What are constitutions, and what should (and can) they do?

Social Philosophy and Policy

Volumn 28, Issue 1, 2011, Pages 1-24

  Alexander, Larry ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79551537889     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S0265052510000038     Document Type: Article

References (66)

1. See U.S. Constitution, art. VI: "This Constitution . . . shall be the supreme Law of the Land. . . ." 2 See, e.g., Larry Alexander and Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law (Durham, NC: Duke University Press, 2001), 11-25;
2. and Larry Alexander, "'With Me, It's All or Nuthin': Formalism in Law and Morality," University of Chicago Law Review 66 (1999): 530 (hereinafter "Formalism").
3. Spike Lee is an American movie director, one of whose movies was entitled "Do the Right Thing." I am playing off this title, although the movie itself was not about law.
4. See Alexander, "Formalism," 530.
5. After all, we have moral theories about the appropriate responses to moral wrongdoing.
6. See ibid.
7. Determinacy, required for settlement, entails that rules, no matter how ideally crafted, will inevitably diverge from what morality requires in a range of cases (the over- and under-inclusiveness problem). In such cases, those subject to the rules will be faced with a choice between complying with the requirements of the rules and complying with the requirements of morality as they perceive those requirements. Settlement requires that they believe complying with the rules trumps complying with morality as they perceive it; and, as previously stated, morality itself suggests that there be settlement. Yet, if moral reasons are those reasons for acting that are always overriding, then it looks as if following rules when they appear to conflict with morality is acting against reason. If that is true, then rules cannot settle what we are morally obligated to do, which in turn means that settlement, however morally desirable, is not rationally achievable. This problem-we morally must seek but cannot morally achieve settlement-is nothing other than the perennial problem of law's normativity, or whether there can ever be an obligation to obey the law because it is the law. I view the problem of law's normativity as part and parcel of law's settlement function. But in this essay I assume the settlement function is possible and put aside the paradox that it engenders. That paradox is given exhaustive (but inconclusive) treatment in Alexander and Sherwin, The Rule of Rules, 53-95.
8. This view is relatively orthodox, but there are dissenters. For example, Michael Seidman believes a constitution's function is to unsettle matters. See Louis Michael Seidman, Silence and Freedom (Stanford, CA: Stanford University Press, 2007).
9. Even if a constitution has not been ratified according to its terms, if it is accepted by the people as the highest law (minus its ratification provisions), then it is the highest law.
10. The question of how much constitutions should be entrenched against change-and for that matter, the question of how much subconstitutional laws should be entrenched against change-is an important, complex, and controversial matter. I call it the problem of legal transitions, and it finds constitutional expression in doctrines relating to takings of property, impairments of contracts, and deprivations of vested interests. It finds meta-constitutional expression in discussions over how easily amendable constitutions should be. For a general discussion, see the symposium "Legal Transitions: Is There an Ideal Way to Deal with the Non-Ideal World of Legal Change?" The Journal of Contemporary Legal Issues 13 (2003).
11. See also Alexander and Sherwin, The Rule of Rules, 151-56.
12. In speaking of "real moral rights" or of "the moral realm," I am referring throughout to a conception of morality that views it as independent of norms created by individuals or societies, as a matter of discovery rather than invention, as a set of norms that human norms seek to mirror and by which they can be criticized. I believe that such a conception of morality, sometimes referred to as "critical morality," is metaethically modest and neutral among several metaethical positions.
13. See U.S. Constitution, amend. V: "No person shall . . . be compelled in any criminal case to be a witness against himself."
14. See U.S. Constitution, amend. I: "Congress shall make no law . . . abridging the freedom of speech." See also Leonard Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge, MA: Belknap Press of Harvard University Press, 1960).
15. See U.S. Constitution, amend. V: "[N]or shall private property be taken for public use, without just compensation."
16. See U.S. Constitution, art. I, sec. 10: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts."
17. See U.S. Constitution, amend. I: "Congress shall make no law . . . prohibiting . . . The right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
18. See Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996), 7-12.
19. See generally Larry Alexander and Frederick Schauer, "Law's Limited Domain Confronts Morality's Universal Empire," William and Mary Law Review 48 (2007): 1579.
20. Larry Alexander and Frederick Schauer, William and Mary Law Review 48 (2007): Ibid., 1595.
21. Larry Alexander and Frederick Schauer, William and Mary Law Review 48 (2007): Ibid., 1595-96.
22. See JeremyWaldron, Law and Disagreement (Oxford: Clarendon Press; New York: Oxford University Press, 1999).
23. For an analysis of the competence of courts to decide moral matters, see JeremyWaldron, "Judges as Moral Reasoners," I-Con 7 (2009): 2;
24. and Wojciech Sadurski, "Rights and Moral Reasoning: An Unstated Assumption - A Comment on Jeremy Waldron's 'Judges as Moral Reasoners,' " I-Con 7 (2009): 25.
25. See Peter Westen, "The Empty Idea of Equality," Harvard Law Review 95 (1982): 537.
26. See Larry Alexander, Is There a Right of Freedom of Expression? (Cambridge and New York: Cambridge University Press, 2005).
27. Larry Alexander, Is There a Right of Freedom of Expression?, 2005, Ibid., chap. 8.
28. I have said that referring to actual moral principles is a risky business. One reason, already mentioned, is that moral principles, unless cabined, can overrun all positive law, including those decisions meant to settle the controversial content of moral principles themselves. However, another reason is that there is no relation between the number of moral principles our vocabularies reveal and the number of moral principles there actually are.We have all sorts of moral principles as a matter of vocabulary. Thus, we can refer to freedom of speech, protection against cruel and unusual punishment, equal protection, and so on. But suppose utilitarianism is the correct moral theory. There are no such "joints" in utilitarianism. Seeking to enact only a limb, we may have enacted an entire beast. In short, if there are objective referents for our moralized enactments, there is no reason to assume that morality has the joints our terms reflect, or, if it does, that morality deems it morally permissible that it be carved at such joints.
29. What does it mean to say a principle or value has "weight"? It means that the principle or value is supposed to incline one to reach a certain result, but, unlike a rule, it does not mandate that result. Rules either apply or do not apply; and if they apply, then they determine what should be done. Principles or values, in contrast, are supposed to be always applicable but can be outweighed by other principles or values that incline one in the opposite direction.
30. Again, real moral principles are themselves not human creations. See note 10 above. I take no position here on whether real moral principles actually have weight, or whether instead they are complex algorithms whose complexity is taken for weight. (I lean heavily toward the latter position.)
31. In a recent essay, Tara Smith argues that when lawmakers refer to "concepts" in their enactments, the meaning those concepts possess is not the list of things the lawmakers had in mind, nor is it the criteria the lawmakers were employing in constructing that list. Rather, the meaning of such concepts is the things in the world that the concepts themselves pick out. So when the lawmakers use terms like "cruel," "speech," or "equal protection" in the laws they enact, correct interpretation requires looking not at what the lawmakers meant by those terms but at what sorts of things in the world are really cruel, speech, or equal protection. See Tara Smith, "Why Originalism Won't Die: Common Mistakes in Competing Theories of Judicial Interpretation," Duke Journal of Constitutional Law and Public Policy 2 (2007): 159, 189-92. I do not want to get into the deep waters of what concepts are and what the relationship is between words and concepts, between criteria and concepts, or among natural, artifactual, and fictional kinds as they relate to concepts. (Is there an "objective" concept of, say, a unicorn or a table that possibly differs from users' criteria?) I want to restrict my comments here to the kinds of concepts that Smith uses as her examples. For one might be tempted to believe that these are what legal principles are: that is, legal principles are the normative concepts referred to in legal enactments. I have conceded that real moral principles can be referred to in legal enactments and thereby be incorporated into the law, though I have also alluded to the risks of doing so. I shall return to this possibility momentarily.
32. What I want to consider first is whether there are moral concepts that can exist apart from being part of morality as it actually is. For example, suppose, as I have argued elsewhere (see note 23 above), that there really is no defensible principle of freedom of expression. Is there nonetheless an objective "concept" of freedom of expression to which a user of this term could be referring? Or suppose the normative idea of equality is "empty" (see, e.g., Westen, "The Empty Idea of Equality"). Is there nonetheless an objective "concept" of "equal protection"? Of course, even if there are no objective moral concepts other than those picked out by correct moral theory, we can refer to incorrect moral theories. I may not believe utilitarianism is correct as a moral theory, but I can refer to it and apply it. What is important, however, is that I can do these things based on the criteria that I and others use to define utilitarianism.
33. Apart from the criteria that define it, utilitarianism as a false moral theory has no other ontological status. There is no independently existing "concept" of utilitarianism sitting in some ontological warehouse waiting for someone to come along and refer to it. My view, then, is that the one possibility that is open is that when lawmakers use a moralized term like "freedom of speech" or "equal protection," they are either enacting a determinate rule that is fixed by the specific criteria they have in mind, or they are referring to and incorporating actual moral principles. Legal principles, in other words, could just be actual moral principles referred to by laws.
34. See Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 81-130;
35. and Ronald Dworkin, Law's Empire (Cambridge, MA: Belknap Press of Harvard University Press, 1986), 176-275.
36. Synchronic fit is fit with currently existing posited legal materials, such as the constitution, statutes, and administrative rules. Diachronic fit is fit with past legal decisions. Dworkin's legal principles must fit legal materials along both dimensions.
37. Larry Alexander and Ken Kress, "Against Legal Principles," in Andrei Marmor, ed., Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press; New York: Oxford University Press, 1995), 279-328.
38. See Robert Alexy, A Theory of Constitutional Rights (Oxford and New York: Oxford University Press, 2002).
39. Robert Alexy, A Theory of Constitutional Rights, 2002 Ibid., 50-54.
40. Robert Alexy, A Theory of Constitutional Rights, 2002 Ibid., 50-54.
41. Robert Alexy, A Theory of Constitutional Rights, 2002 Ibid., 49.
42. Robert Alexy, A Theory of Constitutional Rights, 2002 Ibid., 47-48, 80-81 n. 143, 86, 92.
43. Robert Alexy, A Theory of Constitutional Rights, 2002 Ibid., 66.
44. Robert Alexy, A Theory of Constitutional Rights, 2002 Ibid., 61.
45. Robert Alexy, A Theory of Constitutional Rights, 2002 Ibid., 81.
46. See, e.g., Robert Alexy, A Theory of Constitutional Rights, 2002 ibid., 83.
47. Standards are delegations to future decision-makers to engage in first-order practical reasoning and (unlike rules) do not themselves authoritatively settle controversies over the deliverances of such reasoning. But is this true of standards that require the future decisionmaker to consider certain factors or criteria? To answer this, one should distinguish two types of multifactor standards. One type requires the decision-maker to consider certain factors (criteria) but does not preclude the decision-maker from also considering other factors that the decision-maker may think relevant to the correct all-things-considered judgment. Such a multifactor standard is not a counterexample to the claim that standards invite first-order practical reasoning. The factors are merely things the standard promulgator thinks will probably bear on that reasoning. But the future decision-maker is not precluded from taking into account any factor that bears on that reasoning.Astandard issued by the owner of a major league baseball team to the team's general manager instructing him, when trading ball players, to consider batting average, fielding percentage, and salary, among other factors, leaves the general manager unconstrained in making the best all-things-considered baseball decision. He can give the named factors whatever weight he believes they possess. The second type of multifactor standard requires the future decision-maker to consider nothing but the mentioned factors. This type of standard is really a combination of a standard and a rule. It essentially directs the decision-maker to make an all-things-considered judgment (a standard) but, in doing so, to screen out all considerations but the named factors (a rule). The decision-maker would, in essence, be bound by the rule portion to assume that all the relevant factors he is not supposed to consider are in equipoise, even if they really are not. It would be like a directive from the owner to the general manager to determine trades based only on batting, fielding, and salary, and to assume therefore that all the players are equal in leadership qualities, tendencies to injury, fan appeal, and so on.
48. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution (New York and Oxford: Oxford University Press, 1982);
49. and Mitchell N. Berman, "Constitutional Theory and the Rule of Recognition: Toward a Fourth Theory of Law," in Matthew D. Adler and Kenneth Einar Himma, eds., The Rule of Recognition and the U.S. Constitution (New York and Oxford: Oxford University Press, 2009), 269-94.
50. Mitch Berman has recently argued that "the Constitution" is really our practice of constitutional argument. See Berman, "Constitutional Theory and the Rule of Recognition." But this "argumentative practice" conception of the Constitution seems to me to entail a category mistake. The fact that we argue about the Constitution's meaning does not mean that the Constitution is itself the practice of constitutional argument. To assert the latter would be to confuse the external perspective on what constitutional lawyers are doing- "they're arguing about constitutional meaning"-with the internal perspective of the participants themselves-"we're arguing about constitutional meaning." If Berman's view were correct, then when scientists argue about string theory or elementary particles, we would be justified in saying that string theory and elementary particles are argumentative practices. That would, however, be obviously absurd. Berman has also recently argued that constitutional meaning is a matter of achieving reflective equilibrium among our various "constitutional intuitions," intuitions that are independent of our views about authorially intended meaning.
51. See Mitchell N. Berman Reflective Equilibrium Constitutional Method: The Case of John McCain and the Natural Born Citizenship Clause (forthcoming). I deny that we have independent constitutional intuitions of the type required by the methodology of reflective equilibrium. For the full argument against this position see Larry Alexander "Simple-Minded Originalism" (forthcoming).
52. I should mention as well the famous "Kripkenstein" puzzle regarding how a quite limited momentary mental state-the mental state to which authorially intended meaning refers-can cover a limitless number of applications not present to the author's mind at the moment of communication. See Alexander and Sherwin, The Rule of Rules, 112-14. However that puzzle is to be resolved, it nonetheless seems to be true that we can justifiably assert that an author did or did not intend his promulgated norm to cover cases not present to his mind at the moment of the norm's utterance.
53. See Cooper v. Aaron, 358 U.S. 1 (1958).
54. See Waldron, Law and Disagreement.
55. See Mitchell N. Berman, "Constitutional Decision Rules," Virginia Law Review 90 (2004): 1;
56. and Kermit Roosevelt, "Constitutional Calcification: How the Law Becomes What the Court Does," Virginia Law Review 91 (2005): 1649.
57. An issue of great importance, not to my knowledge discussed anywhere in the literature, is how to constrain courts from crafting implementing doctrines that undermine constitutional rules with which they disagree. For if courts must resort to moral reasoning in crafting implementing doctrines, and if courts believe the constitutional rules they are implementing offend morality, then they will be prone to craft doctrines that make application of such rules extremely difficult. For example, they may impose a very high burden of proof on litigants claiming that those constitutional rules have been violated. The lesson here is that constitutional authors would do well to protect their constitutional rules by also authoring implementing doctrines, thereby giving unfriendly courts less room to maneuver.
58. See Larry Alexander and Frederick Schauer, "On Extrajudicial Constitutional Interpretation," Harvard Law Review 110 (1997): 1359. On most interpretations, the United States Constitution does not do this. (Pubitemid 127437500)
59. See Michael Stokes Paulsen, "The Intrinsically Corrupting Influence of Precedent," Constitutional Commentary 22 (2005): 289;
60. and Gary Lawson, "Mostly Unconstitutional: The Case Against Precedent Revisited," Ave Maria Law Review 5 (2007): 1.
61. See Legal Tender Cases, 79 U.S. 457 (1870).
62. Roe v. Wade, 410 U.S. 113 (1973).
63. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 843-901 (1992).
64. One should compare the Casey plurality's treatment of Roe as precedent with the same justices' treatment of the precedent of Bowers v. Hardwick, 478 U.S. 186 (1986) in Lawrence v. Texas, 539 U.S. 538 (2003).
65. See Frederick Schauer, "Amending the Presuppositions of a Constitution," in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton, NJ: Princeton University Press, 1995), 145-61.
66. See Larry Alexander and Frederick Schauer, "Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance," in Adler and Himma, eds., The Rule of Recognition and the U.S. Constitution, 175-92.