Do citizens of a nation such as the United States have a moral duty to obey the law? Do officials, when interpreting the Constitution, have an obligation to follow what that text meant when ratified? To follow precedent? To follow what the Supreme Court today says the Constitution means?
These are questions of political obligation (for citizens) and interpretive obligation (for anyone interpreting the Constitution, often officials). Abner Greene argues that such obligations do not exist. Although citizens should obey some laws entirely, and other laws in some instances, no one has put forth a successful argument that citizens should obey all laws all the time. Greene's case is not only "against" obligation. It is also "for" an approach he calls "permeable sovereignty" all of our norms are on equal footing with the state's laws. Accordingly, the state should accommodate religious, philosophical, family, or tribal norms whenever possible.
Greene shows that questions of interpretive obligation share many qualities with those of political obligation. In rejecting the view that constitutional interpreters must follow either prior or higher sources of constitutional meaning, Greene confronts and turns aside arguments similar to those offered for a moral duty of citizens to obey the law.
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About the Author
Abner S. Greene is Leonard F. Manning Professor of Law at Fordham University.
Table of Contents
The Case against Fidelity to Law, for Citizens and for Officials 1
A Roadmap and Some Baselines for Discussion 4
The Multiple Sources of Citizens' Obligations 20
The Relationship between Obligation and Legitimacy 24
1 Against Political Obligation 35
Consent, Fair Play, and Political Participation 35
Natural Duty and Associative Obligation 56
Systemic Stability 94
2 Accommodating Our Plural Obligations 114
Exiting from the Law 117
Permeable Sovereignty and the Religion Clauses 139
The Problem of Illiberal Groups 157
3 Against Interpretive Obligation to the Past 161
The Authority of Constitutional Creators, and Readers 165
Debunking Prior Authority 172
The Proper Role of Fit in Constitutional Interpretation 201
Why My Jeffersonian Position Is neither Anti-Law nor Anti-Constitutionalism 206
4 Against Interpretive Obligation to the Supreme Court 210
The Role of the Supreme Court in Settling Constitutional Issues 212
Interpretive Pluralism 215
Guidelines for Officials in Deciding Whether to Follow the Court 223
The Court's Response to Interpretive Challenge 247
What People are Saying About This
In Against Obligation, Abner Greene upends conventional wisdom about several fundamental political questions. Why and when must people obey the law? What does religious freedom require in a liberal democratic state? Must judges and citizens respect historical views about constitutional meaning? Smart, ambitious, provocative, and original—this tightly argued and broad-ranging book compels readers to reexamine basic assumptions about political obligation, constitutional democracy, and religious freedom.
Christopher Eisgruber, Princeton University
Against Obligation is one of the finest contributions to constitutional theory in recent years. Abner Greene shows the connections between questions of political and interpretive obligation in this remarkably incisive work. His arguments against the leading justifications of political and interpretive obligation are vigorous and fair. And his arguments for the multiple sources of obligation and interpretive authority in a liberal democracy are creative, normatively attractive, and deeply grounded in a powerful account of our constitutional order.
James E. Fleming, Boston University