good citizens provided that they can be persuaded that a liberal conception of human flourishing leaves sufficient room for their own moral, religious, or cultural selfunderstandings.74 Compared with civic republican alternatives, there is something to be said in defense of a more comprehensive Iiberalism and its capacity to accommodate a wider range of conceptions of the gOOd. 75 The problem with

71. By adopling Ihis stralegy, however, liberais have allowed the communitarians to narrow the discourse, focusing it on the nature of Ihe human good and on the Iype of moral vocabulary that mosl accuralely captures real people's moral self-understandings. This lurn of events played into the communilarians' hands by permitting them 10 avoid the qucstion of how they would approach the problem of developing suitable political principles for a morally pluralistic society. To date, the communilarians have been reticent about how they would use the power of Ihe state 10 creale a more morally hornogeneous society or to promole a more active, pani ci pa tory ideal of citizenship. 72. On the idea of liberal neutrality, see generally Will Kymlicka, Uberallndividualism and Uberal Neutraliry, 99 ETHICS 883 (1989). 73. The natural instinct to keep autonomy (or some conception of negative freedom) al the center of liberalism, but also to be tolerant of nonliberal ways of life drives Will Kymlicka's liberal theory of minority rights. KYMLICKA, supra note 10, at 6. 74. But see Will Kymlicka, TlVo Models 0/ Pluralism and Tolerance, in TOLERATION: AN EWSIVE VIRTUE, supra note 15, a181, 93. 75. Although from 1963101990, Ihe V.S. Supreme Coun gran ted a number ofexceptions to accommodale the practices of religious minorities, Ihose who hold unorthodox religious beliefs always stand on precarious ground. For example, in Sherbert v. Verner, 374 V.S. 398, 403 (1963), the Court ruled that any federal or stale 1aw that substanlially burdened religious practices, regardless of the state's intention or the scope of the law, would be presumptively unconslilutional. This presumplion could be overcome if the state could prove that: (I) Ihe govemmenl had a particular1y important interest and (2) that granting such an exception would substantially hinder the fulfillment of that inleres!. See id. In Employment Div. v. Smilh, 494 V.S . 872 (1990), however, the Court dramatically cut back Ihe "grant an exception when feasible"

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this kind of approach to the problem of moral pluralism, though, is that it still favors the kinds of lives that are autonomously chosen over ones that cannot be justified in terms of the overriding value of choice, introspection, and contemplation in human Iife. In other words, it still is too likely to be too sectarian to secure the moral support of all reasonable persons. 76 This may mean that the political effects of a public culture based on a liberal conception of the good would not be sufficiently neutral because those who have nonliberallife plans are only accorded civic respect insofar as their respective life plans do not conflict with the liberal commitment to autonomy, individuality, and self-expression. This solution seems to be dismissive of the way in which those who have nonliberal convictions understand the value of their own lives. The reasons that various members of religious minorities in the United States often put forth as an explanation for why they want to limit their children's exposure to secular values in public school, for exarnple, often have to do with the fact that they do not value autonomy, critical reflection, and individuality at all.?? Their values, of course, may be wrong, but that is largely beside the point. For the sake of political legitimacy under conditions of moral pluralism, liberals should not use the state to advance autonomy as a conception of the good. 78 The reason for preferring some sort of politicalliberalism as the basis approach by requiring not only a disparate impact on religious minorities but also a finding of intentional discrimination. Today, the Court's decision in the infamous peyote case has greatly reduced the Iikelihood that a litigant who challenges a federal or state law on free exercise grounds will prevail short of a showing of intentional discrimination. The rights of free speech, free exercise of religion, and free assembly, furthermore, have not always protected minority groups from the will of the majority. See, e.g., Reynolds v. Uni ted States, 98 U.S. 145, 165-66 (1878) (upholding the constitutionality of a federal law that prohibited polygamy in federal temtories); Braunfeld v. Brown, 366 U.S. 599, 60~6 (1961) (upholding the application of a state Sunday c10sing law to orthodox Jewish merchants); Bob Iones Univ. v. United States, 461 U.S. 574, 603-{)4 (1983) (upholding the IRS 's denial of tax·exempt status to the university because of its whites·only admission policy); Lyng v. Northwest Indian Cemetery Protective Ass'n., 485 U.S. 439, 453 (1988) (holding that the federal govemment could construct a road through federal land even though the construction would destroy certain Native Americans' traditional rituals). Granting exemptions in cases of religion, moreover, may run afoul of the Establishment Clause. A c1assic example of this problem is whcn the state decides to grant a tax exemption to a religious organization to further the free excrcisc rights of its members, this direct subsidy to religion may be seen as violating the constitutionally required separation of church and state. 76. This Artic1e leaves open the empirical questions of the degree to which Christian Fundamentalists, given their sincere religious convictions, are potentially reasonable. Even among such persons, we should expect to find a range of different personalities and corresponding civic anitudes. Bur see generally BRIJCE B. LAWRENCE, DEFENDERS OF GOD: THE FUNDAMENTALIST REVOLT AGAINSTTIfE MODERN AGE (1989). 77. See, e.g., Mozert v. Hawk:ins County Bd. ofEduc., 827 F.2d 1058 (6th Cir. 1987). 78. Perfectionist liberals come in many shapes and forms. For example, William Galston argues for the value of a "full theory of the good latent in liberal practice." William Galston,

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of political morality is not only that comprehensive liberalisms, which rely upon controversial liberal conceptions of the good, are more likely to precipitate political conflict among reasonable citizens. Respect for reasonable moral pluralism also requires a political morality that does not employ a strong conception of autonomy so that all reasonable citizens can endorse the same political morality for minimally moral reasons. 79 For public reason to regulate public deliberation and voting decisions on fundamental political questions, the vast majority of citizens must be motivated to apply its nonns without having to sacrifice their deeper moral or religious convictions. This may mean that liberals may have to tolerate ways of life that they find to be deeply misguided. Today, religious, moral, and cultural differences about how human beings ought to live extend far beyond the relatively narrow sectarian differences that existed in Locke's or even in Mill's time. Aversion of liberalism that takes the breadth and depth of this kind of moral pluralism seriously is the most promising candidate as a theory of political morality because it has the best chance of being accepted by a diverse audience for the right reasons and thus 1egitimating collective decisions. The allegiance of those who have reasonable but non liberal conceptions of the good cannot be taken for granted. 80 We ought to assume that a fair number of citizens in liberal societies may not readily accept the role that public reason is supposed to play in political life unless they have good reasons to believe that its norms will not unduly compromise their ways of life. After all , it is highly unlikely that even politicalliberalism would have non-neutral effects. 81 As William Galston notes, Ha liberal society cannot be equally hospitable to all conceptions of the good .... ,,82 As such, we should not be overly optimistic about the ease of justifying norms of public reason, which appear to be closely linked to liberal ideas of human flourishing, to those who adhere to nonliberal doctrines. On the other hand, we should not assume that different beliefs about the good will make it impossible for citizens to be motivated to honor public Dejending Liberalism, 76 AM. POL. SCI. REv. 621.627 (1982). Stephen Macedo beJieves that "[Iliberal justice and righls . .. partly determine the ends, goals, and visions of Ihe good Iife thaI liberal citizens pursue." STEPHEN MACEDO, LIBERAL VIRTUES: CITilENSIßP, VIRTUE, AND COMMUNITY IN LIBERALCONSTITUTIONALISM 5 (1990). 79. Cf GERALD DWORKlN, THE THEORY AND PRACfICE OF AUTONOMY 9 (1988) (arguing thaI aUlonomy need not be an all-or-nothing affair). 80. As Sluart Hampshire writes: It is not only possible but, on present evidence, probable thaI most conceptions of the good, and mOSI ways of life, which are typical of comrnercial. liberal, industrialized societies will orten seem allogether hateful to substantial minorities within these societies, and even more hateful to most of the populations within traditional societies elsewhere. STUART HAMPSHIRE, JUSTICE IS CONFLICT 24-25 (2000). 81. See, e.g., Macedo, supra note 24, at 483. 82. Williarn A. Galston. Pluralism and Social Unh)', 99 ETHICS 711. 718 (1989).

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reason as the fairest means of making collective decisions that would bind everyone. Those who are skeprkal move too quickly from the brote fact of disagreement about the good life in liberal societies to the conc1usion that it will be equally difficult, if not impossible, to find common principles of regulatory political morality.83 This inference is not warranted because we have not yet carefully surveyed the range of arguments that rnight be employed to justify such a morality to those who are not already liberal. Nor does political liberalism necessarily exc1ude religious people from the public sphere.84 Such liberalism is the right solution to this problem of political legitimacy under conditions of moral pluralism because it avoids the two errors that liberals are most inc1ined to commit: to base their political morality on a controversial, overly sectarian liberal conception of the good that only appeals to citizens who are already converted, or to tolerate too much moral difference in a rnisguided effort to be compIetely neutral toward competing conceptions of the good life. 85 Any plausible theory of politicallegitimacy must navigate between these two extremes to encourage the vast majority of citizens to support liberal institutions for the right reasons. 86 B.

The Advantages 0/ Political Liberalism

Strangely, despite the obvious appeal of a theory of legitimacy that aims at securing as wide a consensus as possible on the basis of rninimally moral reasons, many liberal thinkers have not been eager to embrace political liberalism in any shape or form. 87 Part of the explanation for their reluctance originaleS in the legitimate worry that the normative content of liberal theories of justice will be severely comprornised if these theories have to be tailored to the moral beliefs of nearly everyone. Political liberalism, they fear, would tolerate too much injustice. 88 Others are convinced that the alleged difference between comprehensive and political liberalism is a distinction without a difference. As Stephen Macedo observes, "[i]t is tempting to say that the only 83. See, e.g., JEREMY WALDRON, LAW AND DIs AGREEMENT 159-61 (1999); Jeremy Waldron, Deliberation, Disagreement, anti Voting, in DELffiERATlVE DEMOCRACY AND HUMAN RIGHTS 210 (Harold Hongju Koh & Ronald C. Slye eds., 1999). 84. But see generally STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: How AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION (1993). 85. Without argument, this Article assumes that (I) there is no sueh thing as "perfeet" fairness or "perfeei" neutrality, (2) some balanees are fairer than others are and therefore, would be approved of by most reasonable people, (3) the effects of important politieal decisions are bound to be non-neutral and impose disparate burdens on some people and groups, and (4) that romanticizing diversity is not only too easy, theoretically, but also that it can be politically irresponsible in the sense that it can lead to undemocratic and unjust outeomes. 86. See Macedo, supra note 24, at 476. 87. See, e.g., Brian Barry, lohn Rawls and the Searchfor Stabiliry. 105 ETHICS 874 (1995) . 88. See, e.g., Joshua Cohen, Moral Pluralism and Political Consensus, in THE IDEA OF DEMOCRACY 270 (David Copp et al. eds., 1993).

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real difference between political and comprehensive liberalisms is that proponents of the latter are simply more candid in admitting that liberal institutions foster an ideal of life as a whole and that 'civiI' toleration inevitably promotes 'religious' toleration."S9 At the same time, if liberals refuse to broaden the basis of support for their political morality, they remain vulnerable to the charge that their reasons are too sectarian to win the assent of all reasonable persons. 90 This is not only a concern about securing actual consent. In addition, it is far from obvious that reasonable, informed citizens ought to endorse political arrangements that would unfairly threalen their nonliberal ways of life. One of the main purposes of a theory of political liberalism is to show how people, who disagree about their highest ideals of human flourishing, still rnight be able to agree on the same answers to fundamental political questions for similar reasons, thereby legitimating what otherwise would be unjustified coercion. As contrasted with his original theory of justice, Rawls's political conception of juslice reflects a sustained effort to reach those who are reasonable but who have nonliberallife plans. What moved Rawls to write the essays that followed A Theory of lustice was his realization that many of these citizens might be reasonable in the sense that they would be willing to offer their fellow citizens fair terms of social cooperalion. In this respect, his initial account of political legitimacy was defective insofar as reasonable citizens who adhere 10 nonliberal comprehensive doctrines could not support the same principles of juslice for the right reasons. It would be natural, then, to expect commentators to address his new characterizalion of the most appropriate sources of moral motivation in Political Liberalism and its connection to his concern with stability.91 For the most part, though, this has not happened despite the fact that Rawls explicitly links stability to "sufficient motivation of the appropriate kind.,,92 This oversight is even more surprising in light of Rawls's well-known dissatisfaction with his original account of the stability of his well-ordered 89. Macedo, supra note 24, at 476. See also Harry Brighouse, Is There Any Such Thing as Political Liberalism?, 75 PAC. PHIL. Q. 318 (1994). 90. In other words, under condilions of moral pluralism, 10 legilimate regulalory plinciples

of juslice. and Ihe particular decisions thai fall under them, liberals muSI put aside their sincere convictions aboul truth and human perfection. The point is nOI 10 renounce what they bclieve 10 be troe, but 10 recognize the vinual impossibility of publicly justifying any single account of the whole troth bccause of the inherent limits of reason. On tbc idea of "reasonable" pluralism, see Coben, supra note 88. 91. Samuel Freeman nOles Ihat "very Iittle of significance bas been wlitten on Rawls's argument for slability in Pan III of A Theory 0/ lustiee, and virtually nothing has been wrillen on the central feature of that argument on 'the congruence of the light and the good.'" Samuel Freeman, Political Liberalism and the Possibility 0/ a Just Democratic Constitution, 69 CHI.· KENTL. REV. 619, 623 (1994). 92. RAWLS, POLlTICALLlBERALlSM, supra note 15, at 142-43.

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society in the third part of A Theory 0/ Justice. 93 One of the central aims of "Political Liberalism is to restate the idea of justice as fairness without reliance on a controversial comprehensive doctrine" as the exclusive source of the moral reasons that underwrite the practice of good citizenship.94 lnitially, Rawls had thought that citizens could support justice as fairness for deeper liberal reasons, narrowing the motivational distance between a citizen's conception of the good and her support for the two principles of justice.95 Reasons for being just could be incorporated into each citizen's conception of the good, Rawls thought, to generate the moral motivation in political Iife that would stabilize his well-ordered society.96 At the end of A Theory 0/ Justice, he argued that a Kantian interpretation of justice as fairness could serve as the means of motivating citizens to support the two principles. A conunitment to them would be based on a Kantian conception of the good life in which a person expresses her true nature as a free and equal being by exercising the capacity for justice.97 Justice was slated to serve as the final shared end of his well-ordered societyand the collective activity of justice was to be the "preeminent form of human tlourishing.,,98 Rawls expected "congruence" between each citizen's life plan and her respective sense of justice?9 The basic thought behind congruence is that it is rational to be reasonable for its own sake because justice is an intrinsic good. lOO A sense of justice must be sufficiently strong to override temptations to free ride and the

93. Richard Arneson identifies three principal changes in Rawls's writings after the publication of A Theory 0/ lustiGe: "the Kantian conception of persons" (explaining !hat the parties in the original position are now identified as giving priority to their Kantian interest in the development and exercise of their moral powers of rational autonomy and fair dealing), "hedged belS on universalism" (explaining that the validity of Rawlsian principles is presented as relative to modern democratic societies), and "pluralism and the overlapping consensus imperative" (articulating shared moral convictions about what constitutes the fair treatment of citizens, providing a morally acceptable basis for political life despite conditions of moral pluralism). Richard J. Arneson, lnrroduction, 99 ETHlCS 695, 696--97 (1989). 94. Lawrence B. Sol um. Situating Political Liberalism. 69 CHI.-KENT L. REv. 549, 555 (1994). 95. By "comprehensive," Rawls means systematic views, either secular or retigious, which include "conceptions of what is of value in human life, as weil as ideals of personal virtue and character, that are to inform much of our nonpolitical conduct. . .. A doctrine is fully comprehensive when it covers alt recognized values and virtues within one rather precisety articulated scheme of thought ...." RAWLS, POLll1CAL LIBERALlSM, supra note 15, at 175. 96. ld. at 142-43. 97. RAWLS, supra note 65, at 572. 98. ld. at 526, 529. 99. ld. at 567. For a more detailed account of the congruence problem, see Samuel Freeman, Congrnence and the Good 0/ lustice, in THE CAMBRlDGE COMPANION TO RAWLS 277 (Samuel Freeman ed. , 2(03). 100. Freeman, supra note 51, al 346.

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desire to act justly must not conflict with pennissible life plans. IOI Without congruence, real people would not be motivated to take up the impartial standpoint of justice and act appropriately toward their fellow citizens. These remarks indicate that Rawls must have seen a Kantian interpretation of moral motivation as a precondition of the stability of his well-ordered society. At the outset of Political Liberalism, however, we learn that a conception of justice must be compatible with the fact of reasonable moral pluralism to be stable over time. I02 Rawls now makes it dear that he had underestimated the extent to which any comprehensive doctrine or conception of the good could serve as the primary source of moral motives in amorally diverse society. The most sensible interpretation of his shift to a political conception of justice is that he feared that citizens with different conceptions of the good would not be moved to support the two principles of justice for sufficiently moral reasons. His concern with the stability of his well-ordered society reflects his worry that real people who do not share the same conception of the good life would not be willing to endorse the same principles of justice, rendering them less motivationally adequate than he had previously supposed.10 3 His new account of how real citizens could share a political conception of justice that they are sufflciently motivated to honor requires a more historical account of liberal democratic citizenship.l04 His attempt to ground thisconception in something less controversial reflects his desire to convince citizens to be willing to let the balance of public reasons override their deeper religious or secular beliefs in cases of conflict. The viability of his political conception of justice now depends upon his devising political arrangements that foster widespread allegiance to the two principles of justice without relying upon moral motives that derive from a shared conception of the good. 105

101. RAWLS, supra note 65, at 497,569. 102. RAWLS, POLlTICAL LlBERALISM, supra note 15, at xviii-xix. 103. The new Rawls does not reject the very concept of autonomy. Rather, bis political liberalism restriets its scope to the political realrn-i.e., when a person thinles of himself or herself as a citizen-and thus, renders it less controversial than it othcrwise would be. That way, a liberal society would not impermissibly force nonliberal communities to bring IIp "rational choosers" in the name of the value of personal autonomy. At the same time, political autonomy acknowledges the basic right of each person to form, revise, and pursue his or her conception of the good even when that conception is nonliberal. See Will Kymlicka, Two Models 0/ Pluralism and Tolerance, in TOLERATION: AN ELUSIVE VIRTUE, supra note 15, at 81, 90. 104. For an argument that Rawls's new conception of justice is not political because it oscillates between its metaphysical and political interpretations, see Patrick Neal, lustiGe as Fairness: Political or Metaphysicaf1, 18 POL. THEORY 24 (1990). 105. Of course, citizens may endorse Rawls's principles of justice from their respcctive reasonable comprehensi ve doctrines. However, the author does not think that Rawls is worried about people who are already fully reasonable. Rather, the idea is that this kind of justification targets those who have sornewhat reasonable yet nonliberal beliefs about the good Iife-i.e., those whose moral motivation to support his well-ordered society is not guaranteed.

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Rawls's divorcing his account of moral motivation as far as possible from any underlying comprehensive doctrine is driven by the difficulty of trying to e10se the motivational distance between the two moral powers Ca capacity to form, revise, and pursue a conception of the good and a capacity for a sense of justice) with any kind of appeal to deeper comprehensive religious or moral doctrines. As he came to realize, many citizens would not see the collective activity of justice as the highest form of human flourishing. Because moral motives cannot be based directly on comprehensive beliefs in a morally pluralistic society, the effective desire to act justly must be removed, as far as possible, from all conceptions of the good. Part of his solution to this problem of moral motivation on the part of reasonable citizens under conditions of moral pluralism in Political Liberalism is still recognizably Kantian: A sense of justice is not in itself a recommended way of life but instead is a moral commitment that constrains the choice of individual ends in the first place. Rawlsian liberalism is a theory of justice and politicallegitimacy. It is not meant to articulate the nature of a good life or to be extended beyond the basic social, political, and economic institutions. I06 Unlike Kant, Rawls does not assert that universally binding moral principles must be grounded in pure practical reason independent of all contingent features of human nature. In Rawls's political scheme, nothing is implied about what makes an act morally praiseworthy. As Kant might have said, this would confuse the doctrine of right with the doctrine of virtue. Within the constraints of the right, citizens are free to pursue the ends that they see as worthwhile for their own reasons. A sense of justice and its accompanying moral motivation, then, must be viewed without perfectionist biases.107 While a citizen who chooses to be a just person accepts the above constraints, that person need not base her life plan on the good of justice. As it turns out in Political Liberalism, Rawls no longer thinks that the fit between the two moral powers has to be as tight as before. The Kantian interpretation of moral motivation presented at the end of A Theory of lustice, which lays out the deeper moral reasons for the good of justice, is no longer appropriate because the source of moral motivation in political life cannot depend so heavily upon any controversial comprehensive doctrine. It is a very unsatisfactory response to the existence of moral pluralism to deny its existence, dismiss its relevance, or fai! to appreciate how people who hold nonliberal beliefs understand themselves. 108 Any serious attempt to 106. RAWLS, POUllCAL LIBERALISM, supra nOle 15, at 257-88. 107. This does not mean that consequences do not matter or that a11 considerations of value must be subordinated to principles of right. See Barbara Herman, Leaving Deontology Behind, in THE PRACllCE OF MORAL JUDGMENT 208, 210 (I 993). 108. The existence of moral pluralism aboUl the good should not be confused with the question of whether all of those views are equally valid or rationally defensible. From tbe point of view of moral motivation, the potential political problem is that real people are emotionally

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justify liberal political morality to those who are not already converted must acknowledge the legitimate concem that a political morality that relies upon a distinctly liberal conception of the good may be unacceptable from a variety of potentially reasonable, yet nonliberal, moral or religious perspectives. As Rawls came 10 realize, comprehensive liberal ideals are controversial and make it virtually impossible to establish legitimate grounds of coercion in a morally pluralistic society. A liberal society should not predicate political authority, then, on the alleged superiority of a life based on Lockean freedom, Kantian autonomy, or Millian individuality. To accept ·the burdens of judgment is to acknowledge the inherent limits of human reason and to recognize that other citizens adhere to beliefs that differ from our own yet· still may be reasonable for political purposes. I09

III. CIVIC EOUCATION UNDER CONOITIONS OF MORAL PWRALlSM A.

Civic Education and Public Reason

Just as no conception of political morality will please everyone, no conception of eivic education will please everyone. Nevertheless, this Article claims that a conception of citizenship premised on Rawlsian public reason is more likely than those of comprehensive liberalisms to be acceptable to the vast majority of reasonable persons. Any conception of civic education, which would be appropriate for a morally pluralistic society such as our own, would have to strike a more appropriate balance between tolerance for different ways of life and cultivation of the skills and virtues that make good citizenship possible in a liberal democracy. To agree that the practice of liberal democratic citizenship necessitates a distinct conception of civic competence leaves a lot of space for deliberation about the most appropriate means and the precise ends of liberal democratic civic education. That does not mean that liberals should eschew teaching children the value of rationally assessing evidence on the grounds that all methods of acquiring truth are equally reliable. After all, even highly religious people want their choices to cohere with their preferences. Invariably, as a byproduct of their civic education, children would leam that rational evaluation is more reliable than irrational alternatives for realizing their conceptions of the good. The principal problem is that liberals find themselves in an awkward, if not untenable, position. On the one hand, they must respect or at least tolerate the different types of reasonable conceptions of the good that exist in their society. That conclusion seems to follow from liberal neutrality. On the other hand, they are also committed to promoting an ideal of citizenship that enables wedded 10 their respective ways of life and will conlinue 10 hold their views even when Ihey canno! withstand rigoraus crilique. 109. RAWLS, PoUllCAL L1BERAuSM , supra nOle 15, at 54-58.

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people to respect the freedom and equality of their fellow citizens. As a result, even among liberals themselves, the content of civic education is bound to be somewhat controversial. 110 Unless one is convinced by Lockean arguments that the personal freedom of parents entails an absolute parental right to pass on their way of life to their children, llI the state must exercise some kind of educational authority over children in the interest of their future citizenship. A society that seeks to create reasonable citizens cannot sirnply defer uncritically to the wishes of parents. It would seem to be obvious that, to function weil, democracies must rely on the moral character of their citizens. The right habits, attitudes, and principles-at least those that encourage toleration of dissent, respect for different ways of life, and critical thinking about authority-are easier to instill in children than in adults. For the sake of civic education, governrnents are more justified in treating children paternalistically in the sense of restricting their freedom before their deliberative capacities have fully matured. Somewhat paradoxically, in some instances, children ought to be treated paternalistically to enable their rational capacities to develop.ll2 Although many institutions are educative, public schools must playa central role in the inculcation of reasonableness in children.JJ3 Both Amy Gutmann and Stephen Macedo argue that civic education refers to the teaching of a specific curriculum that prornotes liberal virtues. 114 The purpose of civic education is to foster the skills and virtues that enable future citizens to propose fair terms of cooperation with others, to settle differences in mutually acceptable ways, to participate in collective decision making, and to abide by agreed terms of social cooperation provided that others reciprocate. 1.

Teaching Children to be Reasonable

The above sort of civic education, like any other conception, is bound to be value-laden. 115 As such, one cannot simply object to an educational proposal on the grounds that it teaches values as if any conception of civic education could be completely morally neutral. Rather, one must put forth a substantive independent argument that makes the case for promoting some values at the expense of others. Reasonableness is a complex psychological disposition that involves both intellectual and moral virtues that can be acquired over time. 110. Harry Brighouse. Civic Educarion and Liberal Legirimacy, 108 ETHICS 719. 719 (1998). 111. See, e.g. , MILTON FRlEDMAN, CAPITALlSM AND FREEDOM 85-107 (1962). 112. See Barbara Hennan, Making Room for Character, in ARISTOTLE, KANT, AND THE STOlCS: RETHINKING HAPPINESS AND DuTY 36 (Stephen Engstrom & Jennifer Whiting eds., 1996). 113. The evidence is mixed on whether public schools today are effective in teaching autonomy. See GUTMANN, supra note 16, at 62. 114. See, e.g. , Gutmann, supra note 14; Macedo, supra note 24. 115. ALLAN BLOOM, THE CLOSING OF THE AMERICAN MIND 26 (1987).

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For Rawls, to be reasonable is to be conunitted to the criterion of reciprocity in collective decision making in the sense that the reasons offered in suppon of a particular political proposal are as fair as possible and likely to be acceptable to all reasonable people. Under conditions of moral pluralism, one of the purposes of appealing to public reasons, as opposed to other sources of morality, is that such reasons are more likely to legitimate controversial decisions and thus, to encourage compliance. 116 After all, political Iiberalism is resigned to accepting the inevitability of reasonable dis agreement about the good in free societies. 1I7 Similarly, it is also resigned to accepting the existence of hard cases that divide the political community.IIS The task of rational justification is considerably more complicated than it would be in a more morally homogeneous society because what counts as a good argument, or even what counts as a good reason, may be reasonably contested. 119 In the most controversial cases, no interpretation of public reason is Iikely to fit the facts perfectly.120 Even under the best of epistemic conditions, then, some of the most important decisions of public morality may be open to dispute because they have not been settled to the satisfaction of every reasonable member of the political community.121 This may mean that we may have to settle for "good enough" politicallegitimacy .122 The comprehensive doctrine that one adheres to, of course, may entail a partial or full resolution of a fundamental political question. For example, a hedonistic utilitarian may favor a right to privacy on the grounds that the balance of pain and pleasure suppons such a right in most cases. Or a Catholic 116. "Conditions of reasonable moral pluralism" refers 10 intractable disagreemem over the nalure of the good Iife for human beings. As lohn Rawls PUlS it, "A modem democratic society is characterized not simply by a pluralism of comprehensive religious, philosophical, and moral doclrines bUI by a pluralism of incompatible yet reasonable comprehensi ve doctrines." RAWLS, POLITICAL LIBERALISM, supra nOle 15, at xvi. For an excellent overview of arguments conceming moral reasons to obey the law, see KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY 47-203 (1987). 117. SeeLarmore,supra nole 17, 3161 , 63, 74,79. 118. Cf MARY MIDGLEY, WICKEDNESS: A PHILOSOPHICAL EsSAY 45 (1984) (noting thaI each new approach of evil brings new difficulties and problems). 119. Cf RONALD DWORKlN, TAKING RIGHTS SERIOUSLY, at xiv (1977) (recognizing thaI claims of right cannot a1ways be demonstrated 10 be true or false). 120. Cf. Ken Kress, The Interprelive Turn, 97 ETHICS 834, 845 (1987) (discussing Dworkin's views on the requirement of the fit); RONALD DWORKlN, A MATTER OF PRINCIPLE 143 (1985) (noting thaI one justification is better Ihan another if il is superior as a matter of political or moral theory). 121. Cf CHARLES R. BEITl, POLITICAL EQUALITY: AN ESSAY IN DEMOCRA TIC THEORY 7-8 (1989) ("There is no unequivocal conception of power-and so, no unambiguous principle of equal power-thaI can plausibly be laken as a basis for resolving dispute in all of Ihese areas."). 122. The author borrows this lerm from Seyla Benhabib, The Democratic Movement and the Problem 0/ Difference, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL S, 9 (Seyla Benhabib ed., 1996).

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might support such a right for theistic or metaphysical reasons. To be reasonable is to accept that some other reasons are at least reasonable enough, politically speaking, even if they may not be the best reasons according to one's own conception of the good. The point is that the reasonable citizen refrains from judging others' conceptions of the good on the merits provided that these conceptions are reasonable for the limited purpose of making poLitical legitimacy under conditions of moral pluralism possible. The reasonable citizen may have to defer to the reasonable views of others that she would reject far her own moral or religious reasons if she were not acting as a citizen who has a special duty to provide them with reasons that they could accept. As such, mutual tolerance on the basis of an acknowledgement of reasonable disagreement can serve as a moral motive for all reasonable citizens, even when most of them disagree about the highest matters of moral importance. Moreover, this motive can be strengthened over time through its exercise. 123 At the same time, this dual identity may be difficult for some citizens. As one critic has observed, such acceptance of moral and religious difference is incompatible with the current teachings of the Roman Catholic Church. 124 In addition, certain kinds of fundamentalism, due to their dogmatism and literal reading of Scripture, are at odds with any requirement that counsels believers to eschew the whole truth in political argumentation. In fact, more generally, highly religious people are likely to fear that their faith and that of their children is likely to be corrupted by the forces of a secular culture. But those Limiting cases do not mean that such a demand for reasonableness in poJitical life could not be met by a wide variety of people who have been able to reconcile their faith with democratic ideals. 125 Highly religious people may favor a more conspicuous role for religion in public life but that does not necessarily mean that they would prefer some sort of theocracy. Future citizens must learn to think critically about their own deeper convictions, to appreciate the wide range of reasonable disagreement that characterizes their society, and to understand the difference between what is reasonable-i.e., what can be publicly justified to a morally diverse audience-and what may be right or true. A shared recognition of the inherent limits of the capacity of human reason to evaluate different reasonable conceptions of the good on their merits makes it possible for such citizens to observe the criterion of reciprocity that lies at the center of public reason.

123. 124. 125. divorce.

See Callan, supra note 14. at 28. LeifWenar. Palitieal Uberalism: An Internal Critique. 106 ETHICS 32. 44-45 (1995). For instance, many Arnerican Catholics do not accept official church teachings on abonion. and birth control.

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Reasonableness

As Samuel Freeman puts it, "Reasonableness involves a readiness to politically address others of different persuasions in terms of public reasons.,,126 As such, reasonableness is the primary civic virtue of citizens who are committed to public reason. Rawls speCifies five attributes of reasonable persons: 1. They (a) have the two moral powers (the capacities for a sense of justice and for a rationaIly defensible conception of the good); (b) possess the

intellectuaI powers of judgment, thought, and inference; (c) have a determinate conception of the good based on some comprehensive view(s); and (d) can be normal, fully cooperating members of a wellordered society.127 2. They are willing to propose and abide by fair principles of social cooperation provided that others will do likewise. 128

3. They recognize the burdens of judgment. 129 4. They have "a reasonable moral psychology.,,130 5. They recognize the "five essential elements of a conception of objectivity.,,131 These five features define a "reasonable" person. The reasonable citizen must regard her fellow citizens as agents who have their own Iife plans and respect their right to make their own decisions about their own Iives according to their own best judgmems. To act reasonably in politicaI life is to regulate one' s conduct on the basis of the moral importance of these life plans from the standpoint of the person that adheres to them. Leif Wenar argues that even though most religions reject the burdens of judgment, "rejecting the burdens of judgment need not be incompatible with supporting liberal toleration.,,1 32 He claims that many adherents of comprehensive doctrines, who do not accept the burdens of judgment as an explanation for the existence of reasonable moral pluraIism, nonetheless enthusiasticaIly support liberty of thought and freedom of conscience. 133 He then concludes that acceptance of the burdens of judgment is unnecessary and 126. Samuel Freeman, Deliberalive Democracy: A Sympalhelic Comment, 29 PHIL. & PUB. AFF. 371, 401 (2000). 127. RAWLS, POLlTICAL LIBERALlSM, supra note 15, at 15-35, 81.

128. ld. at 48-54, 81. 129. ld. at 54-58, SI. 130. ld.al 81-86. 131. ld. at 110-12. 132. Wenar, supra note 124, at 46. 133. ld. at 42.

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counterproductive insofar as reJigious people who have alternative (religious) grounds for toleration cannot be reasonable under Rawls's overly restrictive definition of the term. l34 Obviously, if citizens could be reasonable without meeting all of the above conditions, then Rawlsian citizenship would be easier to realize in practice. The point is that Rawls is not trying to reach citizens who are already fully reasonable or those who are unreasonable and unwilling to change their views. There is no reason to preach to the converted or to make extraordinary efforts to reach the unreachable. His concern is about the allegiance of those who are on the border of being unreasonable given their nonliberal bebefs about the good. Because of their numbers, their allegiance is vital if the well-ordered society is going to be stable for the right reasons. Doctrinally, Wenar may be right. Catholics and other religious believers should not be asked to sacrifice the fundamental tenets of their faith to be good CltJzens. On the other hand, it is not surprising that people who have reasonable comprehensive doctrines turn out to be reasonable irrespective of their particular religious convictions. This mind-set is more a matter of having a reasonable moral psychology than of adhering to a reasonable comprehensive doctrine. Indeed, that people have a reasonable disposition may predispose them toward embracing a reasonable conception of the good, that is, a conception that respects the freedom and equality of others. Fortunately, the vast majority of citizens do not have comprehensive doctrines that are entireIy coherent. Those who are not fanatics are likely to have a large number of different moral commitments that cannot be reduced to a single comprehensive doctrine. In addition, they are likely to have a basic impulse to treat others fairly provided that they are treated fairly in return. Nor are their interpretations of their respective comprehensive doctrines always likely to converge, especially in hard cases. In hard cases, the application of a legal rule is bound to turn, to some degree, on the interpretation of the principles and policies that are not explicitly contained in the rule itseIf.135 As an example, constitutional interpretation often requires the judge to bridge the gap between highly abstract constitutionallanguage and the actual particulars of the case.l36

134. ld. a143 . 135. See generally RONALD DWORKIN, fREEDOM 'S LAW: THE MORAL REAoING OF THE AMERICAN CONSTITUTION 2-30 (1996); Benjamin Gregg, Using Rules in an lndetenninate World: Overcoming the Limitations oj Jurisprudence, 27 POL. THEORY 357, 358 (1999). Ahard case is a case where Ihe application of the relevant principle(s) leads to Iwo equally plausible answers. A very hard case is a case "in which the legal principles thaI would otherwise prove dispositive are IhoughllO be eiIher inconsislent or unjusl." David A. Reidy, Book Review, 112 ETHICS 180, 180 (2001). Also, a hard case raises highly controversiallegal issues thaI divide reasonable people with legal training. David O. Brink, Legal Theory, Legal Interpretalion, and Judicial Review, 17 PHIL. & PUB. AFF. lOS, 105-nd Andrew Valls for their contributions to this projeet.

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[Cjircumslatlces challge, and objeaives that seel11 unreacllable today may become practical tomorrow.' Buc raee is all issue { believe Illis lIa1ion carmoll!!ford 10 ;gl/ore riglll 1101// INTI\ODUCTION In the past two years, four related events have sharpened debates on race in the o.S.: (1) President Obama's election, (2) his nomination of Sonia Sotomayor co the Supreme Court, (3) that Court's ruling in Rieci v. DeSujallo;' and (4) the arrest of Obama's friend, Harvard professor Henry Gates.' Some have hailed Obama's election as the end of racial identity politics in the United States,' yet the fallout from Sotomayor's nomination," the Rieci decision,' and Gates's I . David Lyons, Corrcetivc jl/slice, Eq//al Opporlll"ily, a"d dIe Lcgacy of Slavcry allit jill/ Cro"', 84 B.U. L. REv. 1375, 1403-04 (2004). 2. President Barack Obama. A More Perfect Union, Address at the Constitucion Center in Philadelphia, PA, i" N . Y. TIM ES, Mar. 18, 2008, avai/able 0/ Imp:/ / www.nytimes.com/2008/03 / 18/us/polities/IStext-obama.html?ref=policics. 3. In Ri(d, 129 S. Ce. 2658 (2009), the Supremc Cour[ held that the City of New Havcn violated the rights offirefightcrs underTideVll ofthe 1964 Civil Rights Act when it rhrew out an exam on whieh they had scored weil el10ugh for promotion on the basis rhat no Blaeks and only one Hispanic had done the same. In so doil1g, rhe Court overrulcd a lower coun opinion joined by present justice Sotomayor, adding a unique, interesting dimension to her nomination alld confirnlation hearings. Sec article cited ;lIfm note 7. 4. Abby Goodnough, Har"""t Professor Jai/ed; OJJicer is Acc/lscd of Bias, N.Y. TIMES, july 21.2009, ar A 13.

5. See, e'c~.,john H. Bunze!, E/ill/illate file Civil R(~llts COlI/lI/issiOll, S.F. CHRoN.,jan. 25, 2009, ",milable af hup:/ /arcicles.sfgale.com/2009-01-25/opiniol1/ 17197181_I_eivilrights-col1lmission-politics-today-s-Black-Ieaders; Ta-Nehisi Co,res, 71/C Messialt Myth, TIME, Nov. 24, 2008 , ar 33;joe Klein, Pass;'~R Iltc 1brr/', TIME, Nov. 17, 2008, at 26; Eugene Robinson, 17Ie 1"e1c,m,,(e oJ Ra(e, S.F. CHRON., Apr. 3, 2009, at Al7; juan Williams, Whal Oba",a's Vi(/ory Meolls Jor Rodal!'oli,;(s, WALL ST. J., Nov. 10,2008, at A 19.

6. See, e.g., Ross Douthat, Op- Ed, Ra(e i" 2028, N.Y. TIMES,july 20,2009, ar A 19; Editorial, Tlte So!oll/ayor NOlllillO/io", N. Y. TIMES,july 21, 2009, at A20; Frank Rieh , Op-Ed. 71/Cy Got SOl/1e 'Sploi"ill 10 Do, N.Y. TIMEs,july 19,2009, at 10. Sce also jeffrey Rosen , 71le Case Agains! S%moyor, THF. NEW REPUBLlC, May 4, 2009, amilable at http:// www.tnr.com;Shelby Steele, Op-Ed, S%ll/ayor a"d rite Polilics of Ra(c, WAll ST.J.,June 9, 2009,atA14. Beyond the questions judge Sotomayor had to answer about her vore in Ricci, several on rhe Senate judiciary COl1lmirree "ked her 10 explain what has become known as her "wise Larina woman" remark: "I would hope thar • wise Latin. woman with the richness of her experiences would more often than nor reach a better conc1usion rhan a white male who hasn 'r lived th.t life." Sec Soni, Soromayor, A Larina judge's Voice,Address ar the University of California, Berkeley, School of Law, ill N. Y. TIM ES, May 15, 2009, .vai/able al http://www.nytimes.coml2oo9/0S/15/us/politics/15judge.rexr.hrl1ll.ref=us. 7. Sce, e.g. , Editorial, A Flall'ed Test Case, S.F. CHRoN.,june 30, 2ooS"r A8: Editorial, COl/rr Ti""s a Blilld Eye, PHlU,. ENQUIRER,june 30,2009, at AIO; Editorial, Firifigltrer Jus,;ce, WALL ST. J., June 30,2009, at A14; Editorial, 71re Ried R"/i"g's Real Message, CHRISTIAN SCIENCE MONlToR,june 30,2009, ar S ("The batding Ricci opinions show juSt how much

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arrest" remind us that those politics remain at the forefront of the national psyche. In Rieei, of course, the judges settfed the matter. Yet at least on paper, the U.S. is still a republic, in which the political branches of government are the prime movers of policy change through law. Commenting on Ricci, the Cllristian Seienee MOllilOr observed that America 's unsenled debate over race has tao often been conducted between judges writing liane in their chambers rather than in open forums by the public or their e1ected representatives ... . [SJuch questions should not be only for justices to decide .... The emotions of face are best left to pubIic forums and for c1ected bo dies to resolve."'

As JefTrey Rosen adds, Rieei is among recent Supreme Court rulings 'o that "may force Barack Obama to do what he has the unique skills but not the political incentive to do at the moment: carve out a third way in the race debate, one that rejects the extremes of conservative colorblindness and liberal racialism.,,11 The President, as it happens, has thought deeply about race. An illchosen COJ11ment on the Gates arrest aside," Obama's writings, speeches, and lawmaking efTorts show an ability to transcend difTerence and to articulate a third way, or higher synthesis, on such matters. These sources also show the contraetual nature of Obama's thinking-his deep belief that civil society and constitutional democracy depend upon a strong social contract between government and the individual as weil as among racial Americans hJve yet 10 reeoneile Ihe need to reduce aehievement gaps for Blocks .nd Hispanies with anions Ihat border on raeial diserimination againsl whites, as was the ease in Rieci ."); Firefighters alld RIlCe, N. Y. TIMES, July I, 2009, al A32; Linda Greenhollse,Op-Ed, J7,c Court Challges die COllie, N . Y. TIM Es,June 30,2009, at A21 ;James Oliphant, Ra« Ru/i".~ Fuels Crilies oJ SOloll/ayor, L.A.TIMEs,June 30, 2009, al All.

8. Sec, e.g., Peter Baker & Helene Cooper, Preside/ll Tries 10 Defusc Debale Oller Cales Arresr, N. Y. TIMES, July 25, 2009, al AI ; Thomas Frank, TI,e Cales of Po/iricol Dislraetioll, WALL ST.J.,July 29, 2009, al A13; Abby Goodnough, Se(~Calll 111/10 Arrcsred Professor Difellds AC/i.llS, N.Y. TIMES, July 24, 2009, al A3; Glenn C. Loury, Oballla, Cares, alld Ihe Al/lcricall B/aek Mall, N.Y. TIMES. July 26, 2009. at 11; Maria NewlIlan . J,1,ried Opillio/ls Oll cales Comroversy U.~hl IIp Ihe Web, N. Y. TIM ES, July 24 , 2009, a""i/ablc ar http:// www.nytimes.eomI2009/07125/us/polilies/25galesblo~.html?ref=politics; Susan Saulny & Robbie Brown, Professors Arresr TeSIS Bcliqs Oll Radal Progress, N.Y. TIMES,]uly 24, 2009, at Al. 9.

Editorial, Ried

RII/ilt~ 's

Real Message. s"pra note 7.

10. Jeffrey Rosen, Raee 10 Ihe Top, THE NEW REPUBLlC, Apr. 29, 2009, al 19. The other ruling to whieh Rosen rcfers is Nm AIISlill Milli. VIii. Disr. No. Olle 11. Holder, 129 S. Ct. 2504 (2009). In Ihat ease, however, the Court avoided Ihe issue whether a key provision of the 1965 Voting Righls AC! was constitulional. disposing of the dispute on narrow grounds. In another Voting Rights Ael ease last term, however, Barlleu v. Slrieklalld, 129 S. Ct. 1231 (2009) , the Court held Ihat only election distriets in whieh minorities make up at least half of the voting-age population are entided to ,he proteclions of apart of the Voting Rights Ael that seeks to ensure and preserve minoriry voting power. 11.

Rosen, supra note 10, at 19.

12.

See Baker & Coopcr, sllpra nOle 8, al 19.

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groups.1.l In a 2008 speech on race in Philadelphia, Obama invoked the bedrock norm underlying the social contract: "[i]n the end, then, what is called for is nothing more, and nothing less, than what all the world's great religions demand-that we do unto others as we would have them do unto us."'· Given this view, Democratic n1:ljorities in Congress, and the "teaching moment"" created by Sotomayor's ascendancy, Ricci's resonance and Gates's arrest, the President should find useful an analysis of racial policy and justice in light of the work of John Rawls. Rawls may be the most influential political theorist of our tiI1le."· In his seminal work, A TIleory of 13. For now, three examples will ,uflice. In his June 2009 speech Jt C.iro University, the President ca lied Oll bOlh Ihe Israelis and Paleslinians to acknowlcdge Ihe legilimacy of each olher's sufTering and righl 10 exisc. President ßarack Obama, Cairo Speech Oune 6, 2009), ailailal,lc at www.asksam.com/ebooks/reieases.Obama-Speeches.ask. [n his Jalluary 2009 Slale of the Union address,Obama underscored the civic duties of: 1) the young to finish high school and find a way to colHribllle to society and 2) Ihe middlc aged and old nOI to lave Ihe youilg with a crippling national debc. PresidelH ßarack Obal1la, Slale of the Nation (Feb. 24 , 2009), mmilable al www.asksam.com/ebooks/reieases.ObamaSpeeches.ask. PerIJaps most relevant for our purposes, he ca lied ill both his March 2008 Philadelphia speech and his July 2009 NAACP Centennial speech for ßlacks and Whil.s bOlh 10 make genuine efTorts to lInderstlnd and respecI each others claims. Sec Obama, slIpra Ilote 2; President Barack Obama, Remarks by the President to Ihe NAACP Centennial Convcntion Ouly 17, 2009), omi/alile at http://www. whitehouse.gov/the-press-oflicel relllarks-president- naacp-cenlen nial-conven lion -07162009. 14. Obama, si/pra note 2. ßeyond Ihis, as a sludent of FDR, Obama has an historical sense of Ihe social contraCI. As FDR said in 1932, in the deplhs of Ihe Greal Depression and Ihe year Ihal Hitler came to power, Ihe Declaralion of Independence discusses the problems of Governmem in lerms of a contraCI. Governillent is a relalion of give .nd take, a conlraCI, perforce, if we would follow Ihe Ihinking out of which it grew. Under such a contracI, rulers were accorded power, and Ihe peoplc consented to Ihal power on consideration thaI Ihey be accorded cerlain righls. The task of slatesmanship has always been Ihe redefinilion of Ihese rights in lerms of a changing and growing soci.1 order. .... The lerms of Ihal contraCI are as old as Ihe Republic, and as new as Ihc new economic order. Every man has a righl to li fe . .. . Every man has a righl to his own property ... [and tJhe final lerm of the high contracl was for liberty and the pursuil of happiness. FrankIin D. Roosevell, COllllllo"wrallil Club Address (1932) i" AMERICAN POLlTlCAL TUOUGHT 405, 411-12 (Kennelh M . Dolbeare & Michael S. Cummings, eds., 2004) (51h ed.). 15.

Baker & Cooper, supra nOle 8 (quoling the President).

16. Rawls has been called "Ihe mosl distinguished moral and polilical philosopher of our age," Manha Nussbaum, 17Ie Elldl/ri",~ S(~"ifiea"ee of JolIII Rawls, TUE CHRON. OF HIGIHR Eouc., July 20, 2001, al ß7, and his Iheory has been described aS "Ihe nowdominant undemanding of Iiberalism in Ihe academy... . " Peler ßerkowilz, 17,e Alllb(~uitics of Rau4s's 1,!fIueuce,4 PERSP. ON POL. , Mar. 2006, al 121. Griflin has written Ihal "Rawls's Iheory remains Ihe best and most rdevant Iheory of justice available," Stephen Griflin, Rceollslnl(/i",~ ROlllls's 17/fory 0fJuslice: Developi1lg a P"blie I-&/ues Pllilosopl,y of Ille Cousrillllioll, 62 N.V.U. L. REV. 715 , 716 (1987), and as SandeI has observed, "(~or uS in late Iwentielh centuty America, (Rawls's view of liberalisml is our vision, Ihe Iheory mOSI thoroughly embodied in Ihe practices and inslilutions mosl central 10 our public life." Michael J. San-

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Justice,17 he presented a social contract theory rh at he termed Justice as Fairness. For the next thirty years, Rawls refined rhis theory in response to a range of critics. This culminated inJHslice As Fairness: A Restalemf/Il," published a year before Rawls's death in 2002. Since then, his work has spawncd a vast literature, including a major symposium on Rawls and the law. '·' Much of this literature has critiqued, defended, or claborated upon some aspect of Rawls's theory, yet a few writers have attempted to apply his theory to concrete policy and constitutional issues .") As for the issue of race, Rawls's final statement appears in a few paragraphs ofJustice as FairIless. Referring to TIleory ofJHStice, he concludes that [T]he serious problems arising [rom existing discrimination and distinetions based on ... race are not on it' agenda .... This is indeed an omission in TIleory; bur an omission is noe as such a fault .... Justice as fairness, and other liberal conceptions like ie, would certainly be seriously defective should they lack the resourees to articulate the political values essential to

de! , 17,c Procedt/m/ Repl/blic mu/the UlleilC/llilbcrcd Sclf, 12 POl.. THEORY 81,82 (1984). As for Rawls's major work, A THEORY 0. JUSTICE, [it] is a powerful, deep, subrle, wide-ranging. systematic work in political and moral philosophy whieh has not seen its Iike since the writings of lohn Swart Mill, if then. It is a fOllntain of illuminating ideas, integrated together into a lovely whole. Political philosophers now must eicher work within Rawls's theory or explain why not. ROSERT NOZICK, ANARCHY, STATE, AN!) UTOPIA 183 (Basic Books, [ne. 1974). [n SO[UI11'S words, "the only other work in the his tory of political philosophy to bc eited at a comparable rate appears to be john Locke's Scco .. d Trcalise if GovcmlliCIlI." Lawrence B. Solul11, Sillla/i ...R Poli/iral Libero/isiIi, 69 CHI.-KENT L. REV. 549,551 n.9 (1994). As Lormore wiites, the book "changed the way the idea of soeial justice is understood, and provided the s!arting point for almost evcrything of note that has collie afterward in political philosophy." CharIes Larmore, Beili .. d Ihc Vcil, THE NEW REPUBLlC, Feb. 27, 2008, avai/able al http://www.tnr.com/artide/books/behind-the-veil. As Talisse thus adds, Rawls's intluence has been such that he literally "changed the subject." ROBERT B. TAUSSE, ON RAWLS: A LIBERAL THEORY 0, JUSTICE AND jUSTlflCATlON 78 (Wadsworth 2001). Rawls might therefore be the Darwin, Picasso, Freud, Einstein, Or Louis Arrnstrong of his fjeld. 17. JOHN RAWLS, A THEORY Of jUSTICE (Harvard Univ. Press 1999) (1971) [hereinafter, TllWRY]. 18. JOHl' RAWLS, jUSTICE As FAIRNESS: ARESTATEMENT (Erin Kelly, ed., Harvard Univ. Press 2001) [hereinafter, FAIRNESS]. 19.

Symposium, RaUlL, arid 11" La"" 72 FORUHAM L. REv. 1381 (2004).

20. Within the 2004 Fordham symposium 310ne, scholars explored Rawls's implications for gender. judicial review, international relations. constitutionalism, torts and property law. Symposium, supra note 19. Many of these writers were ehus working at the third of the fivc stages Parker identifies in "the unification of theory and praetice." As he writes, "[tlhe third stage is the work of philosophically inclined lawyers who begin where Rawls leaves off and discuss the application of his eonception of soeial justice to partieu[ar problems of collstitutional law." Richard B. Parker, TIIe J",ispmdemia/ Uscs o{ Jo/m Ra",ls, NOMOS XX: CONSTITUTIONALlSM 269, 279 (J.R. Pennock & j.W Chapman eds., N.Y. Univ. Press 1979). I shall also be working at this third stage, applying Rawls to the particular constitutional (and legislative) problems of race policy.

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justitY the legal and social institutions needed to secure the cquality of ... •

••

nunOrttIes.

:.'!I

Two related points emerge here. On the one hand, Rawls notes that whatever else he has done, he has never systematieally applied his theory to questions of race policy. On the other, he seems optimistic that this can be done in a way that advances racial justice. This Article argues that this proposition is correet, yet the coumerintuitive thesis it shall defend is as follows: While strong forms uf affirmative action cannot be derived from Rawls's theory, strong [orms of legislative reparations can be so derived. This Article is thus organized as folIows. Part I provides abrief overview of Rawls's theory of justice. Part 11 shows that this theory does not yield strong forms of affirmative action. Part III establishes a working definition of reparations for purposes of this Article. In part IV, after showing that Rawlsian legislators would distinguish between 1) affirmative action and reparations as defined and 2) two domains of publie policy, this Article argues that they would reject affirmative action yet embrace reparations," thus achieving a "third way" in federal race policy. This Article concludes by showing that with a little political courage, and the current economic crisis notwithstanding, the President and Congress could easily find the resourees for reparations as defined. I. RAWLS

JI/stice as Fairness is weil known. A brief review will thus suffice for our purposes. To begin, Wolff's sketch of the challenge the young Rawls perceived is worth quoting: the problem with which Rawls begins is the impasse in Anglo-American ethical theoty at about the beginning of the 1950's .. . . [Tjhe major cognitivist schools of ethical theoty were utilitarianisl1l and intuitionism. Each of these traditions has strcngths, frol11 Rawls's point of vi ew, bm each also has fatal wcakncsses. Rawls revives aversion of the theory of the social contract as a way of discovering a via media between utilitarianism and intuitionism.

21.

FAIRNESS, supra note 18, at 66.

22. As it happens, not only has House judiciary Committee Chairman lohn Conyers introduced reparations bills in Congress for decades, but the past few ycars have seen an upsurge in interest in reparations. Sec, e.g., Rov L. BROOKS, ATONEMENT AND FORGIVENESS: A NEW MODEL FOR BLACK REPARATIONS (Univ. of Cal. Press 2004); jENNIFER HARvEv, WHITENESS AND MORALlTY: PURSUING RACIAL jUSTICE THROUGH REPARATIONS AND SOVEREIGNTV (Dwight N. Hopkins & Linda E. Thomas eds. , Palgrave Macmillan 2007); CIIARLES P. H ENRv, LONG OVERDUE: TIIE POI.ITICS OF RACIAL REPARATIONS (N.Y. Univ. Press 2007); REPAlIAI'IONS FOR SLAVERV: A READER (Ronald P. Salzberger & Mary C. Turck cds., Rowman & Littlefield, Inc. 2004); REPARATIONS: INTERDISCII'LlNARY INQUIRIES Oon Miller & Rahul Kumar eds., 2007) ; JOHN TORPEv, MAKING WIIOLE WHAT HAS BEEN SMASIIED: ON REPARATIONS POLITICS (Harvard Univ. Press 2006): RAVMOND A. WIN8USH, SHOULD AMERICA PAV? SLAVERY AND THE RAG ING DEBATE ON REPARATIONS (Harper Paperbacks 2003).

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The principal strengths of utilitarianism are, first, irs straightforward assertion of the fundamental value of human happiness and, second, its constructive character-irs cnuneiation, that is to say, of a rulc or proeedure by wh ich ethieal questiolls are co be answered and erhieal disputes resolves. A secondary rnerit of urilitarianislll ... is its suitabiliry as a prineiple for the scttling of questions of social poliey. The two most obvious wcaknesses of utilitarianism are its inability to explain how rationally self interested pleasure-maximizers are co be Icd to substitute the general happiness for their own as the objen of their aetions and the manifestly counterintuitive, sometimes genuinely abhorrent implieations of its fundamental principie . .. . As a moral theory, intuitionism is methodologieally inferior to utilitarianism. Ir simply asserrs, flatly and without proof, rhat each of us has apower of "moral intuition" ca lied "rational" by intuitionists but exhibiting no structure of praetical reasoning, whereby we can directly apprehend the obIigatoriness of particular acts. . . . But while intuitionism is weak as an account of pracrical reasoning, it is strong in two respeers that are clcarly important to R.awls. First, it defines the right independently of the good, and so makes rightness a fundamental, irreducibly moral notion; second, it takes over from Kant the doetrine of the inviolabiliry and digniry of moral personaliry and thereby decisivdy rejens the utilitarian tendeney co view human beings as nothing more than pleasure-eontainers, tO be filled or cmptied Jike so many water jugs.'-'

Against this background, Rawls beg ins Theory by rejecting classical utilitarianism" and embracing Kant's moral imperative to treat the individual person as an end in himself, not as a means to collective ends. As he writes on the first page, each person possesses an inviolability founded on justice that even the welfare of sociery as a whole can not override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many." Under c1assical utilitarianism, by contrast, . . . soeiery is rightly ordered, and therefore just, when its major institutions are arranged so as CO achieve the greatest net balance of satisfaction summed over all the individuals belonging co it .... The striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions is distributed among individuals . . . . IItilitarianism does

1101 take seriollsly fhe distillCliol1 be/ween persons.,,,

23. 1977).

R.OBERT PAUL WOLFF, UNDERSTANDfNG RAWLS 11-12 (Princeton Univ. Press

24 . See Samuel Freeman, llllrodllClioll:Jo/lII Raw/s-AII Ove,view, ill THE CAMBRIDGE COMPANIONTo R.AWLS I, I (Samuel Freeman, ed. , 2002). 25. THEORY, Slip" note 17, at 3. See also id. at 15&-59. and Rawls's rejection ofthe average uciliry principle. id, at 139-53. Nussbaum calls this idea "simple and profound." See Nussbaum, Sllpra note 16, at B8. 26.

THEORY, sIIpra note 17, at 20,23-24 (emphasis added). Rawls concedes that

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For Rawls, c1assical utilirarianism is "incomparible wirh rhe conceprion of social cooperation among equals for mutual advantage.""

Plt is cuslOlllary to think of utilitarianislll "s individualistic, and certainly lhere are good reasons for this. The urilitarians we re strong defenders of Iiberty and freedom of thought .... Ver utilitarianism is not individualistic ... in rhar, by conflating all systems of desires, it applies to society the principle of choice for one 11l~ n.

lri. at 26. As he explains e1sewhere,

To regard individuals as ends in thel11selves in the basic design of society is to agree tO forgo those gains which do not contribute to everyone's expectarions. By contfast, ro regard persons as means is to be prepared to impose on those alrcady less f.wored still lower prospects of li fe for rhe sake of the lügher expecL1tions of others .... The principle of utility presumably requires so me who are less fortlm.rc to accept even lower life prospects for the sake of others.

M. at 157. Accordingly, the claim that "persons in the original position would eschew the proposition that individuals are to be treated as individuals," Guy-Uriel E. CharIes, Affimrarive Actioll fllld Colorbliudlless frOIll Ihe Or(~il'lal POsilioll, 78 TuL. L. REV. 2009,2032 (2004), seems misgu ided. Derrick Bell cot1llllits this kind of error in his critique of Por",rs hwolved ill COl/illlulliry Sc/wols v. Seanle and Meredirh v. Jc1fersOIl COllllly Public Sc/wols, 127 S. Cr. 2738 (2007).As he writes, It is hypocritical for Chief Justice Jolm G. R.oberts Jr. to assert thar "the way to stop discrimination on rhe basis of race is to stop discriminating on the basis of race." Thc suggestion cruelly conflates minor eures with the ,,"tior disease. Wae he a medic. 1 doctot, Robem would ban the use of vaccines that are fashioned from the disease-causing virus. Derrick Bell , Dcs~~r~~arioll~ Delllisc, THE ClIRON. Or- HIGUER EDuc.,July 13,2007, ot 11. Bd!'s mist. ke, I s"bmir, is to ."ume a moral equivalence berween the individual cells destroyed by vaccines and the individual human beings passed over duc to racial preferen«s. In no sense do, or should, those cells have the same stature, the same level of protection, under rhe U.S. Constitution, as human beings. To overlook this distincrion is to embrace the organicism .nd collectivism at the hearr of 20th century fascism. Frolll the outset ofTuEORY, by contrast, we have seen that Rawls c1early takes the liberal distinction between persons quite seriously, for good reasons, as weil as Kam's "doctrine of the inviolability and dignity of moral personality." The Fourteemh Amendmem, in cxtending equal protccrion to "any person," does the same. U.S. CONST. amcnd. XIV, § 1. Justice Powell thus embedded and operationalized this creation of rights in each person by c1arifying that raeial c1assifications by government are subjecr to strict sClUtiny. See Re1:h and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychologieal propensities:'"

Moreover, "[tJhey also do not know persons' race and ethnic group ..• .',.17 At the same time, "they know the general facts about human soci-

ety. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology."·lK For Rawls, the original position is an exercise in rational choice theoryJ" It posits decisionmakers with a unique combination of ignorance and knowledge, designed to e1iminate bias while providing the broad knowledge essential far competcnce in choosing the principles by which they will be governed.

32.

As Rawls says, he "generalizes amI carrites to a higher level of abstraction the cOl1tracr." TUEOHY, supra note 17, at 3.justicc as Fairness is thlls rooted in contraet theory, the terms of eooperation being specified by agreement, not God's law or nature's Jaw. Sec FAIIlNEss,slIpm note 18,at 14-15. traditional conception of the social

33. As for rationality, this "must be interpreted as far as possible in the narrow sense, standard in ecollomic theory, of taking the most effeetive means to given ends .... [Thus] the theory of justiee is apart ... of the theory 01' rational ehoiee." THEORY, s"pra, note 17, at 12-15. 34. Here, Rawls expbins, "[thOSel in the original position try to acknowledge prineiples whieh advanee their system of ends as far as possible. They do this by attempting to win for themselves the highest index of primary soeial goods, sinee this enables them to promote their coneeption of thc good most effeetively whatever it turns out to be. The parties do not seek to eonfer bendits nor to impose injuries on one another; they are not moved by affeetion or raneor." ld. at 125. 35.

Sec gCllcrally id. at 118-23,

36. M. at 11. Rawls calls these the "natural and soeial contingeneies."With thc veil of ignorance, it is worth noting, R..awls uses human ignorance as a tool or lever for accessing truth and/or justice. Sec ,~c/lcraJly Plato, Apolo.~y, ;/1 THE LAST DilYS OF SOCRATES 37-67 (Hugh Tredenniek & Harold Tartant, trans., Penguin 1993). 37, FAIRNESS, supra note 18, at 15. In this sense, their position is "ahistoriea!." Freeman, sl/pra note 24, at 11, By depriving rational, mutually disimerested individuals in the original position of the specifics about themselves, thc veil of ignoranee ensures that they are not lInfairly biased in their own favor. "".• wls' idea is that, where soeial justiee is in question, real people should .Iways try to ehoose without being biased in the direetion of their own special interests." Nussbaum, supra note 16, at ß8. Furcher, it a$Sures that they will be risk averse, ehoosing prilleipies for their governanee, in asense, eonservatively. Rawls illuminates the idea when he writes that "the two prineiples are those a person would ehoose for the design of a soeiety in whieh his enemy is to assign him his pbee." THEORY, SIIpra note 17, at 132-33 (emphasis added). 38.

THEORY, supra note 17,at 119.

39.

THEORY, supra note 17, at 15.

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In this light, Rawls asks, "what principles of justice are most appropriate to speciIY basic rights and liberties, and to regulate social and economic inequalities in citizens' prospects over a complete life?"'" He answers that those in the original position would choose to be governed by two fundamental principles, one securing equaliry where it is essential (in the political and legal spheres) and the other regulating inequaliry where it is inevitable (in the social and economic spheres). The first is the "equal liberty" principle, which is Rawls's foundational constitutional norm.lt provides that"[eJach person is to have an equal right [Q the most extensive total system of equal basic Iiberties compatible with a similar system of Iiberry for alL"" It is not surprising that such a principle would emerge, for liberry is the goal of democracy while equaliry is its concepti on of justice." In final form, the second principle provides that "[sJocial and economic inequalities are to satisIY rwo conditions: first, they are to be attached to offices and positions open to all under conditions of fair equaliry of opportllniry; and second, they are to be to the greatest benefit of the least-advantaged members of sociery .. . ."'-' The second principle is thus actually two sllb-principles: the fair equaliry of opportuniry ("FEO") and difference principles, respectively." As Rawls writes, "a love of man kind that wishes to preserve the distinction of persons, to recognize the separateness of li fe and experience, will use the two principles of justi ce to determine its aims when the many goods it cherishes are in . . "H oppOSItIOn. The next key idea in Rawls's theory is that the two principles are to be "Iexically ordered."That is to say, they would have an order which requires us to satisfy the first principle in the ordering before we can move on tO the second. the se co nd befoTe the third , and so on. A principle does not co me imo play umil those previous to it are fully met or do not apply. Aserial ordering avoids, then, having to balance principles at all. ... [Thus] ... I shall pro pose an ordering of this kind by ranking the principle of equal liberry prior to the principle regulating social

40.

FAIRNESS, slIpra note 18, at 41.

41. THEORY, supra note 17, at 53. As Rawls rcformulates the first principle, "[eJach person is to have the same indefeasible claim to a fuHy adequate schome of equal basic liberties, which scheme is compatible with the same scheme of liberties for all." FAIRNESS, sllpra note 18, at 42. lt has been called a "variationO on a venerable modern theme: the harmonization of a substantial human equaliry with a sweeping individual freedom ." Berkowitz, Stlpra note 16, at 126.

42.

See ARISTOTLE, THE POLrncs, (Trevor J. Saunders, ed., Penguin Books 1981).

43. FAIRNESS, supra note 18, at 42-43. On the second principle, see ge/lerally MARTIN, supra note 31. at 64-106. Inequaliry is measured via an index ofprimary goods. See FAIRNESS, supra note 18, Jt 168-75 (reply to Sen).

44 . See FAIRNESS, supra note 18, at 119-34,161-62. Let us observe here that, unlike the equalliberry principle, the FEO .nd di(ference principles .re not constitutional essentials. See id. at 162. 45.

THEORY, supra note 17, at 167.

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and economic inequaliries. This means, in elfen, rhat rhe basic srrucrure of society is ro arrange rhe in