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Moral Foundations of Constitutional Thought

Current Problems, Augustinian Prospects

PRINCETON UNIVERSITY PRESS

Normative Impasses in Contemporary Constitutional Theory

Every influential scheme of constitutional theory stands, whether openly or not, on some premises of normative morality. Yet most contemporary American constitutional commentators—on both the political Left and Right—are unwilling to shoulder the normative burdens of their own enterprise. Instead they profess to believe that morality is arbitrary and relative at its foundations. But this view undermines their constitutional scholarship. It certainly makes it awkward to deal with a constitutional text whose pivotal phrases are unabashedly moral in character. On a deeper level, by professing this view they deny what their normative premises require: a real morality, with real normative authority surpassing mere conviction or convention. For nothing arbitrary is finally authoritative. All the same, there remain good reasons to balk at any recourse to real normative authority in constitutional matters. Contemporary constitutional thinking thus faces seemingly intractable problems at its moral foundations.

Normative Presuppositions

That every serious approach to constitutional theory implies some background normative position, some substantive ordering of political values, is by now hardly a matter of controversy. Once Ronald Dworkin's early essays began making this point, it became difficult to hold out for the alternative, which—increasingly seen as implausible—was the view that constitutional theory could suspend itself in midair, independent of any substantive political morality. But as Dworkin said, any theory of law—and especially American constitutional law—is "normative," necessarily "embedded in a more general political and moral philosophy."

Whatever their differences with Dworkin, others have come to similar conclusions. Laurence Tribe considers it "pointless" for constitutional theory to flee from reliance on substantive moral premises; he shows how those who have tried to do so end up importing controversial value premises without admitting or defending them. Walter Berns also faults such approaches for failing to appreciate how the Constitution "was designed with a view to a ... substantive end." A host of others have made essentially the same sort of observation, including Richard Parker, Michael Perry, and Rogers Smith. All more or less agree with David A. J. Richards that underlying normative issues "control the interpretive issues central to understanding constitutional government."

It is not surprising that approaches to constitutional commentary and scholarship imply a normative premise, since nearly all of them are prescriptive in character. Some constitutional theorists contend, for example, that the constitutional prerogatives of democratic majorities ought to be recognized as paramount and ought to be largely exempt from judicial scrutiny. Others devote themselves to arguing that certain fundamental constitutional rights ought to be protected from those same majorities. Whatever the burden of their argument, their prescription implicates them in a moral premise. For prescription implies a morally compelling standard empowering prescription. (Of course observations about moral premises would be beside the point if constitutional theorists were offering their prescriptions as an exercise in idiosyncratic self-assertion. But they are not.)

We can hardly blame commentators and scholars for falling into the imperative mode, for there is another factor at work that strongly reinforces their normative proclivities. It is the American Constitution itself. After all, the Constitution, simply by being a constitution, is normative by definition: It must function as the authoritative architecture for American public life (or at least for American government). And the text doubly reinforces what the concept requires. In the first sentence, the text magisterially announces that its subsequent prescriptions are justified, not in terms of some privately preferred value system, but in terms of Justice and the general Welfare. Moreover, among the most consequential and disputed parts of the text are those couched unapologetically in the language of moral rectitude—such as the Fifth Amendment's requirement of "just compensation" when the state takes property, or the Eighth Amendment's prohibition of "cruel" punishments, or the Fourteenth Amendment's guarantees of "equal protection" and "due process."

If constitutional theory is the activity of raising prescriptive arguments, and of doing so in connection with America's most authoritative public norms (or with the constitutional text's brazenly moral words and phrases), it is no wonder that the work of constitutional theorists is hopelessly entangled with premises of normative morality.

But what exactly is involved when a theory or argument carries normative premises? Although I will explore this issue more systematically in the following chapter, I can begin briefly here. A theory with normative premises, if it is to make sense of itself, must either have or presuppose adequate answers to normative questions. Such questions arise in connection with any typical work of constitutional theory: One theorist may advance the view that only when democracy is construed a certain way can the power of a judiciary ever be legitimate. Why, one wants to know, is that version of democracy the rightful one, as against alternatives? Another theorist may argue that certain rights are more fundamental than others, and so deserving of special judicial protection against democratic majorities. What justifies, one wonders, that particular claim of fundamental rights? Another theorist may insist that constitutional standards be interpreted in one sense, rather than in some other sense that is also possible. Why, one asks, ought we to accept that reading as the authoritative one? Such questions look to the unpacking of a theory's normative premises. And where normative constitutional theorists do not immediately offer answers to such questions, they always presuppose them.

Now, being responsible about one's normative premises means presupposing not just any answer to a normative question, but a good answer. Or at least it means presupposing that there is some adequate basis on which to formulate a good answer. To put the same thing differently, being responsible means presupposing that there really is something truly normative in which to anchor an answer. Why add the qualifications really and truly? Because normative questions demand a certain kind of answer. We can finally satisfy a normative question only in terms of a goodness or a rightness that we recognize as compelling the assent of reason—and as compelling that assent on a moral basis (not on the basis, say, of force, or caprice, or fatigue).

Consider a small example from the domain of constitutional interpretation. Anyone who would interpret the Eighth Amendment must confront the text's prohibition of punishments that are cruel, or, more precisely, of punishments that have the quality of being cruel and the quality of being unusual. "Unusual" is the easy part; it requires only an empirical assessment of prevailing practices of punishment. "Cruel" implies a very different kind of inquiry. Indeed, any theory that successfully interprets the Eighth Amendment must include some theory about what a word like cruel really refers to. Cruelty would seem to be a quality of human actions; it denotes a particular kind of moral deficiency that may mark human actions. Does the quality that this word denotes have a real and intrinsic significance? Or is it merely an empty vessel into which any meaning may be poured—such as an interpreter's own private preference, or the meaning that society, or the dominant group in society, gives it, or the meaning that a subordinate group in society gives it? But can society's dominant group be mistaken and self-interested in the meaning it contrives for such a word? Can a subordinate group be mistaken? Can an individual interpreter be mistaken? If the word cruel does not correspond to a real quality of human actions but is only a blank vehicle to carry any meaning fabricated for it, then what compels us to accept some interpretation of its meaning as authoritative? More deeply, why then ought we to accept a "prohibition" of "cruel" punishments in the first place? The upshot of such questions is fairly clear. If moral words can never refer to an authoritatively real moral dimension to things, there is no possibility of a successful normative theory of the Eighth Amendment's ban on cruel punishments.

But this only begins to illustrate the broader point. A thinker who begins by denying an authoritatively real goodness or rightness—as does someone who embraces moral nihilism or what is now often called "skepticism"—cannot formulate an adequate approach to normative constitutional theory. The reason is obvious. Nothing prescriptive or normative can follow from the premises of nihilist skepticism. Nothing really normative can follow, that is, from the denial of real normativity. If there is no real goodness or rightness, if all we have, at best, are the vagaries of private or socially fabricated conventions, then no moral assessment of human actions is ever truly normative. Moreover, all normative theorizing is, at least in the final analysis, moot. Indeed, someone who honestly adopts the stance of a nihilist skeptic will be embarrassed by his own prescriptions, for they "hold out a promise on which he thinks he cannot deliver," as Michael Moore puts it.

Let me run through this again. Constitutional theory—undoubtedly like all normative political theory—cannot avoid reliance upon moral premises. Moral premises cannot avoid referring to the good (or the right) that they inescapably presuppose. The good cannot successfully actuate moral thinking unless it is perceived to be a real and intrinsically moral good; only such a good allows for satisfactory answers to normative questions. Nihilist skepticism cannot provide normative premises because it dismisses normative questions as such, rather than answering them. To say, therefore, that all approaches to constitutional theory presuppose a normative position is to say that by their own logic they all need to subscribe to a belief in an authoritative moral reality in one sense or another. They could perhaps rely on a theory of the (really) good or on a theory of the (really) right, or on a theory of human nature implying one of these. But whatever their preferred version, their normative discourse implicates them in what we might call "moral realism." (This is not to say, of course, that moral realism is an imperative of all scholarship treating constitutional phenomena.)

Normative Evasions

Yet contemporary constitutional theory shrinks from the normative implications of its own enterprise. Surprising as it may be to those outside the field, most normative constitutional commentary shuns any form of "moral realism." When they become self-conscious about their premises, most American constitutional theorists inveterately affect the posture of nihilist skepticism about moral value. In doing so, of course, they put their work in tension with the overt character of the constitutional text. They also render impotent their own prescriptions about constitutional interpretation and adjudication. A few brief examples from both sides of constitutional theory's political spectrum can illustrate what I mean.

Chief Justice William Rehnquist and former federal judge Robert Bork share a common constitutional philosophy. As expressed in their most theoretically self-conscious essays, this philosophy rests on two basic pillars: a moral nihilism that reduces morality to convention, and a political theory that reduces legitimacy to the will of democratic majorities. Bork has asserted unequivocally that morality is never anything more than a "form of gratification" that people indulge, while Rehnquist has insisted that distinctions between right and wrong are radically subjective preferences, beyond the reach of reason. Hence there exists nothing beyond majority will itself, they argue, that can rightfully bar the majority from establishing, with public force, whichever gratifications or preferences it wills to establish. In other words, Rehnquist and Bork connect the two pillars of their theory by making majority will their conventional surrogate for a real morality. They seek to erect on this foundation a normative theory of interpretation (framers' intent) and of adjudication (judicial restraint).

Such an argument fails them. If there is a good reason why we ought to give primacy to the prerogatives of democratic majority will, it must be a reason with genuine normative force—not merely the "reason" that majority might makes right. But intent on liberating constitutional jurisprudence from moral philosophy, Rehnquist and Bork deny the existence of an independently real morality, or at best declare its contents indeterminate, and so abjure any recourse to it. By rejecting a moral reality in favor of mere convention, they undercut both their theory of democracy and their doctrines of interpretation and adjudication. For a consistent nihilist skeptic—whose evaluative resources extend no further than various personally or socially fabricated conventions—has no truly authoritative argument against the substitution of one convention for another, no standard for finally discriminating among conventions, no way to deny that nothing succeeds like success.

Though the comparison might disquiet him, John Hart Ely's well-known substitution of process norms for substantive ones gives his thought a structural affinity with conservatives like Rehnquist and Bork. If Ely's democratic proceduralism is more capacious than Bork's, is it simply because Ely is a better technician of the democratic process they both revere? The answer must be yes if we take Ely at his word, for he shares Bork's approach to morality. Like Bork, he fills the normative void with mere convention. He simply takes democracy as a given, enthroned by currently prevailing convention, and proceeds to find in its requisites the content of constitutional norms. Of course Ely elevates a particular version of democracy, one that is rather at odds with Bork's. His version requires the judiciary scrupulously to foster the representation of those groups that tend to be squeezed out of democratic processes.

On what basis can Ely justify his distinctive recourse to democracy and the prescriptions he derives from it? He flirts with the possibility of a utilitarian justification of democracy, but dismisses it as irrelevant to his analysis. Ely's constitutionalism, then, begs the same questions as Bork's. He is, in other words, unable to answer the normative question. His denial of any independent moral reality in favor of ungrounded convention renders his normative theory impotent on its own terms.

Laurence Tribe has pointed out that Ely could successfully validate his proceduralism if he were to identify democracy with some substantive norm, if he were to anchor process in some intrinsic source of value. That correction, Tribe argues, could set Ely's process superstructure on a surer footing. Yet Tribe himself spurns the possibility of any legitimate basis for making such a correction. Though he acknowledges that the "flight from substance" is "pointless," he nevertheless dismisses the search for normative legitimacy as "futile." Tribe, in other words, explicitly opts for the nihilist horn of the dilemma he poses.

Tribe's conclusion about the ultimate groundlessness of morality, though, does not deter him from advancing positions on a host of constitutional issues. Thus he advocates affirmative action remedies, urges strict constitutional gender neutrality, champions the right to abortion, and advises that the compensation and contract clauses be construed with a greater redistributionist tilt. How can we possibly understand the normative status of prescriptions like these? If we were to take Tribe's overt moral premises seriously, we would seem to have little alternative but to take them as instances of partisan advocacy, or, worse, as matters of simple willfulness.

Michael Perry's moral thinking, mistaken by some for moral realism, like Tribe's, also excludes anything like the premises of a moral realism. Perry's recent work makes this clear. He argues that the Constitution's key normative provisions symbolize "fundamental aspirations" whose meaning is fundamentally indeterminate. They are indeterminate because we can have no knowledge of any independent moral reality in which the meaning of such aspirations might be anchored. Perry anchors the meaning of these indeterminate principles instead in "tradition," conceived in an entirely historicist manner. This "tradition," which he considers the only possible locus of morality, is historically contingent. It has no intrinsic content; it provides no independent point of reference. Human will—with all its contingency and flux—is as much the creator of Perry's "living tradition" as its creature.

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Excerpted from Moral Foundations of Constitutional Thought by Graham Walker. Copyright © 1990 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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