Jump to ContentJump to Main Navigation
On Constitutional Disobedience$

Louis Michael Seidman

Print publication date: 2013

Print ISBN-13: 9780199898275

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199898275.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.  Subscriber: null; date: 23 October 2019

Ordinary Laws and Extraordinary Arguments

Ordinary Laws and Extraordinary Arguments

Chapter:
(p.117) Chapter Five Ordinary Laws and Extraordinary Arguments
Source:
On Constitutional Disobedience
Author(s):

Louis Michael Seidman

Publisher:
Oxford University Press
DOI:10.1093/acprof:osobl/9780199898275.003.0005

Abstract and Keywords

This chapter examines whether or not people should follow ordinary laws, given that constitutional obedience is flawed and that laws are self-contradictory since it can threaten civil liberties. The chapter also considers the question of whether there is an obligation to obey the Constitution at all. With regard to ordinary laws, it emphasizes the fact that some ordinary laws are too old and that some were enacted under dubious means. Furthermore, this chapter analyzes the possibilities of the process of judicial review in a world without constitutional obligation by utilizing four theories: the rationalist, existentialist, Rawlsian, and contestation theory.

Keywords:   ordinary law, constitutional obedience, US Constitution, civil liberties, judicial review, rationalist theory, existentialist theory, Rawlsian theory, contestation theory

IN THIS CHAPTER, I discuss two possible extensions of my argument, each of which might be thought of as a basis for objecting to it. One extension reaches downward. If, as I claim, there is no obligation to obey the Constitution, then what about the obligation to obey lesser enactments? Don’t my arguments imply that there is also no obligation to obey ordinary laws? Conversely, if one thinks that there is an obligation to obey ordinary laws, doesn’t that mean that there is also an obligation to obey the Constitution?

The other extension reaches upward. I have claimed that constitutional obligation is destructive of authentic deliberation because it uses an undefended premise (that we have a duty of constitutional obedience) to obstruct and divert good-faith dialogue about what actually divides us. But constitutional argument is not the only form of discourse that has this effect. People who believe in constitutionalism rarely rank the Constitution at the top of their hierarchy of beliefs. Ultimately, most people believe that something else—perhaps religious commitments or a secular conception of justice and human flourishing— (p.118) is truly basic. Indeed, part of my strategy for attacking constitutional obligation has been to exploit conflicts between constitutional commands and other fundamental commitments.

Suppose, then, that constitutional obligation disappears. Isn’t it likely that constitutional argument would simply be replaced by argument grounded in these other commitments? And wouldn’t resort to these commitments also serve as arbitrary argument stoppers? Constitutional obligation might be thought of as a good precisely because it is something that people with different fundamental beliefs can agree on. If the Constitution were eliminated, we would still resort to undefended foundations, but now the foundations would be profoundly controversial.

There are two possible strategies for dealing with these objections. The first concedes that each extension is justified and argues that we ought to embrace it. On this view, there is no obligation to obey ordinary law, and people should forsake other sorts of fundamental commitments that ground their arguments. As I discuss below, I think that there is something to be said for this stance. Ultimately, though, I embrace the alternative strategy and argue that neither extension is required. One can forego constitutional obligation without giving up on legal obligation more generally, and one can condemn using the Constitution as a foundation without giving up on a more general foundationalism.

Ordinary Laws

Consider, first, the problem of ordinary laws. Don’t all the arguments that I have made against constitutional obligation in the previous chapters also apply to ordinary statutes? After all, like the Constitution, some statutes are very old and no longer reflect current values. Like the Constitution, some statutes were enacted using questionable procedures and did not fairly reflect popular opinion even on the day that they were (p.119) enacted. Although statutes are not formally entrenched in the way that the Constitution is, there are often substantial real-world inertial barriers to repeal or revision. Like constitutional obligation, ordinary legal obligation requires us to give up on our all-things-considered decisions when faced with legal commands that conflict with those decisions. Like the Constitution, statutes confront us with the question of why we should ignore our best moral, political, and prudential views just because they conflict with words written on a piece of paper.

In fact, I think that there is much to say in support of what is sometimes called “philosophical anarchism”—the view that there is no general obligation to obey the law. I will not rehearse the arguments for and against that position here, except to say that the consequences of philosophical anarchism are far less dire than many think.

The fact that there is no obligation to obey the law does not mean that there are no reasons to do so. Most laws, at least in our society, at least in my opinion, are not unjust. Even when they are not required by justice, many laws serve important coordination functions. Moreover, in at least some cases, the consequences of widespread disobedience of moderately unjust laws would be worse than those produced by obedience. Perhaps most significantly, there will often be strong prudential reasons to obey the law even when there are not reasons grounded in justice for doing so. Laws come with penalties for violation, and the desire not to risk the penalty is often reason enough to obey. On all these grounds, people who reject the notion of an obligation to obey the law might nonetheless have good reason to obey. The fear that philosophical anarchism inevitably leads to actual anarchy is overblown.

I would therefore not be terribly concerned if the decay of constitutional obedience led to a more general skepticism about an obligation to obey the law. In fact, though, the issues of constitutional and more general legal obligation are separate, and even a person who is convinced that legal obligation is essential can embrace my argument that we should give up on constitutional obligation.

(p.120) One reason why the Constitution differs from ordinary laws is that, at least in our culture, the Constitution has a more destructive impact on ordinary debate. Suppose, for example, that I am an opponent of a national health care statute. Without constitutional obligation, I will argue that the statute should be repealed. Issue will then be joined on the moral and policy questions posed by the statute. Suppose, though, that I say that the law is unconstitutional. In our culture, no one, or almost no one, says that the Constitution should be repealed. The argument therefore shifts from a discussion of the merits to a discussion of constitutional interpretation and doctrine—a discussion that at once raises the stakes and distracts our attention from the real issues.

Moreover, even if the arguments against legal and constitutional obligation were equally powerful, the arguments for legal obligation are stronger. To see why this is so, we need to examine more closely the various arguments that are said to support an obligation to obey the law. My strategy is to show that even if these arguments are correct, they simply do not apply to constitutional duty.

There is a vast literature on legal obligation, and I will not attempt to summarize all of it here. Instead, I will rely on a recent essay by legal philosopher A. John Simmons, which usefully groups these arguments into three categories. Simmons calls them associative theories, transactional theories, and natural duty theories. Simmons himself believes that none of these theories adequately supports a general obligation to obey the law, and I am inclined to agree. Suppose, though, that he is wrong about this. On the assumption that one or all of them require legal obedience, do any of them require constitutional obedience? I think not.

Associative theories claim that legal obedience is simply a conceptual entailment of what it means to be a citizen or, relatedly, that legal obligation is part of the network of expectations that necessarily comes with living with others under a single political authority. Even as a defense of legal obligation, the theories seem to beg the important (p.121) question. The theories use definitional stipulation rather than argument to prove the existence of the obligation. They claim, for example, that legal obligation is simply built into the definition of citizenship. The weakness of the theories is that one can easily avoid the desired conclusion (that one has an obligation to obey the law) by changing the definition.

At least when applied to legal obligation, though, the theories have some superficial plausibility. It is impossible to imagine a political community without laws, so it makes some sense to say that obligation to obey those laws is built into the idea of such a community. When applied to constitutional obligation, the theories become completely implausible. If obedience to a constitution were just what it meant to be part of a political community, then there could be no political communities without constitutions. In fact, though, for several millennia, constitutions were the exception rather than the rule. Many political communities have existed and functioned perfectly adequately without constitutional obligation for the simple reason that they have functioned perfectly adequately without constitutions. And as I have argued above, our own political community has adequately functioned despite widespread and persistent constitutional violation. The theoretical claim that constitutional obligation is definitionally built into the idea of citizenship and political association is decisively refuted by history and by facts on the ground.

Transactional theories of obligation are not burdened by this unsatisfactory feature of associative theories. They rest instead on the claim that by taking advantage of a system of laws, an individual implicitly consents to be bound or at least creates an obligation to reciprocate for the benefits she derives from the willingness of others to obey. Simmons and others have powerfully refuted these arguments, but the theories nonetheless hold some intuitive appeal. No doubt, people benefit from having an organized state with a system of laws. Because such a system depends on mutual forbearance, it makes some sense to say (p.122) that a person who benefits from the forbearance assumes an obligation to forbear himself.

Once again, though, whatever force transactional theories have is lost when they are applied in the constitutional sphere. Just about everyone agrees that we all benefit from a system of laws. In contrast, the central argument of this book is that we do not benefit from constitutional obligation. My claim is not that some people should get the benefit of constitutional obedience while not having to assume its burden. My claim, instead, is that all of us should give up on constitutional obligation.

A similar argument defeats natural duties theories when applied to constitutional obligation. The starting point for these theories is that having states and organized societies is an important good and that the emergence of a war of all against all that would flow from the destruction of states and organized societies would be catastrophic. From this premise follows the conclusion that we all have a natural duty to uphold states and that widespread obedience to law is necessary to uphold them.

I have already outlined reasons why we should be skeptical of the claim that the decay of legal obligation would lead to the demise of states. Even if it would, though, it does not follow that the decay of constitutional obligation would produce similar results. States cannot function without laws, but they can function without constitutions. Indeed, my argument in this book is that our own state would function much better without constitutional obligation. If the argument is correct, then natural duty theories face in the opposite direction. It turns out that all of us have a natural duty to share fairly in the arduous but important work of undermining constitutional obligation.

Where does this leave us? Suppose that many of the arguments against constitutional obligation also apply to legal obligation more generally, as I suggest at the beginning of this chapter. Even on this assumption, it does not follow that rejection of constitutional obligation (p.123) entails rejection of legal obligation. Because no one in our culture argues for repeal of the Constitution, constitutional obligation distracts us from the ordinary policy debates we should be having in a way that general legal obligation does not. Moreover, as we have just seen, there are arguments in favor of legal obligation that may be dispositive. For example, if the decay of legal obligation would produce a Hobbesian nightmare, then surely that fact outweighs any of the disadvantages legal obligation imposes. But for reasons I have outlined, the (perhaps dispositive) arguments for legal obligation do not apply to constitutional obligation. Because there is nothing to outweigh the reasons for giving up on constitutional obligation, we ought to do so.

There is nonetheless a second sort of worry that proponents of legal obligation might have. Even if the abandonment of constitutional obligation does not logically entail the abandonment of legal obligation, there might still be an empirical link between the two.

The purported link derives from the fact that the Constitution serves to legitimate ordinary law. We often focus on the limits that constitutions place on government, but we tend to lose sight of the fact that they also enable governments. As things stand now, if someone asks why one should obey a federal statute, a natural answer is that one should obey because the statute was duly enacted by the means specified in the Constitution. The worry is that if it turns out that the Constitution itself need not be obeyed, this argument for statutory obedience would collapse. Put differently, without a constitution, how would we know that a measure passed by Congress is a law and not just meaningless ranting by a bunch of pompous and superannuated poseurs? And wouldn’t doubt about what is and is not a law erode obligation to obey the law?

A full answer to these questions would require a book-length jurisprudential analysis of how one ought to define “law” as well as another book-length sociological analysis of what causes people to recognize something as law. Without undertaking that task here, though, I think we can see why we should be doubtful about these concerns.

(p.124) Let’s start with the jurisprudential problem. There is, indeed, a puzzle about how certain declarations gain the status of “law,” but constitutions do not solve the puzzle. The problem is that for a constitution to determine whether pronouncements that purport to be laws really are, the constitution itself would have to be legitimate. But if it is really true that legitimacy must be grounded in constitutions, then a given constitution could not attain this status unless it were enacted pursuant to some preexisting constitution. And what, then, would make that preexisting constitution legitimate?

Sometimes people respond to this problem by claiming that our own Constitution gains its legitimacy from popular sovereignty. It is legitimate because it was enacted by “We the People.” It should be evident, though, that this is no solution at all.

For one thing, the purported solution simply assumes that democratic legitimacy trumps other sources of legitimacy, such as those derived from substantive justice. But what is the grounding for this? Moreover, even if we assume that democratic processes are sufficient to legitimate, it is far from clear that ratification of the Constitution really did reflect popular will, even at the time of ratification. It is still less clear that it reflects contemporary popular will.

Finally, it is important to understand that there is no such thing as unmediated and free-floating popular will. Popular will must inevitably be formed and measured by certain institutional mechanisms. For the resulting constitution to be legitimate, these mechanisms must themselves be legitimate. For example, for our own Constitution, the institutional mechanisms included a national convention and individual ratifying conventions organized on a state-by-state basis. Representatives to each of these state bodies were chosen by a limited electorate and by a particular set of voting procedures. The conventions themselves utilized a particular set of rules governing debate and voting procedures. Moreover, these mechanisms operated against background distributions of political power, economic power, access to media, education, and so forth.

(p.125) It is obvious that different institutional mechanisms and different background distributions might have yielded different results. The particular mechanisms and distributions existing at the time of the framing, in turn, were created by legal rules. For the Constitution to be legitimate, we would need an explanation for what legitimated these legal rules. Their legitimacy cannot rest on popular sovereignty because they were the mechanisms by which popular sovereignty was measured and formed.

Problems like these caused the famous legal philosopher H. L. A. Hart to conclude that there could not be law all the way to the bottom. At some point, what he called the “rule of recognition”—the rule that allows us to determine the legal status of other purported rules—must be grounded in sociological fact rather than law. As Hart argued, the ultimate rule of recognition rests on the brute fact that at least some people in society have what he called an “internal point of view” with regard to certain rules—that is, for whatever reason, they simply thought that they had a legal obligation to obey the rules. What makes our Constitution “law,” therefore, is not its democratic pedigree or the fact that it was authorized by previously existing law, but the simple fact that government officials treat it as law.

If it were true as a sociological fact that felt constitutional obligation was necessary to produce an internal point of view with regard to ordinary statutes, then defenders of statutory obligation would have reason to worry about the proposals I have argued for in this book. But what reason is there to suppose that it is true? Perhaps at the beginning of our history, a constitution was necessary to establish the mechanisms of government. As we have just seen, though, the framing generation managed to produce mechanisms for ratification that they treated as legitimate and that necessarily preceded the Constitution. In any event, we are a long way from the beginning of our history now. After over two centuries, most Americans have expectations about how government works. They know, for example, that presidents serve for four years (p.126) and that the Congress consists of a House and a Senate. Even without a constitution, someone who suggested that we ignore these longstanding practices would bear a very heavy burden of proof. As Hart’s argument implied, as a logical matter, this knowledge of what counts as law cannot derive from the Constitution. As an empirical matter, the knowledge is simply a fact that exists in the world and is likely to remain a fact, whatever the status of the Constitution.

Some support for this argument can be derived from the experience of countries without constitutions. Laws in New Zealand, the United Kingdom, and Israel are not legitimated by written constitutions because these countries do not have written constitutions. Yet there is no evidence that these countries are plagued by ambiguity concerning the rule of recognition.

Even in the United States, not all the mechanisms of government trace their legitimacy to the federal Constitution. Consider, for example, the powers of the several states. According to standard accounts, states were not created by the Constitution. Instead, they preexisted the Constitution and served as the vehicles through which the people ceded power to their new federal government. The Constitution’s Tenth Amendment preserves the power of the states not delegated to the federal government, but those powers plainly existed before they were preserved. It cannot be, then, that it is the federal Constitution that makes state law legitimate. Yet we do not see a collapse of the rule of recognition with respect to state law.

Similarly, in United States v. Curtiss-Wright Corporation, the Supreme Court, in an opinion by Justice Sutherland, held that the federal government’s foreign affairs powers were not grounded in the Constitution. Sutherland wrote that “[t]he powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.”

(p.127) If Sutherland was right, then the Constitution does not legitimate the pronouncements made by the federal government with respect to foreign affairs. Yet no one claims that these pronouncements are not law. Of course, Sutherland’s analysis might have been wrong. But focusing on the soundness of his argument emphasizes the artificiality of the notion that the Constitution is necessary to legitimate law. The vast majority of Americans have never read Curtiss-Wright and have not spent a moment of their time pondering whether the foreign affairs power derives from the Constitution or is an inherent feature of sovereignty. Instead, people simply have a deep but thoroughly atheoretical understanding that certain pronouncements by certain officials count as law.

None of this means that without a Constitution there would be no disputes at the margin concerning what counts as law. Suppose, for example, that, perhaps because of a clerical mistake, a bill passed by the House of Representatives was slightly different from a bill passed by the Senate and signed by the president. Is the bill really a law? If people disagreed and they were not allowed to resort to the Constitution to resolve their disagreement, how could the matter be settled?

I must confess that this is a trick question. What I have described is a real case, not just a hypothetical one, and the Supreme Court had no difficulty settling the matter without resort to constitutional obligation. In Marshall Field & Co. v. Clark, a company resisted a levy under the Tariff Act of 1890 on the grounds that the “law,” as evidenced by the enrolled bill, was not really a law because the same text had not been enacted by both Houses of Congress. The Supreme Court assumed for purposes of the case that the claim was true, but nonetheless held that the enrolled bill should be treated as law. As the Court observed:

[W]e cannot be unmindful of the consequences that must result if this court should feel obliged, in fidelity to the Constitution, to declare that an enrolled bill, on which depend public and private (p.128) interests of vast magnitude, and which has been authenticated by the signatures of the presiding officers of the two houses of Congress, and by the approval of the President, and been deposited in the public archives, as an act of Congress, was not in fact passed by the House of Representatives and the Senate, and therefore did not become a law. …

Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act … should at any and all times be liable to be put in issue and impeached. … Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.

In other words, the Court had no difficulty in recognizing the putative statute as a law even on the assumption that the constitutionally mandated prerequisites for enactment (passage of the same bill by both Houses of Congress) were not obeyed. It determined that the measure was a law not because of constitutional obligation, but on frankly utilitarian grounds. Precisely because doubt about what counts as law would lead to “mischiefs absolutely intolerable,” the Court formulated a rule of recognition that did not depend on the Constitution. If constitutional obligation disappeared, there is no reason to doubt that a court could do the same thing.

Of course, Marshall Field concerned only the formal limits on law making. Suppose someone challenged a statute on substantive grounds. For example, suppose that Congress enacted a statute requiring all individuals to purchase health insurance. In the absence of constitutional obligation, no one could claim that the putative statute was not a “real” law on the ground that it exceeded Congress’s commerce clause powers. Still, one could imagine someone denying the legal status of the measure without referring to the Constitution on the grounds that it inappropriately interfered with liberty or with the status of the states.

(p.129) Without the Constitution to rely upon, what would a court make of these claims? Just as the Marshall Fields Court relied on extra-constitutional concerns to decide on the legal status of the Tariff Act, a court might rely on such concerns in deciding on the legal status of an individual health insurance mandate. Arguably, this is not very different from what courts do now when they “interpret” vaguely worded constitutional text. For example, the Court’s decisions determining that there are important limits on affirmative action or that there is a right to gay sex are at best tenuously tied to the constitutional text. Rather than textual exegesis, they reflect some mix of policy judgments, interpretations of our traditions, moral determinations, and prudential conclusions. Without constitutional obligation, one could easily imagine a court deciding issues like these on similar grounds.

This is not to say that the disappearance of constitutional obligation would make no difference. The Supreme Court would no longer be able to hide behind the pretense that it was merely interpreting the Constitution. Instead, it would have to defend openly the proposition that an elite, deliberative, and reason-giving body should have a check on the political branches. There is something to be said for such a check, but of course there is also much to be said against it.

In the absence of constitutional obligation, the decision whether to have judicial review of this sort would, itself, be grounded in extra-constitutional considerations. I have no idea how the struggle over the Court’s functions would ultimately be resolved, but at least the argument would be an honest one about what the Court actually does and what is actually at stake.

However the argument came out, there is no reason to think that the outcome would produce less respect for statutory law than we have now. As things stand now, people can claim the right to ignore laws because they violate the Constitution. Because the Constitution is open-textured and subject to different interpretations, our rule of recognition is ambiguous, and this ambiguity erodes the moral obligation (p.130) to obey ordinary statutes. Without constitutional obligation, this reason for disregarding statutory law would no longer exist. People might nonetheless insist that enacted statutes are not “real” laws on some other grounds, but if this insistence proved too destabilizing, we could utilize the remedy that we utilize now—final resolution of the question by the Supreme Court. Alternatively, we could abolish judicial review of statutes, adopt more generally something like the “enrolled bill rule” that the Court created in Marshall Fields, and treat all facially valid statutes as law. Either way, there is no reason to think that respect for ordinary statutes would decline.

Extraordinary Arguments

The possibility of judicial review in this new world raises a different set of concerns, however. Courts exercising this review would presumably resort to some sort of more general principles to decide the cases before them. Perhaps the judges would begin with a presumption favoring individual liberty or, alternatively, with a presumption favoring democratic decision making. Perhaps they would resort to Kantian or utilitarian theories. Perhaps they would even refer to biblical teachings. Wouldn’t use of any of these principles pose all the evils I have attributed to constitutional principles? As a functional matter, wouldn’t these principles be constitutional?

Unfortunately, this problem would not disappear even if we chose to abolish judicial review along with constitutional obligation. As we saw in chapter 2, judicial review is not the source of constitutionalism’s difficulties. Even if there were no judicial enforcement of the Constitution, other political actors might make decisions based upon constitutional principle. Similarly, in a world without either judicial review or constitutional obligation, other political actors would resort to fundamental nonconstitutional commitments. With or without (p.131) judicial review, we need to ask why anyone should think that resort to these commitments is somehow better than resort to constitutional commitments.

In order to respond to this challenge, it is necessary to separate out four different theories regarding the appropriate forms of political argument. For convenience, but at the risk of considerable oversimplification, I will label them rationalist theory, existentialist theory, Rawlsian theory, and contestation theory.

The rationalist account is grounded in ideals associated with the Enlightenment. On this view, all of our opinions should be held provisionally. They are all always open to challenge, and we should abandon them as soon as we conclude that they are not supported by reason. The failure to provide a reason that one can realistically expect others to accept makes a position merely arbitrary. To insist on that position without the ability to give a reason for it disrespects the autonomy and rational capabilities of one’s audience and amounts to an attempt to get one’s way by brute force.

A rationalist account creates serious problems for constitutional obligation. When a constitutionalist is asked why we should forego certain actions that we would otherwise undertake, she replies “because they are unconstitutional.” But for a rationalist, this response only begs the question. What reason do you have, the rationalist asks, for why the Constitution is dispositive? Of course, the constitutionalist might offer reasons, but the project of this book is to demonstrate that these reasons are unpersuasive. In any event, at least in our culture, constitutionalists are rarely or never forced to defend their stance with reasons. Instead, constitutionalists get away with treating their position as being above argument. For a rationalist, this stance is unacceptably arbitrary and authoritarian.

There is an obvious problem with rationalism, however. At some point, reason necessarily gives out. This fact makes it easy for a constitutionalist to turn the tables on a rationalist. A constitutionalist is (p.132) within her rights to demand a reason from the rationalist for wishing to pursue an unconstitutional course of action. The rationalist might respond that the course of action produces the greatest good for the greatest number, or that it vindicates God’s law, or that it respects the autonomy of individuals. But then the constitutionalist can demand reasons for why these commitments justify action. Just as the quest for a legitimate basis for law leads to infinite regress, so too there cannot be reasons all the way to the bottom. Hence, the worry that if constitutionalism were abandoned, the regress will necessarily end in some other undefended foundation.

A response to this difficulty, which I will label “existentialist,” abandons the task of providing underlying reasons. Precisely because the demand for reasons produces an infinite regress, we should not begin down this pointless path. Any foundational reason is arbitrary and undefended. That is, after all, what it means for the reason to be foundational. We create the illusion that these reasons settle the matter before us only by failing to ask the next question down the road of infinite regress. Using foundational reasons as an excuse for action or inaction amounts to a cowardly technique for hiding our own freedom from us.

If the existentialist is right, then the entire quest for a legitimate source of political power is misguided. There are no legitimate sources; there is only power. At the base of the long chain of tedious and meaningless argumentation is human freedom and choice. All we can expect of human beings is that they honestly recognize this fact and use whatever tools they have available to lead the kind of lives they choose to lead.

Depending on one’s temperament, one might find these views exhilarating, terrifying, liberating, or deeply evil. At least in some moods, just as I think that there is much to be said for giving up on legal, as well as constitutional, obligation, so too I am attracted to the abandonment of nonconstitutional as well as constitutional foundations. The entire project of trying to reason people into a corner—of imagining that (p.133) there is some universal language that will or ought to definitively resolve our disagreements without the exercise of power—sometimes strikes me as naïve and misguided. Worse yet, foundational argument tends to label opponents as not just wrong, but also outside the moral universe. For this reason, we may actually show more respect for our opponents by acknowledging that our differences cannot be resolved by rational dialogue.

Still, it is asking a lot to expect people to give up on the entire project of reason-giving political discourse, and the very fact that I am writing this book demonstrates that I have not entirely given up on it. Suppose that one wants to hang on to the possibility of authentic political dialogue. Is there an argument for abandoning constitutional foundationalism even if it is replaced by a different sort of foundationalism? I think that there is. The structure of the argument I offer below is the mirror image of the argument for differentiating between constitutional and legal obligation. With regard to obligation, I argued that legal duty might achieve important goods not achieved by constitutional duty. Here, I argue that constitutional foundationalism creates significant evils not produced by other forms of foundationalism.

In order to understand the argument, we need to explore two other responses to the problem of political disagreement: Rawlsian theory and contestability theory. By Rawlsian theory, I refer to a complex of arguments, loosely associated with the work of John Rawls, that focuses on the need to advance “public reasons” for political action. Like existentialist theory, this view starts with the unsatisfactory nature of rationalism. Because reasons eventually run out, Rawlsians, like existentialists, reject the idea that political action can be justified by foundational argument. But whereas existentialists despair of the prospect of any reasoned dialogue, Rawlsians hold out the possibility of an “overlapping consensus” on nonfoundational commitments. Even if people disagree on foundations, they might have different, intersecting reasons for coming to the same conclusions about intermediate premises. For (p.134) example, people coming from a wide variety of religious and secular traditions might, for different reasons, arrive at the common conclusion that human life and freedom deserve respect. Reasoned public discourse is possible so long as we restrict ourselves to arguments that derive from agreed-upon premises such as this one—that is, so long as we confine our argumentation to what Rawls called “public reason.”

Rawlsian theory suggests grounds for believing that we do not need constitutional obligation. If there is an overlapping consensus on intermediate principles, that consensus might resolve political disputes without resort to the Constitution. Daryl Levinson’s work, discussed in chapter 4, suggests that there might be such a consensus. If he is right, then Rawlsian theory provides another argument for giving up on constitutional obligation.

The fear, though, is that the area of overlapping consensus is just too thin to resolve some important disputes. Consider, for example, the agreed-upon norm favoring human life and autonomy as applied to the familiar problem of abortion rights. People committed to different foundational doctrines can indeed agree on principles like the right to life and the respect for human autonomy, but this overlapping consensus is too general to resolve the abortion dispute. If one tries to make the principles more specific by claiming, for example, that fetuses are or are not living humans, the consensus collapses.

Faced with this dilemma, a constitutionalist might claim that the Constitution itself is supported by an overlapping consensus and that constitutional argument therefore should count as public reasons. People in our society disagree about religious truth and about a wide variety of secular foundational doctrines, but, for different foundational reasons, they can all endorse the Constitution. Because of the unique history of the Constitution and the regard with which it is held, its commitments and procedures can hold together our political community in a way that a nonconstitutional overlapping consensus cannot.

(p.135) If the Constitution is understood at the highest level of generality, this claim has some plausibility. Virtually all Americans can ascribe to what legal scholar Mark Tushnet has called the “thin Constitution”—the ideals articulated in the Constitution’s preamble, in its twin promises of liberty and equality, and in the Declaration of Independence. To be sure, we are again faced with the problem that these ideals do not command a particular result in a given case. There is nonetheless much to be said for organizing political discourse around these ideals. As I have argued elsewhere, their very open texture provides a reason for why political losers as well as political winners can claim allegiance to them. The ideals therefore provide a basis on which everyone, or nearly everyone, can continue to feel an attachment to the polity. If we all strove to recognize that reasonable people committed to the same ideals could reach different results, that recognition could provide a basis for political community in a diverse society.

I find this version of constitutionalism quite attractive, but it is important to see that it has nothing to do with constitutional obligation. It is, instead, a form of constitutionalism that gives up on obligation. It builds political community precisely by claiming that we can all embrace constitutional ideals without sacrificing our political goals. A poetic constitution of this sort does not force anyone to do anything.

If we look to the Constitution instead for settlement, all the old problems arise. Why should anyone much less everyone suppose that this particular text with all its flaws and eccentricities is the best way to resolve our political disputes? As a contingent and, I hope, temporary matter, there is an overlapping consensus supporting the Constitution. In my view, however, the consensus results from some combination of three factors, none of which legitimately supports constitutional obligation. In part, it results from the (p.136) fact that people now agree with the Constitution’s commands. To the extent this is true, people will act in ways that parallel the commands not because of constitutional obligation, but because they agree on the merits. In part, it results from the Constitution’s open texture which, as I have argued above, permits everyone to use it for their own purposes. To the extent this is true, constitutional obligation again drops out of the picture. A constitution that allows people to do whatever they want to do does not require obedience. Finally, to the extent that the Constitution does create felt obligation—to the extent that people think it forces them to do things they would not otherwise do—it works through the kind of trickery and mystification that I have attempted to dispel in this book.

All of this leaves us where we started. If the Constitution does not lie at the foundation of political argument, and if we are not to give up on foundations, then what are the legitimate groundings for political argument? It is here that the view I have labeled contestability theory takes hold. On this view, resort to foundational principles should be permitted only when they preserve the possibility of legitimate contestation.

This approach reverses the central insight that drives Rawlsian theory. For Rawlsians, political argument should be restricted to public reasons about which there is an overlapping consensus. The problem for Rawlsians is that overlapping consensus has a tendency to either shut down or misdirect argument, at least when the consensus centers on the Constitution.

It shuts down argument because, in our culture, constitutionalists are excused from the obligation to give reasons for their constitutionalism. We treat constitutional obligation as an unchallengeable axiom rather than as one among many contestable foundational principles. A person who does not want to lose the argument must therefore redirect it. Instead of arguing whether a particular course of action makes sense, she must argue that it is in fact constitutional. This redirection is harmless and perhaps even helpful if abstract constitutional principles do no more than provide a vocabulary to express our disagreement. But when we resort to constitutional obligation—when we point to text or intent to command an outcome—the discussion that follows obfuscates (p.137) rather than illuminates the issues before us. It forces us into a conversation about what James Madison and his contemporaries thought and wrote, rather than about what we should do today.

Precisely because there is not an overlapping consensus on the validity of other foundational principles, they do not have this effect. Imagine, for example, that someone claims that a legal requirement that individuals purchase health insurance is unconstitutional. Once upon a time, the great nineteenth-century abolitionist, William Lloyd Garrison, conceded that the Constitution protected slavery and claimed that it was therefore a pact with the devil. But almost no one today responds to constitutional argument by asserting that the Constitution is evil and should, itself, be disregarded. Instead, the inevitable response is that the Constitution, properly understood, clearly permits the insurance mandate. Once this answer is provided, and before we know it, we are off and running into a deeply irrelevant dispute about the meaning of eighteenth-century text and the intent of people long dead.

Now, suppose that instead of claiming that the insurance mandate is unconstitutional, someone claims that it is, say, un-Christian. This is the kind of response that Rawlsians treat as impermissible. Yet, precisely because there is not an overlapping consensus about the legitimacy of using Christian doctrine to resolve political disputes, an argument of this sort does not shut down contestation. To be sure, some people might respond to this claim by contesting the details of Christian doctrine. But many other people will respond by claiming that Christianity is an improper basis for resolving the issue. Resort to foundational doctrine on which there is no overlapping consensus therefore keeps the discussion going in a way that resort to constitutional obligation does not.

The fear, of course, is that this argument will spin out of control. Without an agreed-upon mechanism for settlement, people will resort to force and our political community will unravel. By now, though, we have already encountered this boogeyman many times, and there is no (p.138) more reason to be frightened by it this time than before. As we have already seen, many societies, including on occasion our own, manage to survive and prosper without resorting to constitutions to resolve their disagreements. Precisely because we all have a stake in maintaining a political community, our disputes are likely to be resolved one way or the other. Ultimately, our willingness to reach resolution depends upon our capacity for compromise, for transcending self-interest for the benefit of the common good, and for empathic connection to our political opponents.

Common allegiance to the abstract principles of the Constitution might promote these traits. If we imagine the Constitution as a site for contestation, it might promote a sense that even people who disagree share a common framework. But this version of constitutionalism has nothing to do with obedience. The duty of obedience only takes hold when we look to the Constitution not just to frame disputes, but also to settle them. An insistence on obedience to constitutional commands as understood by one side of a political contest is deeply destructive of political community. The insistence greatly raises the stakes of political argument. Because of the Constitution’s unchallenged and foundational status, a constitutional loss effectively exiles the loser from the community. Of course, people have a strong incentive to avoid a catastrophic loss of this sort. In order to avoid it, they read their own political views into the Constitution and try to exile their opponents. The result is not community, but a shouting match deeply destructive of comity and respect.